In this article, Sirmaur Sudhakar of Kiit law school, Bhubaneswar discusses Can marriage between maternal uncle and niece be a valid marriage in India?

Concept of Marriage

The term marriage has been defined by different people in different ways. Even the sociologists are not able to agree on a single meaning. Marriage can be defined as a legally recognized social contract between two people, traditionally based on a sexual relationship and having a permanence of the union. While in creating an inclusive definition, one should also consider variations, such as whether a legal union is required, or whether more than two people can be involved i.e.,polygamy. Some other variations on the definition of marriage might include whether spouses belong to same sex or are of opposite sexes, and how one of the traditional expectations of marriage (to produce children) is understood today.

The relationship between the institution of marriage and the institution of family is of great interest for the sociologists because, marriages are what create a family, and families are the most basic social unit upon which society is built.Marriage and family create status roles that are sanctioned by society.

How is marriage contracted

Different religions have different personal laws pertaining to the marriage. The validity of a Hindu Marriage, registration of Hindu Marriages, Restitution of Conjugal rights, Judicial Separation, Nullity of Marriage, divorce, etc, have been provided under the Hindu Marriage Act, 1955. The Hindus are uniformly governed by one single system of law-the codified portion of Hindu law. The Hindu Marriage Act is included under the Hindu law.

The Hindu law recognizes prohibition on the basis of blood relationship, called Sapinda relationship.

What is the ambit of the Hindu Marriage Act

The Act applies

To any person who is Hindu by religion in any of its forms or development, including  a virashaiva, a Lingayat or a follower of the Brahmo, Prathana or Arya Samaj;

to any person who is a Buddhist, Jaina or Sikh by religion, and

To any person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved to any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

A few important definitions discussed under Section 3 of the Hindu Marriage Act, 1955-

Custom and Usage– signifies any rule which, having been continuously and uniformally observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family.

Full blood and half blood– two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives.

Uterine blood– two persons are said to be related to each other by uterine blood when they are descended from a common ancestor but by different husbands.

The marriage in Islam, or Nikah, is not a sacrament as in Hinduism rather it is a civil contract between a man and woman to live as husband and wife. Muslim marriage is also a devotional act I.e., ibadat. The Prophet said that marriage is obligatory for every physically fit Muslim, that marriage is equal to jehad (holy war) and that he who marries completes half his religion, while the other half is completed by leading a righteous life.

The Christian marriage is governed under the Christian Marriage Act, 1872. While the marriage of a christian with a non-christian under the Indian Christian Marriage Act, 1872 is valid.

For the marriage of Parsi, the Parsi Marriage and Divorce Act has been made. A Parsi cannot marry a non-Parsi under Parsi law, though he or she may enter into such a marriage under the Special Marriage Act, 1954.

Conditions for a valid marriage Under Hindu Law

The Hindu Marriage Act has laid down several conditions for a valid marriage:

• The consent for the marriage should be free.
• The boy must be at least 21 years old and the girl at least 18 years.
• Parties should be of sound mind.
• Neither party should have a spouse living at the time of the marriage.
• The parties should not be in a prohibited relationship i.e., aunts, cousins, uncles, etc.
• The parties should not be Sapindas of each other.

Under Muslim law

• The parties must be of sound mind.
• Parties should have attained puberty.
• The girl must have completed 15 years of age and the boy atleast 18 years of age.
• To qualify for a Muslim marriage both parties must be Muslims.

Under Christian law

• The Indian Christian Marriage Act applies to marriage between two Christian individuals. The conditions under this Act are almost similar to HMA.
• Neither person should have a spouse living at the time of marriage.
• The groom must be at least 21 years of age and the bride at least 18 years.
• The two parties I.e., the bride and the groom need a licensed person as well as two witnesses.
• Finally, they need to speak certain words in front of these persons.
• After this, they will be married couple as per the law.

Under Parsi law

• The Parsi Marriage and Divorce Act Lays down the following conditions:
• The Parsi traditions have to be followed for the marriage.
• “Ashirvad” ceremony must take place in the presence of a priest and two Parsi witnesses.
• Just like the Hindu Marriage Act, no prohibited Relationships.
• Age requirement is same i.e.,21 for the groom and 18 for the bride.

What is Sapinda relationship and when two persons are said to be Sapinda of each other?

The answer to this question has been discussed under the Section 3 of the Hindu Marriage Act, 1955.

The term “Sapinda relationship” with reference to any person extends as far as the third generation(inclusive) in the line of ascent through the mother, and the fifth(inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

Two persons are said to be “sapinda” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.

What is “degrees of prohibited relationship”?

It has been defined under the Section 3(g) of the Hindu Marriage Act, 1955.

Two persons are said to be within the “degrees of prohibited relationship”-

• if one is the lineal ascendant of the other; or
• if one was the wife or husband of a lineal ascendant or descendant of the other; or
• if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother or the other; or
• if the two are brother and sister, uncle and niece, and and nephew, or children or brother and sister or of two brothers or of two sisters.

What are consanguineous marriages

When one marries biologically related or blood relatives then it is consanguineous marriage.

Types of consanguineous marriage:

1) First cousins- uncle’s son marries auntie’s daughter or vice versa.

2) Maternal uncle marries his niece (sister’s daughter).

What are the problems with the consanguineous marriage

• Studies showed that consanguinity could increase the incidence of many blinding disorders like leber congenital amaurosis, Usher syndrome etc.
• It could increase the risk of inheriting any one of the 4968 (autosomal recessive) genetic diseases.
• It leads to death of infants before, during or immediately after birth, increased incidence of birth defects, increased susceptibility to disease etc.

Can marriage between maternal uncle and niece be a valid marriage in India

Under Hindu law, marriage between prohibited degrees of relationship and sapindas is prohibited. The marriage will be considered as incest if it takes place between relations of sapindas. Therefore, the marriage among Hindus is prohibited  but if the customs allows so then it would not be considered as invalid.

Under Muslim law, on account of consanguinity one cannot marry one’s mother or grandmother how high soever, one’s daughter or grand-daughter how low soever, one’s sister, full consanguine or uterine, one’s niece or grand-niece how low soever, or one’s paternal or maternal aunt or great-aunt how high soever.

In the Parsi given the community’s small size and the strict rules about marriage and membership to Parsi community it is not surprising that marriage between uncles and nieces sometimes occur but not nearly as often as they used to be. Such type of marriage is voidable and not totally invalid among them.

The Christian Marriage Act, 1872 says that no certificate of marriage shall be issued if there are any impediments of consanguinity or affinity.Further, section 88 of the Act lays down that ‘Nothing in this Act shall be deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into’.

Conclusion

In northern India, Hindus have outlawed consanguineous marriage by avoiding the same ‘gotra’ or patrilineal relationship between the probable bride and the groom. Whereas, in southern Indian there are communities which practice consanguineous marriages. The uncle-niece (especially a man and his elder sister’s daughter) marriage exists. The ritual named Maman Kalyanam (uncle niece marriage) remains in practice in Tamil Nadu. The principle involved is that of return-the family that gives a daughter expects one in return, if not now, then in next generation. The effect of such marriages is to bind people together in relatively, tight-knit kin groups. It is not illegal as it is their custom.The legality of Uncle-niece marriages was confirmed in the Hindu Code Bill of 1984. Some Sophisticated South Indians consider uncle-niece marriage outmoded. Because of the consanguineous marriage in Tamil Nadu according to Mohan Kameswaran, senior consultant ENT surgeon, Chennai, six out of 1000 children had hearing loss in the year 2013.

References

The Hindu Marriage Act, 1955.

The Parsi Marriage and Divorce Act, 1936.

The Christian Marriage Act, 1872.

Family law by Paras Diwan.

www.thehindu.com

https://blog.ipleaders.in/incest-legality/

www.ijsr.net