FAMILY LAW-1

HMA Week 4
Section 5(iv) &(v)
◦ 5 Conditions for a Hindu marriage: A marriage may be solemnized between any two Hindus, if the
following conditions are fulfilled, namely:

◦ (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of
them permits of a marriage between the two;
◦ (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a
marriage between the two;
 Prohibited Degrees of Relationships
◦ 2(g) “degrees of prohibited relationship”-two persons are said to be within the “degrees of prohibited
relationship”—
◦ (i) if one is a lineal ascendant of the other; or
◦ (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
◦ (iii) 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 of the other; or
◦ (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister
or of two brothers or of two sisters;
Lineal Ascendants/ Descendants
P

Children

Grand-
Children

Great
Grand-
Children
Wife/Husband of Lineal
Ascendants/Descendants
P W/H

Children W/H

Grand-
Children W/H

Great-
Grand W/H
Children
 Siblings, Aunt, Uncles, Cousins

◦ Brother-sister (whether full, half or uterine blood)

◦ Exception: If there is a prevailing custom wherein those within prohibited degrees can get married then
that shall override the substantive provisions of the law.
 Other categories:
Spouse of Siblings/Uncles/Grand-parents
◦ Brother’s wife
◦ Father’s brother’s wife
◦ Mother’s brother’s wife
◦ Grand-father’s brother’s wife
◦ Grand-mother’s brother’s wife.
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◦ List of prohibited relationships for a
man
◦ Female ascendant/descendant
List of prohibited relationships for a
◦ Wife of any of ascendant/descendant (eg-
Father-in-law cannot marry daughter-in-
woman
law)
• Male lineal ascendant/descendant
◦ Wife of brother
• Husband of ascendant/descendant (eg- mother-
◦ Wife of the father’s brother in-law cannot marry son-in-law
◦ Wife of the mother’s brother • Brother
◦ Wife of grand-father’s brother • Father’s brother (Uncle-niece)
• Mother’s brother (Uncle- niece)
◦ Wife of grand-mother’s brother
• Brother’s son (Aunt-nephew)
◦ Sister • Sister’s son (Aunt-nephew)
◦ Brother’s daughter (Uncle-niece) • Father’s brother’s son (First cousin)
◦ Sister’s daughter (Uncle-niece) • Father’s sister’s son (First cousin)
• Mother’s brother’s son (First cousin)
◦ Father’s sister (Aunt-Nephew) • Mother’s sister’s son (First cousin)
◦ Mother’s sister (Aunt-Nephew)
◦ Father’s sister’s daughter (First cousin)
◦ Father’s brother’s daughter (First cousin)
◦ Mother’s sister’s daughter (First cousin)
◦ Mother’s brother’s daughter (First cousin)
 Sapinda
◦ Concept in Hinduism. Two meanings:
◦ Two people connected through the same body in the form of a common ancestor
◦ Someone who can offer oblation or pind-daan
◦ Broader than the categories of prohibited degrees
◦ 2f) (i) “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;
◦ (ii) two persons are said to be “sapindas” 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;
Finding your Sapinda
Trace the line of ascendant relationships to find out if the parties have a common sapinda relationship

- A wants to marry his paternal grandfather’s uncle’s son’s daughter. Can he?
- A wants to marry her father’s paternal uncle’s daughter’s son. Can she?
Arun Navalkar v. Meena Arun Navalkar,
Bom HC 2006
◦ Facts: Husband sought nullity of marriage on the basis of Sapinda relationship.
Issues:
a) Whether the relationship between a Meena and Arun fell into the category of a Sapinda relationship?
b) Who has the burden of proof to show that something is a valid custom in contravention of the
general Sapinda relationship?
c) When can a custom said to be proved?
 Issue 1: Were they Sapindas of each
other?

The ascent for both the parties are their respective fathers. Hence, their lineage is therefore male ascent.
The wife however, claims that the sapinda relationship is not established as their lineage is intervened by
her grand mother who is the husband's parental aunt. However, in the definition of sapinda relationship
any breakage of the relationship by such intervening is not contemplated. The parties have a common
lineal ascendant (ancestor) Moroba within 5 generations of each of them. - (Para 7)
 Issue 2: Who has burden of proof?
◦ S. 101, 102, 103 IEA

Onus of proving a custom lies on the party propounding it. Section 5(v) says that a relationship where
either party is a sapinda of each other is void, unless there is a custom to the contrary. So the person
relying on the existence of custom has to prove its prevalence and existence.
Here, it was upto the wife to prove custom since husband was alleging nullity.
 Issue 3: proving a custom
◦ “It is settled law that any custom, which one of the sources of the whole Hindu law, is characterized by
its continuity, longevity and uninterruptedness. The instances of such custom must therefore, be over a
long period of time, occurring at regular intervals without leaving the span of time without such
illustrations. Such custom must be shown to exist and continue to exist before and after the parties'
marriage. It must further be shown to be accepted by the community” (para 16)
Any custom, which is a source of Hindu law, must be continuous, longlasting, and unbroken
. Such customs must occur over a long period of time, at regular intervals, without breaks. S
uch custom must exist before and after marriage. It must be community-approved.
Wife produced 9 instances of sapinda marriages within their community. However, only two were valid.
However, the years of marriage were not known and therefore the span of time to show the existence of the
custom is not known. Therefore the longevity and uninterruptedness of the custom was not proved. Nor
could she prove that it was accepted by the community as a whole.
Child Marriage under HMA
◦ Section 5. Condition for a Hindu Marriage.- A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled, namely:
(iii)the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage
◦ Section 11- void marriage
◦ Section 12- voidable marriage
◦ Section 13(2)- A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the
ground.
◦ iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has
repudiated(refuse to accept) the marriage after attaining that age but before attaining the age of eighteen years.
◦ Section18. Punishment for contravention of certain other conditions for a Hindu marriage.- Every person who
procures a marriage of himself or herself or to be solemnized under this Act in contravention of the conditions specified
in clauses (iii), (iv), and (v) of Section 5 shall be punishable- (a) in the case of a contravention of the condition specified
in clause (iii) of Section 5, with simple imprisonment which may extend to fifteen days, or with fine which may extend
to one thousand rupees, or with bot
Child Marriage under HMA

◦ Neither void nor voidable (unless consent obtained from guardian by fraud).
◦ Punishable offence. However, minimal punishment. And that too, only for parties to the marriage.
◦ Limited right of divorce available to the girl: Girl married before 15, regardless of whether marriage was
consummated, can seek divorce by filing petition u/s 13(2)(iv). Must do so before turning 18.
 P. Venkatramana v. State, 1976, AP HC

◦ Issue: Whether marriage in contravention of S. 5(iii) is void ab initio.

◦ Facts: Wife filed a complaint against her husband and 10 others, alleging that the husband had
committed an offence under S. 494 of the IPC by marrying another girl. Husband argued that their
marriage was void ab initio since they had married when they were 13 and 9 yrs respectively.
◦ Reasoning:
◦ Doctrine of Factum Valet: The factum valet means the act which should not be done is valid when
it is done. The hundreds of text does not deny the fact. This doctrine is applicable when there is
obligation and not the legal prohibition for a thing. In other words, if the act is accomplished and
eventually completed, the action will be considered lawful and binding.

◦ - Examples
◦ - Padmavathi v. Smt Jayamma (RFA no 916 of 2014) (no formal solemnization, but long cohabitation,
so court used this doctrine to hold that the marriage would be treated as valid).
◦ Neither S. 11 nor S.12 lay down any consequences for violation of S.5(iii).

◦ The Court should lean against the interpretation of any provision of law which is liable to render
innocent children of the marriage, bastards (Section 16)

◦ Insertion of new clause under S. 13(2)(iv) in 1976 which gave the right to a wife to get a decree of
divorce if her marriage was solemnised before she attained 15yrs of age. Shows legislature didn’t
think child marriage was void.
Prohibition of Child Marriage Act, 2006
◦ Def of child u/s 2(a) (Male: 21 yrs; Female: 18yrs)*

Sec 3: Voidability of Child marriage solemnized before or after the commencement of this act is
voidable at the option of the contracting party who was a child at the time of marriage.

Petition can be filed to declare marriage void within 2 yrs of attaining majority. (therefore, girl can file
petition till 20 yrs of age while a boy can file a petition till 23 yrs of age)
Child marriage void in certain circumstances:

Section 12. Marriage of a minor child to be void in certain circumstances.—Where a child, being a minor—
◦ (a) is taken or enticed out of the keeping of the lawful guardian; or
◦ (b) by force compelled, or by any deceitful means induced to go from any place; or
◦ (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after
which the minor is sold or trafficked or used for immoral purposes,
such marriage shall be null and void.

Section 14. Child marriages in contravention of injunction orders to be void.—Any child marriage solemnised
in contravention of an injunction order issued under section 13, whether interim or final, shall be void ab initio.
Offences under PCMA
Section 9. Punishment for male adult marrying a child.—Whoever, being a male adult above eighteen years of age, contracts a child
marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh
rupees or with both.
Section 10. Punishment for solemnising a child marriage.—Whoever performs, conducts, directs or abets any child marriage shall
be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh
rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.
Section 11. Punishment for promoting or permitting solemnisation of child marriages.—(1) Where a child contracts a child marriage,
any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or
unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits
it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child
marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may
extend up to one lakh rupees:
Provided that no woman shall be punishable with imprisonment.
(2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor child has contracted a
marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised.
Section 20- Enhanced punishment under HMA
PCMA- conflict with other laws
◦ Personal laws

◦ The Prohibition of Child Marriage (Amendment) Bill, 2021 would have taken care of this and increased the age
of marriage of girls to 21

◦ IPC
◦ Sec 375, Exception. Made rape within a child marriage legal. (Criminal Law Amendment 2013 raised the general
age of consent to 18, but lift this exception untouched).

◦ POCSO
◦ Sec 2(d) Child: Any person below the age of 18
Independent Thought v. Union of India

◦ PCMA will prevail over other personal laws (obiter by Justice Deepak Gupta)

◦ Recognized rape within child marriage by reading down the exception to S. 375. Age of consent must be
read to be 18 and not 15. Thus bringing it in harmony with POCSO.

◦ Recommended that all states follow the amendments made to the PCMA by the State of Karnataka which
has declared all child marriages as void in 2016. However, declaration of voidness does not preclude
woman from matrimonial reliefs under the PCMA.
How are Child Marriage Laws
Misutilized?
- One survey, conducted by PLD, found that 65% of the cases on child marriage are cases of consensual
affairs and elopement.
- Section 375, IPC- after 2013 and 2018 amendment, the age of consent has now been revised to 18 and
the mandatory minimum punishment for intercourse with a girl below 18 is 20 years. No scope for
judicial discretion. Usually combined with cases u/s 363
- POCSO- criminalizes all sexual activity with children below 18, regardless of whether it is a minor
person or an adult. Section 19 makes it an obligation on anyone with the knowledge of any crime
under this act to report it.