New Delhi: Years of court battles, allegations of dowry harassment by one spouse and cruelty by another, Delhi High Court Tuesday declared a couple’s marriage of 31 years “void ab initio” on the ground that they were in a “sapinda” relationship — where spouses have a common ancestor within the past three to five generations — which has been prohibited under the Hindu Marriage Act (HMA) of 1955.
A bench of justices Suresh Kait and Neena Krishna Bansal delivered the judgment on a petition filed by the husband, who had sought divorce on the grounds of cruelty and disrespect of conjugal rights. He had also claimed that their marriage fell in the prohibited category of the HMA.
Under the 1955 Act, two people will be said to be ‘sapindas’ if they have a common ancestor “as far as the third generation [inclusive of the person] in the line of ascent through the mother, and the fifth [inclusive of the person] 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”.
According to the HC judgment, a copy of which is with ThePrint, the couple got married in 1992, but had been residing separately since 1995.
While the wife had in the past filed a criminal case against her husband and his family, accusing them of dowry harassment and criminal intimidation, the accused were acquitted after trial.
Meanwhile, the husband moved the HC for divorce, claiming cruelty by his wife, after a trial court rejected his divorce plea on the ground that the man had failed to establish in court that his wife had treated him cruelly.
According to the HC judgment, the trial court had also refused to end the marriage on the ground of it being a “sapinda” relationship. It had held that there was a custom in the community to which the couple belonged, of first cousins — those born to a brother-sister duo — marrying each other. The trial court observation was based on statements of witnesses examined during the hearing.
In this case, the grandmother of the wife is the sister of the husband’s father.
‘Uninterruptedness of custom’
While appearing in Delhi HC, the woman did not deny that she and her husband were in a ‘sapinda’ relationship. However, she insisted it was a custom in their community — the Jhang community.
The HC judgment quotes the wife as saying that this kind of marriage was a long-standing practice in her community and she and her husband were married in accordance with that custom.
However, the HC ruled that a customary practice can be termed long-standing only when it has not been interrupted. It said, in order for a custom to override the Hindu Marriage Act, 1955, it has to be proven that the custom existed prior to the act’s implementation.
In this case, the bench added, the wife had not proven the factum of “uninterruptedness of the custom”.
“The respondent in the present case though proposed to justify the validity of a marriage by claiming the same to be a custom, but the incidents relied upon by the respondent do not have attributes of either continuity or longevity,” the bench said.
It added: “Merely because the stray incidents of marriage between the ‘sapindas’ have not been questioned by the community, would not make out a case of positive assertion of a prevailing custom”.
It thus declared the marriage void under section 11 of the HMA.
On the aspect of cruelty, particularly the husband’s charge that the wife forced him to separate from his parents, the HC observed: “It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family”.
According to the court judgment, while the wife had forced her husband to separate from his family, she too started living away from him, at her paternal house, which the bench observed must have been “torturous for the husband”.
It pointed to the separation of almost 28 years between the husband and wife and added: “”Such separation of almost 28 years is an instance of utmost mental cruelty, asking for immediate severance of matrimonial relationship on the ground of cruelty u/S 13(1)(ia) (relating to grounds for divorce) of the (Hindu Marriage) Act.”
(Edited by Poulomi Banerjee)