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Context: The Delhi High Court rejected a petition challenging the constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), maintaining the prohibition on sapinda marriages between Hindus unless customs permit it.

Sapinda Marriages

• A sapinda marriage involves individuals closely related within a specific degree of kinship.
• Defined under Section 3(f)(ii) of the Hindu Marriage Act (HMA): "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."
• The prohibition under HMA (Section 5(v)): Section 5(v) of the HMA prohibits marriage between two Hindus if they are sapindas, except when the customs or usages governing each of them permit such a marriage.
• Prohibition Extent:
  • On the mother’s side, marriage is prohibited within three generations in the "line of ascent."
  • On the father’s side, the prohibition extends to five generations.
• If a sapinda marriage violates Section 5(v) without an established custom permitting it, the marriage is declared void, treated as if it never took place. The sole exception is when the customs or usages of each permit sapinda marriages.

International Perspective on Incestuous Marriages

Europe

• In France, incest between consenting adults was decriminalized under the Penal Code of 1810.
• Belgium inherited this legal position, and despite a new Penal Code in 1867, incest remains legal.
• Portuguese law does not criminalize incest.
• Republic of Ireland while recognizing same-sex marriages in 2015, the law on incest has not been updated for same-sex relationships.
• Incest is a crime in Italy only if it causes a "public scandal."

United States

• Incestuous marriages are generally banned in all 50 states. However, New Jersey and Rhode Island permit incestuous relationships between consenting adults.

Conclusion

• The Delhi High Court's decision reaffirms the importance of established customs in sapinda marriages, highlighting the need for stringent proof. The court's acknowledgement of the regulation of marital choices reflects concerns about potential societal implications. Comparatively, laws on incestuous relationships vary globally, influenced by cultural and legal factors.

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