By Sumeysh Srivastava
The 1994 Rajshri production blockbuster, Hum Aapke Hain Koun, is like a crash course for anyone looking to understand north-Indian, upper-caste wedding traditions. The Movie has had a seminal influence in ensuring that certain rituals, like the elaborate Sangeet and the Joota Churai ceremony, have become essential parts of weddings, especially in north and central India. Amongst the many memorable characters in the movie, Tuffy, the family dog is a favourite. He plays an important role in family recreational activities and in the wedding rituals. However, his most important contribution is in the end. Nisha and Prem are in love, but Nisha has to marry Prem’s elder brother Rajesh. This is because Rajesh was earlier married to Nisha’s older sister Pooja and has a son from that marriage. Pooja dies and it is decided that Rajesh should marry Nisha so that she can be the mother the child apparently needs. Prem and Nisha decide to sacrifice their love and Nisha sends a letter to Prem through Tuffy. Tuffy, however, shows an independent streak and takes the letter to Rajesh, who subsequently halts the wedding and we get a happy ending of Nisha and Prem together. The question to consider is that was Tuffy doing this because he could not see love being sacrificed? Or was he trying to save his beloved family from legal trouble? Maybe he thought that Rajesh marrying his wife’s sister would be prohibited under Hindu Law. Let’s try and understand this
Most ancient systems of law prohibit marriage among near relations. Ancient Hindu law prohibited marriages within the same gotra, as well as inter-caste and inter-religious marriages. Under modern Hindu Law, these marriages are perfectly valid, though a Hindu cannot marry a non-Hindu under Hindu law and can do so only under the Special Marriage Act.
Modern Hindu law prohibits marriage on account of relationships under two counts:
- Sapinda relationship
- Degrees of Prohibited relationship.
We will be discussing the latter. Degrees of prohibited relationship are stated in Section 3(g) of the Hindu Marriage Act, 1955. 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;
A lineal ascendant or descendant means someone who is related in a direct line to a person, such as a person’s father, mother, grandfather and so on. Someone like an uncle, or a nephew is known as a collateral descendant.
Under Modern Hindu Law, for the purpose of degrees of prohibited relationships, it includes relationships which are legitimate as well as illegitimate, relationships by full blood, half blood and uterine blood, and relationship by adoption. In legal terms, uterine relationships mean a relationship between two or more people from the same mother. However, the law permits relationships within the prohibited degrees of relationship is this is seen as a customary practice. How does someone go about proving customary usage of a practice? For that, we have to go back in time a bit.
In H.H. Mir Abdul Hussain Khan vs.Bibi Sona Dero, decided by the Privy Council in 1917, the court had to deal with a situation where it was contended that division of property should happen, not as per religious laws, but as per a custom which applied to the people belonging to a certain tribe, to whom the family members in dispute belonged. The court found that the custom suggested had not been applied consistently in other property divisions of members belonging to the tribe. The court also found that community leaders also denied the existence of such a custom in the community. Some scattered instances of a practice being followed were not enough to show that custom had been established. This was reinforced in a case before the Madras High Court in 1970, K. Kamakshi vs K. Mani, where it was held that custom needs to be established inductively, and the time period and the number of instances required to show a custom existing would depend on the facts of each case. In addition, in Savitri Devi v. Manorama Bai, a case decided by the MP High Court in 1998, this position was further refined when the court held that the party relying on custom must prove the existence of such custom and that it was ancient, certain, reasonable and not opposed to public policy.
A marriage in violation of the requirement of the degree of prohibited relationships is void and anyone performing such a marriage can go to jail for up to 1 month, and may also have to pay a fine of up to Rs. 1000.
Going back to the question with which we started this post, If you look carefully at Section 3(g)(iii), the provision says that a “Wife cannot marry the brother of her husband”. But it isn’t vice versa, it doesn’t say that the husband cannot marry the sister of his wife.
So, Tuffy, being smarter than your average dog, probably read the law and figured out that the marriage was legal. He was motivated by a nobler purpose in his decision to interfere with the marriage.
Sumeysh Srivastava is a Programme Manager at Nyaaya and a Senior Resident Fellow at Vidhi Centre for Legal Policy. Views are personal.
