delhi high court

Delhi High Court: An appeal was filed by the appellant under Section 28 of the Hindu Marriage Act, 1995 read with Sections 11 and 23 of Hindu Marriage Act seeking to set aside/quashing the judgment and decree of nullity dated 23-10-2007 in HMA No. 396 of 2003 whereby marriage between the parties has been declared null and void. Suresh Kumar Kait, J., upheld the impugned order and held that the marriage between the parties was null and void having fallen within the category of sapinda, however, there is no dispute to the legitimacy of the child.

The parties to the present petition were married as per Hindu rites and ceremonies on 04.12.1998 in Delhi and from the wedlock a female child was born on 28.08.1999. The husband (respondent) preferred a petition to declare the marriage between the parties as void ab initio being in contravention of subsection 4 of Section 5 of the Hindu Marriage Act because his relationship with the wife (appellant) falls within the degree of prohibited relationships, as parties were sapindas of each other as they are the children of brothers and in the fourth degree of prohibited relationship from the father’s side.

The Trial Court held that the fathers of the parties were real brothers and so, the marriage between the parties fell within the meaning of sub-clause (f) of Section 3 of the Act, which defines the terms of degrees of prohibited relationships. It further held that though the marriage of both parties was solemnized with the consent of their parents, however, the same is not covered under the customs and usage as contemplated under the Act. The trial court held that the wife failed to prove her case within the ambit of Section 11 of the Act and declared the marriage between the parties null and void, thus, once the marriage is declared null and void in the eyes of law, the party concerned is not entitled to any maintenance.

The wife filed an appeal stating that the Family Court did not consider the issue as to whether such kind of marriages were performed in the “Grovers” which is a sub-caste of Arora, which fact in fact has been admitted by both sides. The wife has claimed that the witnesses examined before the Trial court had stated that such marriages are customary in “Aroras”.

The Court noted that the Hindu Marriage Act, 1955 restricts the definition of a sapinda relationship only up to third generation of the mother and the fifth generation of the father. However, marriage in a sapinda relationship is permissible if tradition or custom permits such a relationship. The sub-clause (iv) of Section 5 of the Act provides that the parties are not within the degree of prohibited relationship unless the custom or usage governing each of them permits a marriage between the two. Thus, whether a marriage falls within the meaning of sapinda, has to be therefore established by finding out the customs in force in the family, tribe or the group, which by afflux of time has obtained the force as the law.

The Court further noted that though the wife examined herself and six other witnesses to show that there existed a custom of marriage within sapinda. However, these marriages have been performed pursuant to coming into force the Hindu Marriage Act, 1955. The wife and husband, both being fourth in generation to their fathers, who happen to be real brothers, clearly fall within the category of sapinda. Thus, the wife was not able to establish her case that her marriage with the respondent is an exception to the definition of sapinda. Hence, there is no error in the judgment passed by the Trial Court whereby the marriage between appellant and respondent has been held to be null and void.

On the aspect of interim maintenance and other rights of the son of the parties born out of this wedlock is concerned, the Court observed that though the relationship between the parents may not be sanctioned by law but the birth of a child in such relationship must be viewed independently and provisions of Section 16(3) of the Act do not impose any restriction on the property right of such children, except limiting it the property of their parents and hence, such children will have a right to whatever becomes the property of their parents, whether self-acquired or ancestral.

Thus, the Court held that the marriage between has been declared null and void having fallen within the category of sapinda, however, there is no dispute to the legitimacy of the child. The child son of the parties was born in the year 1999 and is major and entitled to his rights as per law.

[Neetu Grover v Gagan Grover, 2023 SCC OnLine Del 6367, decided on 09-10-2023]

Advocates who appeared in this case :

Mr. Prerna Arora, Ms. Devika Gupta & Ms. Mallika Saxena, Advocates for petitioner

In person with Mr. Nikilesh Ramachandran, Mr. Shubham Seth, & Mr. Anuj Panwar, Advocates

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