WHAT IS THE STATUS OF INCESTUAL MARRIAGES IN INDIA?

 Author: Neket Khatri, Rizvi Law College, Mumbai University.

The area of law which has its obscurity maintained is called Grey area in law. Incestual marriage in India is a grey area in law. There is no penal provision which explicitly deals with incest as an offence. Personal law does have an assertion on prohibited incestuous relationships. Marriage inheritance law does prohibit relationships developed out of incestual marriages. Is incest illegal in India? What is the position of children born out of the incestuous relationships in India? What are the legal provisions regarding the incestuous relationship in India? Can we ban Incestual marriages?

Ancestors, illegitimate, void, legitimate, children, son, daughter, prohibited degree, nephew, uncle, niece, affinity, fosterage, personal laws, inheritance, incest, sapinda, consanguineous, marriage, consanguinity, common lineage, born.

Modern definitions of incest have a fairly consistent core of first – (50% shared DNA) and second – (25% shared DNA) relatives, procreation among whom is termed ‘extreme inbreeding’. As throughout the history, consanguine marriage remains related to contemporary incest taboos. Consanguineous marriages are those marriages where 2 cousins marry with each other while having the same common ancestors. 

Is Incest a crime in India?

No. Incestuous Marriages are nowhere defined in the penal provisions in India. Therefore, if individuals are involved in incest, they cannot be punished for a crime of incest, although, the may be punished for any other legal ground such as adultery, sodomy or rape. Incest is the crime of sexual relations or marriage taking place between a male and female who are so closely linked by blood or affinity that law prohibits such activity. When anyone enters into an incestuous relationship willingly, it is not an offence, per se the penal provision of India. Thus, there is no offence is called Incest as per the Indian Penal Code or Bharatiya Nyaya Sanhita. The provision of personal laws which condemn incest.

Hindu Personal laws prohibiting marriages like Incestual Marriage?

In Hindus, marriage between prohibited degrees of relationship and sapindas is prohibited. Sapinda means, ‘connected by particles of the same body’. After the Third in the mother’s line and the Fifth in the father’s line Sapinda relationship ceases to exist. Where there is a sapinda relationship between a boy and girl they can’t marry. Therefore, incest marriage among Hindus is prohibited.  

According to Hindu Marriage Act, two people cannot marry if they are within prohibited degree of relationship. Prohibited degree includes full blood or half blood, parallel cousin, cross cousins, nephew and aunt, brother and sister, uncle and niece. The marriage is void, under section 5 of Hindu Marriage Act, unless the custom of the community permits it. 

Muslim Personal Law On Incest?

    Prohibited Degree of Relationship In Muslims

• Consanguinity

• Affinity

• Fosterage

In Muslim people who come within blood relationship or relationship considered as prohibited degree and not allowed to marry with each other. Consanguinity prohibits a man from marrying the following due to their belongingness with respect to blood relations. A man is not allowed to marry his mother, grand-mother, daughter, grand-daughter, niece, aunt, great-aunt. Muslim men are forbidden to marry their sisters, foster sisters, mother’s sister’s, father’s sister’s, step-daughter, sister’s daughter. First cousin marriage is allowed in Muslims and it is not considered as incest in India.

Special Marriage Act, 1954 on Incestual Marriages?

Just as personal laws, close blood relations are within prohibited degree of relationship, Relationship including relationship where people are descended from a common ancestress but by different husbands, illegitimate blood relationship are within the prohibited degree of relationship. Further, a man cannot marry, mother, daughter, son’s or daughter’s daughter, and all those relations where they are closely connected with blood. In the same way women cannot marry such close blood relations under the Special Marriage Act, 1954.

Consanguine Marriages prevail in South India?

In Southern India, there are communities which practice consanguineous marriages. In southern India, these types of marriage prevail due to three reasons that are Caste, Class and Inheritance, according to sociologist R. Indira. There are other reasons also which prevail   consanguineous marriages in southern states as land and diverse language background and it became a social custom around a time in southern states. Experts believe that land and gold have long been seen as symbols of power and wealth in Indian society, so they tried to preserve their traditions, wealth, land, etc in their own family.

In North India, their main focus at time of marriage is on similar caste and social background but in north India from a long time Gotra System is followed. Gotra System means caste group that share a common ancestral lineage or common Gotra generally do not form matrimonial alliance with each other as a social rule. Therefore, a brother cannot marry his own sister, whereas a brother can marry his first cousin in southern India as no Gotra system is followed by the people of southern states, based on the same principles uncle-niece marriages persist in southern India. Among Telugus, there is a distinction between first cousin marriages. Telugus consider two further bifurcations as parallel cousin and cross cousin and allow marriages of cross cousin only. Hence, in southern India, few marriages take place out of incest, but it is not illegal as it is their in customs.

Inheritance Right of Children Born Out of The Incestual Marriages In Hindus?

Incest marriage among Hindus is no marriage at all. A child born out of incest is an illegitimate child. An illegitimate child has no rights in father’s property. Under section 125 Crpc, a father is liable to maintain an illegitimate child. But if the customs allowed these types of marriages then the children born out of the marriage is legitimate and has the right to inherit from the father’s property. When customs allow it, it prevails over the Hindu Marriage Act, 1955. There are no specific provisions provided as to what would be the inheritance right of a child born out of incest.

Inheritance Right of Children Born Out of The Incestual Marriages In Muslims? 

In Muslims, the marriage between first cousins is not considered as incest marriage or void marriage. Keeping this in mind and moving further, what are the rights possessed by a child born out of the incest? A child born out of incest will be considered as an illegitimate child. Under Muslim Personal Law, an illegitimate child has no rights over his father’s property. Under Hanafi Law, the mother and illegitimate child have mutual rights to inherit property. Child gets inheritance rights not only from the mother's property but also from all the property to which the mother is related. Rape and Incest are the severest form of barbarity inflicted on women and girls. A shocking fact and stark reality is that the incest are widely prevalent in society.

CONSEQUENCES OF INCESTUAL MARRIAGES?

The consequences of incest marriages are low life expectancy, high mortality rates, longer-lasting reproductive spans, Thalassemia, Chromosomal Abnormalities and Sickle Cell Anaemia, cancer, infectious pathogens, Alzheimer’s,  etc. These risks intensify rare disease clusters with each new generation of the endogamous group because of their greater number of shared ancestors.  

There are a number of articles, papers and videos made on this topic as it is a highly relevant topic in the current day. Whether the law favours or not is something that would heavily impact the way the country runs and would significantly affect the society. There were a few articles addressing the situation in India as well saying how the laws are not fully adapted to the current circumstances.

The article relies on a secondary analysis of qualitative data, drawing on the range of existing sources including research papers, articles and other pertinent documents related to the topic. These resources form the essential data base for this study. Studying arguments made both for and against the topic is important as it helps to grasp the actual current situation putting aside any biases.

Word ‘Consanguinity’ comes from two latin words ‘Con’ meaning ‘Shared’ and ‘Sanguis’ meaning ‘Blood’. Among the major population studies reported consanguinity is found to be associated with socio-economic levels, education and rural communities. Brothers and Sisters commonly share 50% of their genetic make-up. Uncle and Niece share 25% and First cousin 12.5% of their inherited genetic material. Hence, blood related marriages increase the risk of defective genes being transmitted to the children from the parents. Closer the biological relationship higher is the risk. Consanguinity is also reported to be associated with miscarriages. A significant frequency has been reported between consanguinity and genetic disorders, congenital heart diseases, multiple congenital anomalies, neurological malformations, chromosomal disorders and mental retardation.    

In northern India, Hindus have outlawed consanguineous marriage by avoiding the same ‘Gotra’ or patrilineal relationship between the probable bride and the groom. Whereas, in southern India, there are communities which practice consanguineous marriages. According to the National Family Health Survey report Tamil Nadu addresses-28%, Andhra Pradesh addresses-26%, Puducherry addresses-19%, Karnataka addresses-27%, Telangana addresses-18% of consanguineous marriages. The uncle and niece marriage still exists in these southern states. The ritual named Maman Kalyanam (uncle-niece marriage) remains in practice in Tamil Nadu. The principle involved is that of return-the family that gives a daughter expects one in return, if not now, then in the next generation. The effect of these marriages is to bind people together in relatively tight-knit kin groups. It is not illegal as is their custom. The legality of consanguineous marriages was confirmed in the Hindu Code Bill of 1984. The proposal of ban of consanguineous marriages would be necessary to secure the interest of national security, public safety and economic well-being and for the protection of health and morals. For the purposes of simplicity and transparency, direct ban is preferable to an indirect approach. On account of the health of the future generation, providing a secular world instead of a caste and class biasness world to the future generations is a more important thing in the current scenario than the orthodox mentality of previous generations people.

1. The Hindu Marriage Act, 1955.

2. The Muslim Marriage Act, 1939.

3. The Special Marriage Act, 1954.

4. Tajbi Abalal Desai vs Mowlakhan Alikhan Desai, (1917)19BOS LR300,AIR1917 BOMBAY 211.

5. Atam Prakash vs State of Haryana & Ors, 1986 AIR 859, 1986 SCR (1) 399.

6. Neetu Grover vs Gagan Grover, MAT.APP.(F.C.) 35/2023 & CM APPL. 23982/2015.

7. World Health Organisation, Report of a WHO Advisory group on Hereditary Diseases.

8. Bittles AH, The Global prevalence of consanguinity, 2010.

9. Verma IC, Puri RK, Health Effects of Consanguinity in Pondicherry.