Cousin marriage

1. It is possible under Special Marriage Act, 1954.

Reasoning that I place on Board:

Let us interpret first the "The Prohibited Degrees in Marriage" as per the older Act,1872

A. Special Marriage Act 1872

The concept of “prohibited degrees in marriage” is recognized by all systems of family law and generally every family law has its own list of relatives with whom one cannot marry. The Special Marriage Act 1872 did not contain any such list and only laid down that;

 

“The parties must not be related to each other in any degree of

consanguinity or affinity which would, according to any law to

which either of them is subject, render a marriage between them

illegal.”

Thus, in respect to prohibited degrees in marriage in an intended civil marriage to be regulated by the Special Marriage Act 1872 personal laws of the parties, common or different, remained in force is my opinion on older Act.

The question then comes what about the new Amendment and the new Act, 1954 applicability of it in modern times?

B. Special Marriage Act 1954

The new Special Marriage Act 1954 wholly changes the situation in respect of  prohibited degrees in marriage. One of the conditions for an intended civil marriage to be solemnized under this Act is that “the parties are not within the degrees of prohibited relationship” [S. 4 (d)]. The expression “degrees of prohibited relationship” is defined in S. 2 (b) of the Act as


“a man and any of the persons mentioned in Part I of the
First Schedule and a woman and any of the persons
mentioned in Part II of the said Schedule.”

Thus, unlike the first Special Marriage Act 1872 this Act incorporates its own list of prohibited degrees in marriage, that also categorically separate for men and women (which I found quite interesting and clarified accordingly!).

In each of the two lists of prohibited degrees there are 37 entries. The relations mentioned in the first 33 entries in each list are regarded as prohibited degrees in marriage under all other laws, both codified (HMA is codified) and un-codified (Muslim / Christian Personal Law are not codified). These entries, therefore, do not inhibit any person of whatever religion from opting for a civil marriage. The last four entries in the two lists mentioned below, however, pose a problem for certain communities:

(a) List I (for men)

34. Father’s brother’s son

35. Father’s sister’s son

36. Mother’s sister’s son

37. Mother’s brother’s son

(b) List II (for women)

34. Father’s brother’s daughter

35. Father’s sister’s daughter

36. Mother’s sister’s daughter

37. Mother’s brother’s daughter

Thus all first cousins – paternal and maternal, parallel and cross – are placed by the Special Marriage Act in the category of prohibited marital relationship. While The Special Marriage Act 1954 makes a provision for relaxation of the rule of prohibited degrees in marriage. To the condition that parties to an intended civil marriage must not be within prohibited degrees of marriage the Act adds the following proviso:

“Provided that where a custom governing at least one of the parties

permits a marriage between them, such marriage may be solemnized

notwithstanding that they are within the degrees of prohibited

relationship.” [clause (d) of S. 4]

Now, let us see the interpretation of word “custom” as used in this Proviso is defined by the Act in the following terms:

“In this section ‘custom’ in relation to a person belonging to any tribe

community, group or family, means any rule which the State

Government may, by notification in the Official Gazette, specify in

this behalf as applicable to members of that tribe, community, group

or family.” [Explanation to S. 4].

The position of first cousins under the Special Marriage Act 1954 is in accord with the Hindu Marriage Act 1955 which also does not allow marriage with any first cousin.


**Thus what I feel is that relaxation of the net of prohibited degrees on the ground of custom is also permissible under that Act, but it does not require a Gazette notification by the State Government in this regard.

Let us now see and interpret same position in Muslim Personal Law and to the best of my understanding;

In Muslim law all first cousins both on the paternal and maternal sides are outside the ambit of prohibited degrees in marriage. Personal law of the Jewish and Bahai communities also permit marriage with a cousin. Under Christian law marriage with a cousin may be permitted by a special dispensation by the Church.

Now, what emerges here as preliminary discussion is that it is doubtful if the expression “custom” as defined in the Special Marriage Act would include also personal law of the parties. And even if it does, the condition of recognition by the State Government through a Gazette notification would have to be satisfied.

Side by side while we are discussing on "cousin" marriage then another important point worth noting here is that under the Hindu Marriage Act 1955 marriage with second cousins (father’s first cousin’s children) is also not allowed due to the restriction known as “sapinda” relationship [S. 5(v)]. But, The Special Marriage Act 1954, however, does not place any second cousin in its two lists of prohibited degrees in marriage.

The consequence of these legal provisions is that if a Hindu, Sikh, Buddhist or Jain wants to marry a second cousin he can do so under the Special Marriage Act, though his personal law (now contained in the Hindu Marriage Act 1955) does not permit it.

Another corallites emerging from these discussions on the contrary is that; if a Muslim wants to marry a first cousin he cannot do so under the Special Marriage Act 1954 although the Muslim personal law unconditionally permits such a marriage ! Members of all those other communities whose law allows, or may allow, marriage with a first cousin are also in the same position as the Muslims. The discrimination between various Indian communities inherent in this legal situation is too clear to be ignored.

** However, I volunteer to stand being corrected by other members by way of further discussion on legal point of Law (here Special Marriage Act vis-a-vis Christian Marriage Act is the debate on Board) since Authors que. revolves around Christain cousins hence welcome all legal points to end it with correct legal stand as per Rules to help this member!

First Schedule to the Special Marriages Act, 1954 very clearly spells out what are the degree of prohibited marriages:

Part-I

Item 36. Mother's sister's-daughter

PART II
Item 36. Mother's sister's son

Thus marriage with  Mother's sister's daughter falls within the degree of prohibited marriages - from both sides.

Hello, 

Thank you for the prompt reply.It was helpful. I have some more questions to ask.

I] If we do not want to approach the church, can the marriage be conducted in the court by the Christian Marriage Act. What are the procedures? 

II] If parents agree then, will the court or church have any problems?

Dear Fraser,

I would advise you to take a copy of bare act of Indian Christian Marriages Act, 1872 and read.

Section, 42 - under which you have to give a oath that there is no prohibited kinderhood in the marriage.

Section 66 talks about punishment in case of false oath.

Section 81 or 82 talks about how such a marriage is void.

Go through it, you will understand.

Dear MR. R RAMACHANDRAN

thanks for ur advices..but arent your thoughts are contradictory of Special marriage act 1954.

I dont know much about the laws. All i (& i think u also) know that these marriages happens in almost every region and communities despite some obligations.. I found it very rude from a professional to deny anything without seeing all prospect of constitutional law. As a person who dosent studied law all i gathered that  Christian 1st cousins can marry if atleast one of the party or church(both defined as customs) agrees.I dont know im perfectly correct or not but thats all i get so far..Thanks

Dear Mr. Fraser,

The relevant provisions of the Special Marriage Act, 1954 are as under:

Provisions in the Special Marriage Act, 1954

2. Definitions- In this Act, unless the context otherwise, requires,-
(a) (* * * *) Omitted 
(b) "degrees of prohibited relationship" - a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedules are within the degrees of prohibited relationship.

Explanation I.- Relationship includes,-
a) relationship by half or uterine blood as well as by full blood:
b) illegitimate blood relationship as well as legitimate;
c) relationship by adoption as well as by blood;

and all terms of relationship in this Act shall be construed accordingly.
Explanation II.- "Full blood" and "half blood"- two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives.

Explanation III.- "Uterine blood"- two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.

Explanation IV.-In Explns. II and III. "ancestor" includes the father and "ancestress" the mother;

Solemnization of Special Marriages
4. Conditions relating to solemnization of special marriage.-
Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled namely:

(a) Neither party has a spouse living:
(b) neither party-
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind, or
(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity or epilepsy;
(c) the male has completed the age of twenty-one years and the female the age of eighteen years;
(d) the parties are not within the degrees of prohibited relationship:

Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship:

This very clearly talks about prohibited degree of marriage; and it will be permitted only if the custom permits.

I take it that since both of you belong to the same religion, if only your custom had permitted this, it would mean that the custom of both of you is permitting this.  Had that been the case, you would not have posed this question at all.in the Forum and would have proceeded with the planned marriage with your first cousin.  Just because any of the relatives (parents in this case) agree to such a proposal would not make it a "Custom" in the community.

When you have approached the forum, I took interest and tried to answer you after seeing all the marriage provisions, the special marriage act, the christian marriage Act etc. 

I think you expected only an "YES" to your query and you did not expect any correct legal provision to be told to you.  Otherwise, what is the meaning of your expression:  "I found it very rude from a professional to deny anything without seeing all prospect of constitutional law."  Which part of my earlier replies you found to be  rude?  Let me know.

IF YOUR CUSTOM PERMITS, PLEASE GO AHEAD AND HAVE THE PROPOSED MARRIAGE.  ALL THE BESTS. 

Dear,

I am not a legal person but I would like to share my experience regarding cousin marriage. As you mentioned  that u want to marry your sister's daughter, there are certain issues related to this. I got married with my maternal uncle's son which falls under customary law and it is legal. Though both of them are related i stay in north India. Please don't mistaken me for giving certain facts of life. I faced  lot of problems that is why i would like to share with u. Every one gets married only have a better life and would promise to live together till the last moment. But at times this does not take place. I had a love marriage and when i got married i thought everything is perfect and i am going to lead a happy life. But unfortunately this did not take place. I found my husband's character to a total change. See again, i am telling u, this need not be the condition of everyone 's marriage. This is only to alert u. that is all. please don't take it otherwise. i had two children out of this marraige and was left alone to struggle with them. Because of his crulty i had to apply for a divorce. But the problem surfaced at the end of the divorce. The judge said this is not a marriage? In north India these kind of marriages are not acceptable and they consider how can one marry a a brother or sister. But in south India this kind of marriages are permissable. But even in south India marrying a sister's daughter is not permissable. They will not consider this to be marriage. So please do consider other factors before getting married. As a good and well wisher i gave this information to u. Wish u all the best for your future.

There is no society and no one matters , when you know u cant live without it. be happy , u have one lyf . 

you can marry as per Christian marriage act...

Dear Mr. Samar,

I shall be happy if you could kindly enlighten us with the legal reasoning for your view. 

Sir I am in love with girl.but I need help that she is in relation with me .

Dear sir/maim,

                              Can anybody tell me can i marry a girl in following relation.

My great granf father had two wife and she is from the tree of another wife.

GreatGrandfather---wife1---- My Grandfather ---- My Father --- Myself(son).

GreatGrandfather --- wife2---- Her Grandfather ---- Her Father ---- Herself (Daughter)

We belong to hindu religion. Is there any way we can marry each other?

Pls do reply as soon as possible, i would be thankful.