Hello.
Section 3 (f) (i) of the Hindu Marriage Act, states "sapinda relationship" with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation; (ii) 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 provisions of Section 5(v) read with Section 3(f) of the Hindu Marriage Act (v) shows that their marriage would be void unless there is a custom in their community to the contrary. It is elementary that the onus of proving such a custom would necessarily lie on the party propounding it.
What is the burden of proof and how the burden of proof of a given fact is to be discharged under Sections 101, 102 and 103 of the Indian Evidence Act is thus: Section 101 - Burden of proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 - On whom burden of proof lies - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 - Burden of proof as to particular fact - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. In Arun Laxmanrao Navalkar vs Meena Arun Navalkar, AIR 2006 Bom 342, the Bombay High Court considered the position of marriage between persons in sapinda relationship and stated that “Section 5(v) of the Hindu Marriage Act has indeed not only laid down merely that the marriage of the parties in sapinda relationship is void. It lays down that it would only be void unless there was a custom to the contrary.” Thus, if you are prove that there is no custom in your family which allows for sapinda relationship, then you can apply for nullity of the marriage under Section 11 of the Hindu Marriage Act on the ground of their relationship being sapinda relationship.
With regards to the question which now arises of whether the wife whose marriage is void under section 11 of the Act can claim maintenance from her husband of that void marriage, the Supreme Court has held that where a marriage is void, wife cannot claim maintenance under Sec 125 CrPC. (AIR 1988 Supreme Court 644). However it is a generally accepted rule that even in such cases, the wife is entitled to maintenance under sec. 18 of the Hindu Adoptions and Maintenance Act [(1985) 2 Hindu LR 425 : (1985) 2 DMC 251 (MP)] and also under section 24 of the Hindu Marriage Act 1955 [(1990) 2 Div Mat Cas 594 : (1991) 1 Hindu LR 56 (MP)]. Also, the wife can claim maintenance under the Domestic Violence Act. However, she cannot claim additional maintenance under the DV Act. The Delhi High Court in this regard held that the Protection of Women from Domestic Violence Act, 2005 does not give a woman any additional right to claim maintenance from husband. 'If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court, she does not have a right to claim additional maintenance under the act.’
Hope the information helps.
-Regards
Adv. Pooja
www.lawkonect.com
