Report No. 22
13. Clause 4(ii)-Conditions of marriage-prohibited relationship.-
The main attack against clause 4(ii)-prohibited relationship-is with reference to the exception in favour of custom. It is said that it should not be recognised. But custom is a well-recognised source of law according to the jurisprudence of this country as well as other countries. It has played an important part in shaping the society of this country; an exception has also been made in its favour in section 5(iv) of the Hindu Marriage Act, 1955. Now to prohibit custom would produce mischief and confusion in the law relating to family relations. We are therefore unable to agree that the custom should be excluded.
It has been suggested that the custom must be one recognised by the Church. But custom is, according to its true concept, some rule in derogation of the general law, in vogue in a particular religion or a community. There can be no such thing as the customs of a Church. It can only mean, "rules of the Church".
One other suggestion with reference to this clause is, that the custom should be recognised if it is permitted by the Church to which either of the parties belong. This is to forget that marriages are bilateral1, and cannot be accepted.
1. Cf. 15th Report, para. 25.