Report No. 15
23. Prohibited degrees.-
One of the conditions of a valid marriage under the proposed law is that the parties should not be "within prohibited relationship unless the custom governing each of them permits of a marriage between the two." We have set outs1 (i) the relations who cannot be married by a man and (ii) the relations who cannot be married by a woman. In framing this list, we have examined the lists appended to the (English) Marriage Act, 1949, and the Special Marriage Act, 1954, and the provisions of the Hindu Marriage Act, 1955, and we have further taken into account the sentiments of the Christian community of this country in the matter.
There is one aspect of this question which may be elucidated. In the list as originally framed by us and included in the draft which was circulated for opinion, we had included in Part I, "sister's daughter, brother's daughter, mother's sister and father's sister", and in Part II "brother's son, sister's son, mother's brother and father's brother". Objection is taken by the Roman Catholic Church witnesses to the inclusion of the above relations in the prohibited lists, because, it is said, though marriages with those relations are not viewed with favour, and are prohibited, the prohibition is not absolute and is capable of being removed by a Papal dispensation.
It was therefore urged that these relations should be taken out of the lists, or, in the alternative, provision should be made for the grant of dispensation by the appropriate authorities of the Catholic Church. We consider that it would be inappropriate in a piece of legislation like this to enact any provision for dispensation by any authority, and much less by an outside authority. But the question still remains, whether these relations should be placed in the list of prohibited relations. Can it be said that marriage with these relations is so repugnant to the prevailing notions as to call for prohibition?
In some communities in India, marriages with some of these relations, as for example, sister's daughter, and mother's brother are not unusual, and they are valid. The fact that the Pope can issue dispensation with respect to these marriages shows that they cannot be very obnoxious to Christian sentiment, though they may not be favoured. We have, therefore, omitted these relations altogether fr6m the lists.
1. See Appendix 1, Schedule I.
24. Another point which was raised with reference to prohibited degrees, may be mentioned. In requiring as a condition of marriage that the parties should not be within prohibited relationship, we have made an exception where the custom governing each of the parties permits of such a marriage. Two points have been raised in connection with this provision. One is that the exception in favour of custom should be omitted in the interests of harmony and purity of the home. But in this country customs as to marriage have varied from region to region, and they have recognised as valid marriages which are not in accordance with strict rules of law. Now to enact a law which will render them void would be to throw the society into great confusion. We are therefore unable to accept this suggestion, though we appreciate the sense behind it.
25. A suggestion different in its tenor is that when the custom of one of the parties permitted the marriage, it should be declared to be valid, even if the custom of the other party did not sanction it. We are unable to accept this suggestion, as marriage is a bilateral affair, and it is only a custom which binds both the parties that could be recognised.