What is prohibited degree in Hindu Law? Explain with examples.

The prohibition against marrying within certain close relationships is not a modern innovation — it is as old as Hindu law itself. The smritis, the medieval commentaries, and the modern legislature have all, in their respective ways, sought to mark out a circle of near kinship within which marriage is impermissible. In its contemporary form, this prohibition finds expression in section 3(g) of the Hindu Marriage Act, 1955, which defines the concept of "degrees of prohibited relationship," and in section 5(iv) which makes avoidance of these degrees a condition for a valid marriage.

The Foundation of the Prohibition

The ancient Hindu rule of exogamy — the principle that one must marry outside one's own kin-group — was expressed through two overlapping ideas: the prohibition of sapinda relationship and the prohibition of degrees of prohibited relationship. While sapinda relationship is computed arithmetically by counting generations through the mother and the father, the degrees of prohibited relationship under section 3(g) are a specific enumerated list of close personal connections, some arising by blood, others by marriage. As the legislative notes themselves acknowledge, the rules relating to degrees of prohibited relationship are based on the principle of exogamy, and in some cases, the two prohibitions overlap, though they are conceptually and legally distinct.

The Statutory Definition: Section 3(g)

Section 3(g) of the Hindu Marriage Act lays down that two persons are said to be within the degrees of prohibited relationship in the following circumstances:

• (i) if one is a lineal ascendant of the other — meaning any person in a straight ascending or descending line, regardless of how remote: a man and his daughter, a man and his granddaughter, a woman and her grandfather, are all within this prohibition;

• (ii) if one was the wife or husband of a lineal ascendant or descendant of the other — so a man cannot marry his father's wife (stepmother), his grandfather's wife, his son's widow, or his grandson's widow;

• (iii) if one was the wife of a brother, or of the father's brother, or of the mother's brother, or of the grandfather's brother, or of the grandmother's brother of the other — these are relationships of affinity, meaning relationships arising through the marriage of a close relative;

• (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of a brother and sister, or of two brothers, or of two sisters.

Explaining Sub-clause (iv) with Examples

Sub-clause (iv) is the one most commonly encountered in practice, and it deserves a careful reading. It covers six types of relationships:

• Brother and sister — a man cannot marry his own sister, whether by the same father and mother, or by half-blood or uterine blood.

• Uncle and niece — a man cannot marry his brother's daughter or his sister's daughter.

• Aunt and nephew — a woman cannot marry her brother's son or her sister's son.

• Children of a brother and sister — first cousins, where one's parent and the other's parent are brother and sister to each other, are within the prohibited degrees. So Ramesh's daughter Priya cannot marry Ramesh's sister Sita's son Vijay.

• Children of two brothers — two cousins whose respective fathers are brothers. For example, Arjun's son and Rajan's son (Arjun and Rajan being brothers) cannot marry each other.

• Children of two sisters — two cousins whose respective mothers are sisters are also within the bar.

It will be immediately noticed that by sub-clause (iv), the marriage of first cousins — which is extremely common in North India and remains controversial across communities — is expressly prohibited, except where custom permits it. In South India, on the other hand, marriages between cross-cousins (children of brother and sister) and between a maternal uncle and his niece have been recognised and practised for centuries and are saved by the customary exception.

The Scope of "Relationship" Under the Explanation

The Explanation to section 3 is of great practical importance. It makes clear that relationship for the purpose of both sapinda relationship and degrees of prohibited relationship includes:Relationship by full blood, half blood, and uterine blood — so a man cannot marry his half-sister (same father, different mother) or his uterine sister (same mother, different father), just as he cannot marry his full sister;

• Illegitimate blood relationship as well as legitimate — so the bar applies to children born outside marriage as well;

• Relationship by adoption — a child adopted into a family stands in the same position as a natural child and cannot marry anyone within the prohibited degrees in the adoptive family.

It is equally important to note what the Explanation does not include: relationship by marriage alone is not by itself an impediment. A man may validly marry his deceased or divorced wife's sister, or the daughter of that sister, because the connection there is purely by affinity — arising from a marriage that has ended — not by blood or adoption. The Madras High Court confirmed this position in Ragavendra v. Jayaram (1897 20 Mad 283) and in Ramakrishna v. Subbamma (AIR 1920 Mad 715).

Consequence of Breach

Section 5(iv) of the Hindu Marriage Act states that a valid Hindu marriage requires that the parties must not be within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of such a marriage. A marriage contracted in violation of this condition is void under section 11 of the Act — it has no legal existence from its very inception, and either party may obtain a decree of nullity. The party guilty of entering such a marriage is also liable for punishment under section 18(b), which prescribes simple imprisonment extending to one month, or a fine up to one thousand rupees, or both.

The Saving Role of Custom

The proviso in section 5(iv) preserves the validity of a marriage within the degrees of prohibited relationship where a custom or usage governing both parties permits it. But this is not an open door. Section 3(a) of the Act defines "custom" as a rule which must have been continuously and uniformly observed for a long time, must be certain, and must not be unreasonable or opposed to public policy. More decisively, the courts have consistently held that no custom that is "abhorrent to decency and morality or inconsistent with the practices of good men" can be recognised. In Balusami v. Balakrishna (AIR 1957 Mad 97), the Madras High Court affirmed that a custom must satisfy these conditions before it can override a statutory prohibition. The mere fact that two or three couples in a family or community have contracted such marriages is wholly insufficient to establish a valid custom, as was made clear in Arun Laxmanrao v. Meena Arun.

Distinguishing Prohibited Degrees from Sapinda Relationship

A student must keep clearly in mind that the two prohibitions in sections 5(iv) and 5(v) are distinct, even though they overlap in particular cases. Degrees of prohibited relationship under section 3(g) are a named and enumerated list — the legislature has specifically identified each connection that is barred. Sapinda relationship under section 3(f), on the other hand, operates on a generational formula, reaching any person with whom the propositus shares a common ancestor within the prescribed limits of ascent. A man and his mother's brother's daughter (maternal first cousin) are both within the degrees of prohibited relationship under clause (iv) — being children of brother and sister — and are sapindas of each other, since they share a common maternal ancestor within the third generation. Both prohibitions thus operate simultaneously, and neither can be individually waived except by a valid and established custom.

A Practical Illustration

Consider the following to make the operation of section 3(g) concrete:

Permitted: A man marrying his deceased brother's daughter-in-law (his brother's son's widow) — she is not within any of the categories listed in section 3(g), and there is no sapinda connection either.

Prohibited (sub-clause ii): A man marrying his father's widow (his stepmother) — she was the wife of his lineal ascendant. This is void under section 11.

Prohibited (sub-clause iii): A man marrying his mother's brother's widow (his maternal uncle's widow) — she falls squarely within clause (iii) as the wife of a mother's brother, and this remains a prohibited degree even if the uncle has divorced her or she has since remarried.

Prohibited (sub-clause iv): A man marrying his sister's daughter — uncle-niece relationship, expressly barred. Unless the man belongs to a community such as certain Telugu or Tamil communities where such marriages are a recognised and long-established custom, the marriage would be void.

The law thus draws a careful circle around the most intimate family bonds, recognising that the purposes of marriage — the formation of a new family unit, the integration of two distinct kinship groups — are best served by marrying outward rather than inward into the same familial circle.