Chhattisgarh High Court declares marriage between sisters children ‘null and void’ despite claims of Hindu ‘Brahma’ customs

In the Patel Samaj, marriage between the daughter and the son of a sister-sister, brother-sister and maternal uncle-paternal aunt was prevalent, and it was called Brahma marriage, the family court had held.

“The defendant has only pleaded that in Patel Samaj (Community), marriage between daughter and son of sister-sister, brother-sister and maternal uncle-paternal aunt is prevalent and it is called as Brahma marriage… whereas it is required to be pleaded and established that such a custom permitting marriage between the parties of degrees of prohibited relationship is prevalent in their society and they are continuously and uniformly observing the said custom for a fairly long time and that it has obtained the force of law, ” the  May 1 order noted.

The pleading relating to custom in terms of Section 3(a) of the Hindu Marriage Act of 1955 is absolutely missing, a bench of justices Sanjay K Agrawal and Sanjay Kumar Jaiswal said on May 1.

Prohibited marriage

• The marriage of the appellant (Husband) was solemnised with the respondent (wife) on April 20, 2018, in accordance with the Hindu rites and customs. 
• The man’s mother, Amrika Bai and the woman’s mother, Parvati Patel, both were real sisters. 
• The wife, after March, 2020, left her matrimonial home and started living with her father, pursuant to which on January 14, 2022, a customary divorce was granted to them in a societal meeting, and cash of Rs 75,000 along with gold and silver ornaments were given to her. 
• The husband filed a case contending that his mother was a real sister to his wife’s mother and that under the Hindu Marriage Act, 1955 was prohibited.
• On January 3, 2024, the family court concluded that there was a custom prevalent in the Patel society in which marriage between the parties who are within the degrees of prohibited relationship was permissible and rejected the husband’s appeal.

Ptale Samaj has obtained no force of law

• After reviewing the submissions, the court found that the wife had only stated that in the Patel Samaj, such marriages, between daughter and son of sister-sister, brother-sister and maternal uncle-paternal aunt were prevalent, and they were called Brahma marriage.
• The wife did not claim that such marriages have been followed continuously and uniformly for a long period of time, the court said.
• The court observed that the wife had failed to establish that this custom had any force of law, which was a legal requirement.
• The essential details required under section of the Hindu Marriage Act, 1955, were missing in the wife’s written statement, the court noted.
• The family court was absolutely unjustified in rejecting the application seeking a declaration of marriage between the parties as null and void after noting that their marriage came within the degree of prohibited relationship under Section 5(iv) of the Act of 1955, the Chattisgarh High Court said.
• The court opined the decree, holding that such a custom or usage governing each of them permitting such a marriage between the two in their society comes within the degree of prohibited relationship, was neither pleaded nor established. 
• Consequently, the legality of the marriage part of the decree was set aside, and the issue of permanent alimony was kept open to be raised by the wife.

Submissions

Advocate Sushobhit Singh, on behalf of the appellant, submitted that the family court, after having held that the couple’s marriage came within the degree of prohibited relationship, should have declared the marriage null and void, as there was no custom governing each of them that permitted such a marriage.

He argued that the claim of a custom, confirmed on the statement of one witness, was not enough to legally prove such a custom and, therefore, he requested the court to set aside the family court’s decision, and declare the marriage null and void, allowing the appeal with costs.

Advocate Pawan Kumar Kashyap, appearing on behalf of the respondent, opposed the appeal and submitted that the family court had decided after considering the evidence of witness Kundelal Patel, who happens to be the former President of Patel Vikas Samiti.

It was argued that in such an aforementioned custom, as proved by Kundal Patel, permitting such a marriage between the children of cousin sisters was permissible; therefore, the appeal deserved to be dismissed.