My maternal grandmother (naani) and maternal grandmother of my husband (naani) are real sisters. I am separated from husband since 5 months, and during these years I came to know about this relationship. I want to file divorce under cruelty or if my husband and me are spindas, then I can file nulitiy of marriage. Section 3 of hindu marriage act prescribes: (f) (i) “Sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of assent through the mother, and the fifth (inclusive) in the line of assent through the father, the line being traced upward 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; Please clarify: Me and my husband's grandmothers (naani) are real sisters. And we have common ancestor (mother of grandmother). But hindu marriage act prescribes third generation (inclusive) in line of ascent through mother. Am I spinda to my my husband. Please clarify, Can I file nullification of marriage on basis of spindas relationship.
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
Great grand mother is the lineal ascendant of both your husband and you
2) your grand mother and husband grandmother were real sisters
3’you are second cousins and fall within prohibited degree of relationship from mother side
4) you can file petition for declaration that marriage is nullify
Dear Querist
yes, both of you are in the Spindas Relationship and based on this relationship you may file an annulment petition under section 11 of Hindu Marriage Act-1955 before the Family Court as the violation of clause V of Section 5.
Feel Free to Call
I have one doubt. As per hindu marriage act, spinda relationship is upto 3rd generation through mother side. In my case I and husbad are first generation, our common ancestor (mother of grandmothers) is fourth generation. And fourth generation is out of spinda relationship on mothers side as per HMA. plz clarify
yes you are right
if you are spinda than you should also inclusive in third generation but in the present senerio you are 4th generation.
You are correct
fourth generation is out of sapinda relationship on mother side
You marriage falls under prohibited decree therefore annulment on said ground can be filed before the court seeking anullment of the marriage.
No I don't think you and your husband are sapindas.
Two persons are said to be "sapindas" of each other if one is a linear ascendant (i.e. is a blood relative in the direct line of descent - the children, grandchildren, great-grandchildren, etc. of a person) 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.
For example, if the bride is the offspring of any person within five generations (inclusive) on the groom's father's side and three generations (inclusive) on the groom's mother's side, or vice versa, they will be referred to as "sapindas" of each other.
Dear Sir,
Yes, you can file a petition for null and void of your marriage due to sapinda relationship; 2) proof of sapinda relationship through relatives or any other witnesses; 3) Once there existed no marriage, question of maintenance does not arise but the child is entitled for maintenance u/s 24 of the Act.
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.’
You relationship is quite clear.
Great grand mother ---- second cousins - great-grandparent
I
grand mother ( mausi) - grand mother ( mausi 2)
I
your mother (cousins) his mother
I
Daughter - son - a person can not marry up to his second cousin from the mother's side. I don`t feel you comes under sapinda relationship.
you being the second cousin falls within the prohibited degree of relationship and can apply for annulment of marriage,
Yes. You can file for annulment of marriage in your case, as it is a prohibited relationship under the provisions of Hindu Marriage Act.
Dear client
As you have described your relationship you are not sapinda to each other according to the law.
So in my opinion you should go for divorce instead of nullity of marriage.
Your maternal grandmother and your husband's maternal grandmother are real sisters, then your mother and his mother become cousin sisters, thus your relationship with him shall be a brother and sister relationship.
Sapinda Marriage refers to the cousin marriages. The Hindu Marriage Act of 1955 does not allow Sapinda marriage. A marriage between a boy and a girl is not legally valid if they are “sapindas”. ... Sapinda relationship extends to: within five (5) generations in the line of ascent on the fathers side.
Sapinda Marriage refers to the cousin marriages. The Hindu Marriage Act of 1955 does not allow Sapinda marriage. A marriage between a boy and a girl is not legally valid if they are “sapindas”. But it permits the Sapinda marriages where such marriage is customary.
Among the Hindus marriage within the “pinda” group, that is, sapinda group, is prohibited. In simple words, pinda means common parentage.
According to Gauthama and Brihaspathi, offspring from five maternal generations and seven paternal generations are “sapinda” and they cannot intermarry.
Therefore if you want to file a petition for annulment of marriage based on the said relationship you may prove the same by documentary evidence and proceed.
It may be noted that though the prevailing Hindu marriage laws prohibits Sapinda marriage, the marriage between a boy and girl belonging to same “gotra” is not prohibited by law
Among the Hindus marriage within the “pinda” group, that is, sapinda group, is prohibited. In simple words, pinda means common parentage.
two persons are said to "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
Hello Respected Lawyers All of you have given contradictory advice to each other. Some says it is prohibitied relationship, some says not. some says its spindas, some says it is not. as per HM if I am first generation, then our commong great grandmother is 4th, that means we are not spindas. and as per prohibitied relationships in HMA, this relationship is not mentioned. please suggest me, do i go for annulment of marriage or not
You are not sapindas of each other
file for divorce on grounds of mental cruelty
Even if your petition rejected, no repercussion. Later can file for divorce. Go ahead.
If yimou don't want to continue in the said marriage you can take this ground and try your luck for annulment as per me you are not sapindas and not in prohibited degree of marriage
This in my opinion may not fall under sapinda relationship.
However if you can prove that you may file annulment petition.