Same-Gotra Marriage Legal

Discussion in 'Politics & Society' started by Singh, Jan 16, 2011.

  1. Singh

    Singh Phat Cat Administrator

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    Same-gotra marriage legal, court had ruled 65 years ago




    NEW DELHI: The sustained effort by aggressive khap panchayats and their influential political backers to force leading political parties to have a rethink on same gotra marriages is patently illegal. Sixty-five years ago, in 1945, the issue was settled by the Bombay High Court which categorically declared same gotra marriages were legal. And that's been the law of the land since.

    In wake of the khap panchayat's defiance of the law, not only have top politicians like Om Prakash Chautala and Naveen Jindal caved in - no doubt to retain the political support of these medieval organisations - but national parties like BJP, too, have been wavering. The BJP on Thursday talked about building a "consensus" on the issue, indicating there was scope for modifying the legal view on same-gotra marriages. Even the Congress is said to be keeping its cards close to the chest.

    So, even as khaps spit fire at courts for holding such marriages legal, it is instructive to learn about the rigour with which two reputed judges went into the issue in 1945, much before Hindu personal law was codified. They consulted the writings of leading experts and delved into the wisdom of the Hindu scriptures to arrive at their verdict.

    The case, 'Madhavrao vs Raghavendrarao', involved a Deshastha Brahmin couple and the two-judge bench comprised Harilal Kania, the first chief justice of independent India, and P B Gajendragadkar, who became CJI in the 1960s.

    The essence of the case was whether 'sagotra' marriage or marriage within the same gotra was valid under Hindu custom.

    The court initially relied on a landmark 1868 case where the Privy Council had stated, "under the Hindu system of law, clear proof of usage will outweigh the written text of the law". However, a custom, which was at variance with the written text of Hindu law, had to be ancient, certain and reasonable if it was to be recognised by the court.

    After going over several court rulings on the evidence to prove a custom, the bench concluded that the marriage in question between a husband and wife belonging to same gotra was valid. This argument could, however, be turned around by the khaps of Haryana to say that it is customary for Jats not to marry within the same gotra.

    But, the court anticipated this sort of an argument and garnered textual proof for intra-gotra marriage. German scholar Max Mueller had defined 'gotras' as descending from eight sages and then branching out to severalfamilies.

    The Court, however, referred to eminent scholar P V Kane, author of the 'History of Dharmashastra', who had said:

    "The mass of material on 'gotra' and 'pravara' in the sutras, the puranas and digests is so vast and full of contradictions that it is almost an impossible task to reduce it to order and coherence."

    On this ground, the court concluded that it was impossible to accept the suggestion that in reference to the Brahmin families of today, their gotras and pravaras represent anything like an unbroken line of descent from the common ancestors indicated by the names of their respective gotras and pravaras. After consulting the texts of Manu and Yajnavalkya, the court observed that the requirements on gotra were recommendatory, rather than mandatory.

    Finally, the court stressed on the need of Hindu society and law to keep up with the times. It said, "Courts have to construe the texts of Hindu law in the light of the explanations given by recognised commentators. But it must always be remembered that since the said commentaries were written, several centuries have passed by and during this long period the Hindu mode of life has not remained still or static. Notions of good social behaviour and the general ideology of the Hindu society have been changing. The custom as to marriages between persons of the same gotra in this case is an eloquent instance in point."

    This is something that the khaps and the Haryana politicians seem to have forgotten.


    http://timesofindia.indiatimes.com/...ad-ruled-65-years-ago/articleshow/5932546.cms
     
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  3. Ray

    Ray The Chairman Defence Professionals Moderator

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    Jolly good.

    However, the khap people would not be delighted.
     
  4. The Messiah

    The Messiah Bow Before Me! Elite Member

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    If it is written then it should be applied.
     
  5. Oracle

    Oracle New Member

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    Isn't that wrong for offsprings? isn't that proven medically?
     
  6. Bangalorean

    Bangalorean Stars and Ambassadors Stars and Ambassadors

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    I don't think so - have not heard any such thing! Gotra is not a blood relationship, how can it be bad for offspring?
     
  7. p2prada

    p2prada Stars and Ambassadors Stars and Ambassadors

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    Ghotra follows the position of sun, moon, stars and what not at time of birth to decide who can marry who?

    It's not a blood relationship.
     
  8. The Messiah

    The Messiah Bow Before Me! Elite Member

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    when man explores space and when he will settle on other planets then religion practices will go down the toilet.

    how to calculate when there will be diwali,holi,eid, which side to pray etc when one is living in another solar system/galaxy.
     
  9. p2prada

    p2prada Stars and Ambassadors Stars and Ambassadors

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    Religion surviving that far in the future is not guaranteed. But festivals may become non religious events where the family can get together.

    Dates can be calculated. But which direction to pray, best of luck. :)
     
  10. pmaitra

    pmaitra Moderator Moderator

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    Same gotra marriages technically possible even without legal protection

    Same gotra marriages technically possible even without legal protection

    According to Vedic rites, a person's gotra can change in two ways:

    For males:
    • If he is adopted by a man of a different gotra.

    For females:
    • If she is adopted by a man of a different gotra.
    • If she marries (obviously into a different gotra, as same gotra marriages are forbidden).

    However, in the event a good match is found where both the prospective bride and groom are from the same gotra, the girl is adopted by a man from a different gotra and thereafter, he performs kanyadaan at the time of marriage.
     
    Last edited: Jan 17, 2011
  11. pmaitra

    pmaitra Moderator Moderator

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    This is what I had known about gotra (see below) and yes it indeed is a blood relationship. Rules vary from community to community and region to region. In some places, they make sure there were no common ancestors in the last x generations.

    Wikipedia defines gotra as:

    Yes, it is scientifically proven that in incestuous relationships, offsprings can be born with physical or mental disabilities, however, if the common ancestor is far back into the past beyond many many generations, the probability of disability tends to zero and hence a marriage can be performed.

    Autism is one disease that has attracted much attention and it is believed that it can be seen in children born out of incestuous unions. However, that may not be the only cause. A child whose both parents are extremely studious, e.g., a child having both parents as Ph.D.s can be autistic, although the parents might not have any blood relationship.

    A very good research was done on this subject: http://www.springerlink.com/content/u7u327068nu823q2/
     
    rcscwc likes this.
  12. hit&run

    hit&run Elite Member Elite Member

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    Thanks Pamiatra for clearing things for the readers. Gotra restrictions are clearly mentioned in Ayurveda (Charak Samita, Aṣṭāṅga Samgraha of Vāgbhaṭa and many other books). Bases of such Practice were having very strong references/recommendations from available ancient sciences. Those practices were drafted on books after long observation, discussions with other sages and forwarded to next generations by Guru-Shishya Paramapra.
     
  13. rcscwc

    rcscwc Tihar Jail Banned

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    That judgement is NOT a blanket cleareance. The woman in this actually belonged to a different gotra BY BIRTH and her gotra was changed on adoption. Hence the marriage was found legal.

    Man and woman had different gotras at birth.

    There are prohibted categories in HMA and SMA. They invalidate the spinda marriages.

    Instead of the newspaper reports which are short on facts and long on bashing, better stydy this:
    http://webcache.googleusercontent.c...riage"+"bombay+hogh+court"&cd=8&hl=en&ct=clnk
     
    Last edited: Jan 17, 2011
  14. rcscwc

    rcscwc Tihar Jail Banned

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    Don't be carried off. HMA nowhere permits spinda marriage UNLESS sanctioned by local customs. See.

    The Hindu Marriage Act, 1955

    HINDU MARRIAGES

    5. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
    (iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
    (v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
    Sec 2. (f)
    (i) "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;
    (g) "degrees of prohibited relationship"-two persons are said to be within the "degrees of prohibited relationship"
    (i) If one is a lineal ascendant of the other; or
    (ii) If one was the wife or husband of a lineal ascendant or descendant of the other ; or
    (iii) If one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or
    (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters ;
    Explanation.-For the purposes of clauses (f) and (g), relationship includes-
    (i) relationship by half or uterine blood as well as by full blood;
    (ii) illegitimate blood relationship as well as legitimate; (iii) relationship by adoption as well as by blood ; and all terms of relationship in those clauses shall be construed accordingly.

    The marriage already a void marriage, if the relationship exist as brother and sister.


    A girl in S. India may marry her maternal uncle, as it is permitted by local customs. Not so in N. India, where it is classified as INCEST.
     
    Last edited: Jan 17, 2011
  15. rcscwc

    rcscwc Tihar Jail Banned

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    Last edited: Jan 17, 2011
  16. rcscwc

    rcscwc Tihar Jail Banned

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    Now the question is: How many HERE know about the customs of N. indians, specially Jats who have a khap system?
     
  17. rcscwc

    rcscwc Tihar Jail Banned

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    Now tjhe Christian Marriage Act

    DEGREE OF PROHIBITED RELATIONSHIP

    Part I

    1.Mother
    2.Father’s widow (step mother)
    3.Mother’s mother
    4.Mother’s father’s widow (step great grandmother)
    5.Mother’s mother’s mother
    6.Mother’s mother’s father’s widow (step great grandmother)
    7.Mother’s father’s mother
    8.Mother’s father’s widow (step great grandmother)
    9.Father’s mother
    10.Father’s father’s widow (step grandmother)
    11.Father’s mother’s mother
    12.Father’s mother’s father’s widow (step grandmother)
    13.Father’s father’s mother
    14.Father’s father’s father’s widow (step great grandmother)
    15.Daughter
    16.Son’s widow
    17.Daughter’s daughter
    18.Daughter’s son’s widow
    19.Son’s daughter
    20.Son’s son’s widow
    21.Daughter’s daughter’s daughter
    22.Daughter’s daughter’s son’s widow
    23.Daughter’s son’s son’s daughter
    24.Daughter’s son’s son’s widow
    25.Son’s daughter’s daughter
    26.Son’s daughter’s son’s widow
    27.Son’s son’s daughter
    28.Son’s son’s son’s widow
    29.Sister
    30.Sister’s daughter
    31.Brother’s daughter
    32.Mother’s sister
    33.Father’s sister
    34.Father’s brother’s daughter
    35.Father’s sister’s daughter
    36.Mother’s sister’s daughter
    37.Mother’s brother’s daughter
    38.Wife’s mother
    39.Wife’s father’s mother
    40.Wife’s mother’s mother


    Explanation: – For the purpose of this part, the expression ‘Widow’ includes a divorced wife.

    Part II

    1.Father
    2.Mother’s husband (step-father)
    3.Father’s father
    4.Father’s mother’s father
    5.Father’s father’s father
    6.Father’s father’s mother’s husband (step-great-grandfather)
    7.Father’s mother’s father
    8.Father’s mother’s husband (step-great-grandfather)
    9. Mother’s father
    10.Mother’s mother’s husband (step-grandfather)
    11.Mother’s father’s father
    12.Mother’s father’s mother’s husband (step-great-grandfather)
    13.Mother’s mother’s father
    14.Mother’s mother’s mother’s husband (step-great-grandfather)
    15.Son
    16.Daughter’s husband
    17.Son’s son
    18.Son’s daughter’s husband


    Kindly compare these prohibited categories with those in HMA or SMA. They too largely tend to exclude spinda relationships!!!
     
  18. Ray

    Ray The Chairman Defence Professionals Moderator

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    What is the opinion of the Khaps about Polyandry?

    How do they treat these cases of Polyandry?
     
  19. rcscwc

    rcscwc Tihar Jail Banned

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    I don't know. Do you?

    If you don't know, polygamy and polyandry are prohibited in HMA.

    Hope I am not too rough on you.

    Btw, I have posted about three different marriage laws prevailing in India. They are nearly congruent about spinda marriges.
     
    Last edited: Jan 17, 2011
  20. S.A.T.A

    S.A.T.A Senior Member Senior Member

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    Based on Kane's observations which is essentially non committal and vague,i wonder how the learned judges conclude that the Dharmasatras were silent on the matter,furthermore the judges contradicted their own earlier observation by noting that Manu Smrti and Yagnavalkya Smrti recommend that Sagotra Vivaha be deemed forbidden.

    If the Dharmic texts are to be consulted,the Dharmasastras(including the most important smrtis of Manu,Yagnavalkyaand Parasara) The Dharmasutras(Like Gautama and Baudhayana and the Grhyasutras(like Asvalyana,Paraskara and Apastampa)all completely forbid marriage between sapinda and Sagotra couples,and in certain cases those of Sapravara.

    If the govt starts digging into the Dharmasatras they will only strengthen the case of the Khap Panchayats in their demand for delegalization sagotra marriage.The Hindu Marriage Act of 1955 is not entirely based on Hindu treatises on Dharma,like Dharmasastras and Grhyasutras,rather its a codices of a compendium of Hindu customs and practices of various Hindu communities that was prevalent in India at the time.Many or all of them may have their origins in the Dharmacharas,which were sourced to the Dharma sastras and sutras.

    If the govt wants to reform the Hindu marriage Act,it just has to go ahead and do it,like the way the act was enacted in the first place,without trying to indulge in the vain pursuit of scriptural sanctity,which does not exist and its unlikely to be found with sufficient certainty.
     
  21. rcscwc

    rcscwc Tihar Jail Banned

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    SATA, first decide what you want. Do you want to oppose each and every stand of the khaps? Or do you swear by the law as it exists, even if it is rooted in ancient laws. Then you will have to oppose the prohibited categories in SMA and CMA too. I have shown that spinda marriages aka sagotra marriages are void/voidable in HMA.
     

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