Family Law

Arun Laxmanrao Navalkar v. Meena Arun Navalkar

AIR 2006 Bom 342

Facts

Arun and Meena married in 1981 but separated within a few months.
The husband later sought a declaration that the marriage was null and void.
He argued that the parties were sapindas because they descended from a common ancestor, Moroba, within the prohibited statutory generations.
The wife disputed the sapinda relationship and alternatively argued that their community followed a custom permitting marriages between persons so related.
She relied on approximately nine marriages within the community as examples of the alleged custom.
The proceedings also contained allegations concerning cruelty and mental illness, but the principal validity question was whether the marriage contravened Section 5(v) HMA.

Section 3(f) defines sapinda relationship:
up to the third generation through the mother; and
up to the fifth generation through the father.
Two persons are sapindas where they share a common lineal ancestor within the prescribed limits.
Under Section 5(v), sapindas cannot marry unless a custom governing both permits the marriage.
A marriage contravening Section 5(v) is void under Section 11.
The person relying on an exception based on custom bears the burden of proving it.
A valid custom must be ancient or long-standing, certain, continuous, uniformly observed and accepted by the community.

The Court traced the parties’ genealogy and found that both descended from Moroba within the statutory limit.
The wife argued that the presence of a female relative in the line of descent interrupted the relationship.
The Court rejected this because Section 3(f) does not recognise such interruption.
What mattered was the existence of a common lineal ancestor within the prescribed generations.
The parties were therefore sapindas.
The burden then shifted to the wife to prove a custom permitting such marriages.
The Court clarified that the husband was not required to prove the negative proposition that no such custom existed.
A party asserting a special custom must establish it through convincing affirmative evidence.
The wife produced nine examples, but most did not involve the same or an equivalent sapinda relationship.
Only one or two examples were substantially comparable.
A few isolated marriages could not establish a binding community custom.
The evidence did not demonstrate:
regular observance over a long period;
continuity before and after the parties’ marriage;
general community acceptance; or
certainty regarding the relationships permitted.
Since the statutory prohibition was proved and the customary exception was not, the marriage violated Section 5(v).

The Bombay High Court held that the parties were sapindas.
The wife failed to prove a valid and continuous custom permitting such marriages.
The marriage was therefore void under Section 11 read with Section 5(v) HMA.
Use this case for: the person relying on a custom permitting sapinda marriage bears the burden of proving a certain, continuous and accepted custom.