Prohibition on account of relationship by blood or affinity

Most ancient systems of law deal, in elaborate details, with the prohibitions on marriage on account of the relationship of blood or affinity. All systems prohibit marriage among near relations. Differences exist as to the details of these prohibitions.

HINDU LAW:

Under the modern Hindu Law, “any two Hindus can marry”. Marriage between the persons who are Hindus, Sikhs, Jains, and Buddhists is also valid.

In the modern Hindu Law, prohibitions of marriage on account of relationship are recognized on two counts: a) Sapinda Relationship and b) Degrees of prohibited relationship.

Muslim Law :

Inter–sect, and Interreligious marriages :

Under Muslim Law, there is no prohibition as to intersect or inter-school marriage, but inter-religious marriages are restricted.

A Sunni male is allowed to marry a non- Muslim Kitabia ( whose faith is based on some holy book containing revelations such as Christians and Jews but not Sikhs) but not a fire worshipper, or idol-worshippers ( such as Parsis or Hindus).

Under the Shia Law, the marriage of a Muslim male or female with a non-Muslim is Null and Void.

A Muslim male or female can perform a valid marriage with a non-Muslim under the Special Marriage Act, 1954 in civil marriage form.

Muslim Law lays down some impediments of marriage based on relationships by consanguinity, affinity, fosterage.

Consanguinity( the fact of being descended from the same ancestor )  :

Consanguinity means blood relationship and bars a Muslim male  from marrying:

  • A)His mother or grandmother how high so ever,
  • B)His daughter or grand-daughter how low so ever,
  • C)His sister whether full, consanguine, or uterine,
  • D)His niece or great-niece how low so ever,
  1. E) His aunt (father’s sister, mother’s sister) or great aunt, how high so ever, whether paternal or maternal A marriage with a woman prohibited because of consanguinity is void. Issues from such marriage are illegitimate.

The expression “ how high soever” and “ low soever” means ascendants of any degree and descendants of any degree respectively. This prohibition is identical in all schools of the Sunnis and Shias.

Affinity : ( a natural liking)

Prohibition of affinity is based on the relationship arising out of marriage. The peculiarity of the doctrine is that prohibition of affinity arises once a marriage has taken place irrespective of the fact whether marriage is void or valid. The prohibitions of affinity arise irrespective of the fact whether a marriage has been consummated or not. Based on this prohibition,  a Muslim Male can not marry :

  • A)His wife’s mother or grand-mother how high soever,
  1. B) His father’s wife or father’s father’s wife, how high soever or grand-daughter, how low soever,
  • C)His wife’s daughter or grand-daughter how low soever( this prohibition arises only if the marriage has been consummated with the wife.) and
  • D)Wife of his father or paternal grand-father how high soever
  • E)Wife of his son or son’s son or daughter’s son how howsoever.
  • A marriage with a woman is prohibited because affinity is void.

Foster relationship :

A Foster relationship arises because a child has been suckled during the normal period of suckling by a woman other than its natural mother. On this basis, prohibitions from marrying arise between the child and foster mother and between the child and foster-mother’s relations.

The Shias take the view that in such a case all prohibited relationships arise as they arise based on Consanguinity or affinity.

The Hanafis do not go that far. Under the Hanafi law, a male child cannot marry :

  1. A) His foster mother,
  2. B) Foster – mother’s daughter
  3. C) foster’s –mother son’s wife.

A female child can’t marry :

  1. a) her foster- mother’s husband,
  2. b) foster-mother’s son,
  3. c) foster –mother’s daughter’s husband.

The Sunnis permit the marriage of the father of the child with the foster–mother, brother’s, or sister’s foster mother.

Marriage between Cousins :

In Muslim law, the relationship between cousins including all the first cousins parallel as well as across does not create any bar to the marriage, and thus, a Muslim male lawfully marries his paternal or maternal uncle’s daughter, paternal and maternal aunt’s daughter, and any female cousin of his father or mother.

A female can similarly marry her paternal and maternal uncle’s son, paternal and maternal aunt’s son, or any male cousin of her father or mother.

The relative impediments under Muslim Law are :

  1. A) Prohibition based on unlawful conjugation,
  2. B) Prohibition of marrying a woman undergoing Iddat,
  3. C) Absence of Proper Witness and
  4. D) Marrying while on pilgrimage.
  • Under the Sunni Law, a marriage in violation of relative impediments is irregular, while under the Shia Law, it is void.

 

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