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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
LEGAL ARTICLE
Should Same Gotra Marriages be made Illegal
Prof. Santosh Singh

The issue to marry or not to marry in the same GOTRA, has been responsible for emergence of copious literature in the recent past and this topic seems to have been very hotly discussed and debated at different platforms. While the legal sanctity of the marriage between two consenting adults has been upheld by the Hon'ble Supreme Court, the societal restrictions pose a bold contradiction to it.

Desirability or undesirability of 'marriage in the same Gotra ' has become a common interrogation to all the conscious humanity and while the innocence and love have been a big casualty in the recent past in a few ethnical societies of Nothern India, urgent steps are called for in saving the precious lives from peril and confusion. In depth of feelings and fertility of fancy, a parent killing/sabotaging the consensual alimony defies not only the constitutional laws but also betrays love and affection detrimental to the harmony of society.

A popular saying goes 'Marriages are made in heaven'. The Indian scriptures are also collaborative to it "Purva janmarjita nari, purva janmarjitam dhanam, purva janmarjita vidya, agre dhawati dhawati". If we go back to pre-Vedic age, there are no instances of any such disharmony and during Stone and Pastoral age, when people used to live in caves /commune, the inter-relationship between the inhabitants were very much there without any problem. During the vedic period, of course, instances are there where pedigree mattered and normally alliances were sought amongst their own group who usually happened to be their blood relations. Post BC, history is replete with examples where nuptial knots were tied within own relations especially during the Mahabharata period.

German scholar Max Mullar had defined " gotras " as descending from eight sages and then branching out to several families. The eminent scholar P.V. Kane, author of the " History of Dharamashastra " 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."

Sometimes back there was an article which reported that there are more occurrence of genetic defects in kids in communities that allow close relatives to marry. It also mentioned that the Government is planning to issue a warning about it, because it is not just the families that suffer when they have kids with problems but rest of the society also ends up paying for it. Muslims, who permit marriage between cousins, should have suffered serious genetic disorders. And by now they should be a genetically infected lot. But is that the case? I don't think so.

In the Indian Hindu community, especially in the Brahmin caste, marrying a person of the same Gotra was prohibited, since persons belonging to the same Gotra are said to have identical matrilineal dissension. In ancient India when Gurukul was in existence, the shishyas (the pupils) were advised against marrying any of Guru's children as shishyas were considered Guru's children and it would be considered marriage among siblings (though there were exceptions like Arjuna's son Abhimanyu marrying Uttra, the dance student of Arjuna in Mahabharata).

The issue of same Gotra marriages is hitting the headlines for last several months. Several organisations of Haryana, Delhi, Rajasthan and U.P. are demanding that Hindu Marriage Act be amended to ban marriages between the same Gotra . They are advocating their case on the plea that same gotra boys and girls are like brothers and sisters and hence their marriage is against the old customs and traditions.

The Delhi High Court and the Punjab and Haryana High Court have rejected the petitions demanding ban between the same Gotra marriages stating that there is no such provision in the statute book.

Various Khaps of Haryana recently held a panchayat at historical Meham Chobisi Chabutra in Rohtak District of Haryana to press their demand for amendment in the Act banning same Gotra marriages.

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 organizations - but national parties like BJP, too, have been wavering. The BJP on the other day talked about building a "consensus" on the issue, indicating that 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.

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 were to be recognized 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 a 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 .

The Shankaracharyas, self appointed saints, gurus , NGOs and those who claim to be the custodians of the Hindu religion remain conveniently silent as the police themselves are mere spectators of these brutal beatings and killings. The Panchayat members, targeting these young couples, who are mostly illiterate and completely ignorant about the Hindu religious texts, traditions, conventions and the laws of the land. There is no one to check their illegal and cruel ways, in which they pronounce and execute inhuman punishments. One of the most disturbing thought in all of this is that such crimes are being committed in broad daylight and the Minister of Home, Minister of Law, Social Justice Department, Woman and Child Development Department, National Human Rights Commission as well as independent commission for women all appear to be unconcerned. If the four recognised Shankaracharyas , reputed saints and Gurus of the Hindu religion, legal experts and representatives of the State Government of Uttar Pradesh and Haryana could sit in a conference and make it clear to the people of these two states so as to what " Gotra " actually is and why same Gotra marriage is prohibited in the Hindu religion. What changes have taken place over the passage of thousands of years due to education, migration of people, cross culture, changing ethos and culture have to be made clear. The position of the Indian law in this matter has to be established.

The innocent blood of young couples is being shed in the name of religion in the 21st century. Remedial measures and changes in the State and Central laws, if any, are required to settle the issue as soon as possible.

 
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