History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c26.139

v2.c26.139

These rules about prohibition on the ground of sapiṇḍa relationship cause great difficulties in modern times, when owing to the rapid spread of co-education and the rise in the marriageable age of girls, love marriages have become somewhat frequent. Lovers do not stop to consider such (to them) trivial matters as sapiṇḍa relationship, but the law is often inexorable. The narrowing of the limits of sapiṇḍa relationship is permitted by the authors of commentaries and digests only on the ground of immemorial family, caste or local usage. For example, the same authors, who hold that marriage with the maternal uncle's daughter is sanctioned by Vedic texts and custom, condemn and forbid marriage with one's paternal aunt's daughter or with one's maternal aunt's daughter (vide below). There are a few verses cited from the smṛtis which favour the narrowing down of sapiṇḍa relationship. For example, the Caturviṁśatimata1093a states 'According to Śākaṭāyana there is no blame in marrying a girl who is 7th or 6th or 5th (from the common ancestor); similarly Manu, Pārāśarya, Yama and Aṅgiras say that one may marry a girl who is third or fourth (from the common ancestor) on both sides (i. e. from her father's side or mother's side). Whoever enters into such marriage alliances by relying on the usage of his country or of his family is always entitled to associate with people and this is seen from the Veda'. Parāśara (as quoted in the Nirṇayasindhu and other works) says 'a man who is himself fourth or fifth (from the common ancestor) may according to Parāśara's view marry a girl who is 4th or 6th (from the common ancestor), but one who is himself fifth cannot marry a girl who is also fifth (from the common ancestor).' The Saṁskārakaustubha, the Sāpiṇḍyadīpikā and a few digests hold these verses authoritative and allow such marriages provided they are in accordance with local or family usage. As against this the following facts have to be remembered. One of the maxims of interpretation is that where there is conflict between smṛti texts, the preferable rule is to follow the opinion of the majority.1093b Gaut., Manu, Yāj., Marīci and numerous other smṛtikāras are opposed to these dicta. The second rule is that Manu has the highest authority among smṛtis and that smṛti which is opposed to the dicta of Manu is not commended.1093c The above passages are opposed to the words of Manu on sapiṇḍa relationship and about marrying a maternal uncle's daughter (Manu V. 60, III. 5, XI. 171-172). A third point about the above texts is that several eminent works like the Nirṇayasindhu and the Dharmasindhu1093d hold that some of these verses are baseless and not genuine and that they really refer to persons adopted or persons descended from wives of different castes of the same common ancestor; and lastly even those works that support such narrowing of sapiṇḍa relationship for marriage do not advocate it for all and sundry, but only where there is a local or family usage to that effect. Therefore, marriages among persons who are 3rd or 4th or 5th from the common ancestor cannot be regarded as valid in general, but only on the ground of usage. The following diagram will furnish some examples of the narrowing down of sapiṇḍa relationship.