BANGALORE: A marriage between two cousins belonging to Rajasthan's Shwetambar Terapanthi Jain community has come under the Karnataka high court scanner after a Mysore family court refused to decree a divorce on the woman's plea that 'an unwritten law' of the community had barred them from tying the knot.
The Mysore court had also ordered the woman to stay with her husband. She had appealed to the high court against the order.
Asking the trial court to adjudicate the matter afresh within six months, a division bench of Justices NK Patil and BV Pinto asked the wife to prove that there is a law in her community prohibiting marriage between cousins.
The woman has been advised to prove that such a custom prevails in her community and the marriage is contrary to provisions of Section 5 of the Hindu Marriage Act, 1955.
The high court refused to buy an argument by the girl's lawyer, who cited a Supreme Court judgment granting divorce to a Khatri community couple who were relatives.
"The husband and wife in the present case are Aroras (a community) who do not belong to the orthodox class of Hindus and known to be much more liberal (than Khatri community) over the prohibited degree between the two spouses," noted the judges.
In 2008, Rakhi Shah, a resident of Mysore, filed a petition in a local family court seeking divorce. She alleged that she was married to her cousin brother, Rakesh Shah from Bangalore, against her wishes. Rakesh's mother was the elder sister of Rakhi's father.
She said Rakesh had forcefully married her at a lodge in Bangalore on February 16, 2005. The wedding was later registered in Bangalore. She sought nullity of the marriage saying her community does not permit the same between cousins.
Rakesh claimed Rakhi had willfully married him and she had sought divorce under pressure from her father and other family members. He also filed a petition in the family court seeking restitution of conjugal rights. He argued that marriage between cousins was permissible in their community.
Rakesh told the court that Rakhi stayed with him till April 15, 2005, when her family forcibly took her back. "She is ready to come back to me, but is acting under her family's influence," he contended.
(Names of the parties have been changed)
What the law says
Section 5(4) of Hindu Marriage Act, 1955, says a marriage may be solemnized between any two Hindus, if the parties are not in a prohibited relationship, unless the custom or usage governing each of them permits a marriage between the two.