Evidence of Gotra


Same gotra marriage is prohibited under HMA unless permitted by custom of marrying parties.

Now, if validity of a marriage is challenged on above ground, what will be means and modes of proving the gotra ?

and if the spouses are taking defence of custom how they will prove the same ?

 
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Medical Value Travel

Sh. Tripathi ji,

My 2 cents to your que. is scientific.

The 49 established gotras are clans or families whose members trace their descent to a common ancestor, usually a sage of ancient times. The gotra proclaims a person's identity and a "gotraspeak" is required to be presented at Hindu ceremonies. The national debate currently ON, on people of the same gotra are not allowed to marry is most significant in Hindu Mariage Law (and may be yet to come Buddhist Marriage Law) and thank you for asking such a deep stimulating (read contentious) question.

One professional DNA company says it can use a 37 - marker Y-DNA test to "verify genetic relatedness and historical gotra genealogies for Hindu and Buddhist engagements, marriages and business partnerships." Can u see the tremendous busines sopoortunity here :-)  This has not been supported by independent research however. Any Y-DNA test can be used to compare results with another person whose gotra is known is scientific theory currently being peer reviewed as far as Hindu Gotra system is concerned. World over scientific bodies are all eyes on Hindu Goatra system testing which they consider a goldmine in medical lab. testing business making proposition.

Genealogical DNA tests have become popular due to the ease of testing at home and the various additions they make to genealogical research. Genealogical DNA tests allow for an individual to determine with high accuracy whether he or she is related to another person within a certain time frame, or with certainty that he or she is not related. DNA tests are perceived as more scientific, conclusive and expeditious than searching the civil records. However, they are limited by restrictions on lines which may be studied. Also, the civil records are always only as accurate as the individuals who provided or wrote the information.

The earlier Y-DNA testing results are normally stated as probabilities: For example, a perfect 12/12 marker test match gives a 50% likelihood of the most recent common ancestor (MRCA) being within 7 generations back, while a 67 of 67 marker match gives a 95% likelihood of the MRCA being within 6 generations back.

As presented above in mtDNA testing, if a perfect match is found the mtDNA test results can be similarly helpful, in spite of the extra difficulty in traditional genealogy itself due to the lack of matrilineal surname information in most cultures (such as Matrilineal surname).

It has also been speculated that these tests might not have all the answers and are limited to results, by lack of databases and resources that professional setup DNA Companies use to get their results. The databases are what the Ancestry - DNA companies go off of for findings with the testing of other people with the same DNA or Surname. The surname is the last name of the male family member as we Hindus follow Patrilineal system of clanning (Hindu family name).

The Y-DNA lineage from a Hindu father to a Hindu son can have complications including unusual mutations, secret adoptions, and false paternity (i.e. the father in one generation is not the father in birth records, a discovery that might upset some people and may lead to cause of action for a civil damage suit may be in the days to come at varous Courts). A further drawback, at least with autosomal tests, is their present state of imperfection and large margin of error (up to 15%, according to some genomics experts) have been noticed.

For further reference one may read:

A rationale for and discussion of government or other regulation of ancestry testing is found in The Illusive Gold Standard in Genetic Ancestry Testing. Lee et al. Science 3 July 2009: 38-39

Coryell, Taylor. Identity and Ancestry. Research paper. Article. 18 April 2010

The National Geographic Genographic Project

BTW, by stirring up same Gotra debate the business of "pandas" at famous "Hindu teerth" places will go onto a mega rise :-) Why, becuase not all general public can afford DNA testing as advertised by DNA testing companies and a time will come when Courts in India may recognise the "pandas record keeping process" passed on from generations upon generations. I hope members may understand what I mean to say here if they at any point of time experienced the record keeping of these pandas at holy places such as Haridwar / Nasik / Kashi etc. etc.

At the end I thank Sh Tripathi ji to stir up a deep debate. Oh we forgot about "proving customs" so it means Mullas and Myanes will become the actual Hindu Marriage Law "in practice" in the days to come :-)

Rgds.

 
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Legal Consultant / Solicitor

Hindu Law is restricting even marriage between cousins as they are Sapindas.

But in Southern India, it is a custom to give first preference to cousin for marriage of a girl.

Even in some areas marrying maternal uncle is a custom

 
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Retired

Kerala is  a matriarchal society. A friend of mine got married there about 40 years and after the marriage starting living in in-laws house. He told me that it was the custom there that the son-in-law (as opposite to daughter-in-law in other societies) becomes part of the family of his in-laws, takes over the property and performs all rites. Mr. Aravinthan has also confirmed that in South India, it is customary to marry one's daughter with the son of his brother-in-law (and vice versa) whereas in North India they are treated as cousins (brother and sister). 

 Every marriage can't be tested on the anvil of DNA nor are we mature enough and conditioned to go for it. It has been seen that during 20 years parents have very little role to play in selecting marriage partners. Boys and girls do themselves and for them Gotra or caste has no meaning (of course most of them end up in breakdown).

The sanctity of Gotra cannot be sacrificed at the alter of modernity. We have seen that laws end up being broken. KHAP law of Panchayats in Western U.P. and Haryana (preventing marriage between same Gotra) cannot be abolished by another law passed by Parliament. whether or not one likes it. There have been killings where marriage took place outside the caste.

Society takes thousands of years to evolve. Its customs and usages cant be changed in a stroke of pen. 

Most of the modern day youths detest the Karmakand after the death. But they willingly or unwillingly follow the custom. 

 
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The sustained effort by aggressive khap panchayats and their influential political backers to force leading political parties to have a rethink on same gotra marriages is patently illegal. Sixty-five years ago, in 1945, the issue was settled by the Bombay High Court which categorically declared same gotra marriages were legal. And that's been the law of the land since.

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 organisations - but national parties like BJP, too, have been wavering. The BJP on Thursday talked about building a "consensus" on the issue, indicating 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.

So, even as khaps spit fire at courts for holding such marriages legal, it is instructive to learn about the rigour with which two reputed judges went into the issue in 1945, much before Hindu personal law was codified. They consulted the writings of leading experts and delved into the wisdom of the Hindu scripttures to arrive at their verdict.

The case, 'Madhavrao vs Raghavendrarao', involved a Deshastha Brahmin couple and the two-judge bench comprised Harilal Kania, the first chief justice of independent India, and P B Gajendragadkar, who became CJI in the 1960s.

The essence of the case was whether 'sagotra' marriage or marriage within the same gotra was valid under Hindu custom.

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 was to be recognised 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 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.

But, the court anticipated this sort of an argument and garnered textual proof for intra-gotra marriage. German scholar Max Mueller had defined 'gotras' as descending from eight sages and then branching out to severalfamilies.

The Court, however, referred to eminent scholar P V Kane, author of the 'History of Dharmashastra', who had 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."

On this ground, the court concluded that it was impossible to accept the suggestion that in reference to the Brahmin families of today, their gotras and pravaras represent anything like an unbroken line of descent from the common ancestors indicated by the names of their respective gotras and pravaras. After consulting the texts of Manu and Yajnavalkya, the court observed that the requirements on gotra were recommendatory, rather than mandatory.

Finally, the court stressed on the need of Hindu society and law to keep up with the times. It said, "Courts have to construe the texts of Hindu law in the light of the explanations given by recognised commentators. But it must always be remembered that since the said commentaries were written, several centuries have passed by and during this long period the Hindu mode of life has not remained still or static. Notions of good social behaviour and the general ideology of the Hindu society have been changing. The custom as to marriages between persons of the same gotra in this case is an eloquent instance in point."
 


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Thank you friends.

Here I want to concentrate on leading of evidence before the court i.e. what evidences can be offered and under what provision of the Evidence Act those evidences would be admissible?

 
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Tripathi Sir,

Is it so that Sagotra Vivah is Prhibited under HMA. I don't think so.

Sec 3(g) "degrees of prohibited relationship"-two persons are

said to be within the "degrees of prohibited relationship"--

(i) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal

ascendant or descendant of the other ; or

(iii) if one was the wife of the brother or of the

father's or mother's brother or of the grandfather's or

grandmother's brother of the other; or

(iv) if the two are brother and sister, uncle and

niece, aunt and nephew, or children of brother and

sister or of two brothers or of two sisters ;

Sec 5. A marriage may be solemnized between any two hindus, if the

following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the

marriage

1[(ii)at the time of the marriage, neither party-

(a)is incapable of giving a valid consent to it in

consequence of unsoundness of mind; or

(b)though capable of giving a valid consent, has been

suffering from mental disorder of such a kind or to such

an extent as to be unfit for marriage and the

procreation of children; or

(c)has been subject to recurrent attacks of insanity or

epilepsy;]

(iii) the bridegroom has completed the age of 2[twentyone

years] and the bride the age of 2[eighteen years] at the

time of the marriage;

(iv.) the parties are not within the degrees of

prohibited relationship unless the custom or usage governing

each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the

custom or usage governing each of them permits of a marriage

between the two.

 

 
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lawyer/cyber law consultant/cyber crime investigator

here what i understood is sagotra vivah is prohibited.. here Adv pranjal has provided us legal section ... in India law and customs are different... in small villeges they give preferance to customs rather than law.. they have their own panchayats. they settle all the issues within panchayats of the village.  According to hindu customs sagotra marriage is prohibited but at the same time there is exception to this..If someone from another gautra adopt either boy or girl then there is no prohibiton to the marriage... so my question is what will change just by taking adoption...? according to me marriage should not be prohibited as in this fast moving world there are many people who don't even know about their gautra and also from which place they are belonged to. i just came accross some news so thought to share it with you...

http://www.expressindia.com/latest-news/court-rescues-couple-from-same-gotra-declares-marriage-valid-under-hindu-law/325043/


http://timesofindia.indiatimes.com/articleshow/5932546.cms

 
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UNEMPLOYED

DR TRIPATHY AND ALL OTHER FRIENDS,

FIRSTLY I LIKE TO CORRECT A THINGH, IE - THE WORDS 'GOTRA' OR MAY SAY, (SA-GOTRA)  & 'SA-PINDA' BEARS DIFFIRENT  MEANING ACCORDING TO HINDU PHILOSOPHY AND CUSTOM.

SA-PINDA MARRIAGE IS PROHABITATED AND VOID UNDER  HINDU MARRIAGE ACT NOT SA-GOTRA..

SA-GOTRA MARRIAGE IS NOT PROHABITATED UNDER  HINDU MARRIAGE ACT.

PLEASE FOLLOW THE ACTS POSTED BY MR P SHRIVASTAVA  IN THIS REGARD.

 
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UNEMPLOYED

PLEASE READ ' GO THROUGH' INSTEAD OF 'FOLLOW'.

 
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