The general rule is that the parties to a statutory marriage must not be within the prohibited degrees of consanguinity or affinity. Before 1970, the prohibition of marriage within certain degrees of consanguinity and affinity was prescribed by section 33(1) of the Marriage Act, which still governs marriages celebrated before that date.
However, the prohibited degrees in respect of marriages contracted since 1970 are now contained in the Matrimonial Causes Act 1970. Under this statute, a marriage is prohibited if the woman is, or has been, the man's ancestress, descendant, sister, father's sister, mother's sister, brother's daughter, sister's laughter. Marriage is also prohibited on the ground of affinity between a man ind his wife's mother, wife's grandmother, wife's daughter, wife's son's daughter, wife's daughter's daughter, father's wife, grandfather's wife, son's wife, son's son's wife, daughter's son's wife. The reverse position applies to a man. It is immaterial whether the relationship is of the whole blood or half-blood, or whether it is traced hrough, or lo, any person of illegitimate birth.19 But an exception has been made to this general rule. Section 4 of the Matrimonial Causes Act 1970 enables two persons within the prohibited degrees of affinity vho wish to marry each other to apply, in writing, to a High Court Judge for lermission to do so.
The judge may by order permit the applicants to marry each iher if he is 'satisfied that the circumstances of the particular case are so xceptional as to justify the granting of the permission sought'. It is necessary o ascertain what may amount to the 'exceptional circumstances' that will justify le judge permitting such unusual marriage. Nowhere in the statute is the phrase exceptional circumstances' defined. It is submitted that the phrase means situations that are beyond the ordinary and are sufficiently serious as to permit the celebration of a marriage which otherwise would be void. Such situations would not include the fact that the parties are very much in love with one another or have been engaged to each other for a long period. But, where the relationship is out of the ordinary, the position is different. An illustrative case is where parties who come from a village cohabit in a town without knowing the relationship between them, and beget a child. If they want to marry each other this may qualify as an exceptional situation.
Where the parties marry in pursuance of permission granted by the judge, their marriage will be valid notwithstanding that they are within the prohibited degree of affinity, but it may be annulled on any other ground. High Court judges do not posses inherent jurisdiction in this respect. They can fulfil this function only where the President has entered into an arrangement with the Governor of a State for the fulfilling by judges of the High Court of that State, of such functions." Rules of court made by judges of the High Court of that State of such functions. Rules of court made under the Act may include provisions lor the practice and procedure with regard to such applications. Beside the strict legal considerations, the moral propriety of the exception allowed by section 4 of the Act is important. It may be argued in support of the provision that section 4 applies only in 'exceptional circumstances'. While the contention may be valid, the section is nevertheless open to abuse and therefore dangerous, especially as the "exceptional circumstances' may partly be created by the parties.