NEW DELHI: 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 scriptures 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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