This paper aims to give a holistic approach towards insanity as a ground for
In specific, it aims to explore and critically analyze the pre requisites for
marriage under the different family law acts prevailing in India and also the
grounds for divorce.
India as a country has a huge population and any lacunas or ways to exploit the
laws will create huge disruption is the minds of people in the form of
preconceived notions and unfounded superstitions. Therefore, it becomes
necessary to critically analyze these laws.
What is marriage?
Marriage can be understood as the union of two people and a celebration of their
love, affection and respect for each other.
When you marry someone, you marry the entirety of them, you vow to stand by them
in good times and bad and in good health and bad health.
Marriage can be understood as a legalisation of living together as a family.
We cannot understand marriage to be a legal license to procreate on reproduce in
this day and age. It has more to it, marriage has much more to it.
It embodies commitment and security.
When we understand insanity to be a ground for divorce, it is almost as if we're
throwing away the fact that we are committed to this one person.
We vow to take each other in good health and bad, which means we should stand by
one another when they're mentally disabled or challenged. This embodies the
essence of marriage.
Mental health is something that should be dealt with in a sensitive manner, one
shouldn't associate it in a careless manner with divorce.
It's not appropriate to take two delicate things and compare them and associate
them in the most insensitive manner.
Insanity as a ground under The Hindu Marriage act of 1955
Marriage being an important social institution in India and it forms the basis
of the social structure in India. The Hindu marriage act is the backbone to
It mentions insanity as a grounds under section 5, section 12 and section 13 of
the act respectively.
The main issue with this is that, it reinforces stigma into the concept of
mental health and basically places a man suffering from any sort of mental
illness to be unfit for marriage. It also makes illogical connections between
insanity and procreation which brings in a lot of confusion and wrong
information into the society, which leads to the formation of many stereotypes.
Section 5 of the Hindu marriage act deals with the conditions to be fulfilled
for a marriage to be called as a valid Hindu marriage.
Section 12 of the Hindu marriage act deals with voidable marriages and a
petition can be presented to the court of law to declare the marriage as void,
it basically provides the grounds for voidability.
Section 13 of the Hindu marriage act deals with the grounds for divorce
available under the Hindu marriage act
Section 5 Of The Hindu Marriage Act
Section 5 of the Hindu marriage act lays down the conditions to be fulfilled for
a valid Hindu marriage.
In particular, the second condition deals with 3 parameters of mental illnesses.
The three parameters are:
- Due to unsoundness of mind, one is unable to give consent to the
- Though capable of giving valid consent, Suffering from a sort of mental
illness that interferes with the marriage life and procreation of children.
- Subjected to recurrent attacks of insanity.
It is generally expected that section 5 of the Hindu marriage act, be read along
with section 12(1)(b). If the condition of section 5 is violated, it basically
provides a ground for voidability under section 12, through which a marriage can
be declared invalid.
Section 12(1)(b) of the act is a direct re course for violation of second
condition of section 5.
If the condition is critically analysed, there are a lot of issues associated
The restrictiveness of section 5, it only deals with one disability which
effects a marriage invalid; mental disorder. There are many other disabilities
but this act only deals with mental disorders which is the basis of stigma
surrounding mental health. It uses 3 terms in particular, unsoundness of mind,
mental disorder and insanity and unfortunately, none of the three terms have
been defined or explained in the provision. This leads to a lot of own
interpretation and the provision can be used recklessly and exploited by the
people due to lack of specifics.
Secondly, the act also associates mental disorder with procreation.
This is a huge misconception even from a medical point of view.
Considering the fact that mental disorders have not been specified ; this opens
interpretation to the fact that all sorts of mental disorders affect procreation
which is baseless. Not all mental disorders, affect procreative abilities of the
people in marriage and drawing such a conclusion is dangerous. Impotency is a
serious problem and with no specifics whatsoever, it cannot be associated with
mental illness. It provides baseless grounds for unfounded superstitions.
Flowing from the second issue, comes the third issue. The fact that second issue
talks about procreation and impotency. It is safe to say that the act believes
that procreation is the only purpose for marriage and if anything affects
procreation, the marriage can be termed invalid. This is shocking because in the
day and age of 21st century, one can reasonably understand that marriage has
purposes other than procreation. It is a union of love and bond and provides
security for the relationships. It's very silly to conclude that marriage is
only for procreational purposes because our country is a welfare state now.
The protest for same sex marriage; people who are incapable to reproduce in due
course of sexual intercourse, arises from the fact that solemnisation of
marriage is an important event in anyone's life and it has more to it than
This goes against the basic vows of marriage where one vows to be with their
significant other in good health and bad. This circumstance can be misused by
the petitioner claiming that hiding of mental disorder prior to marriage falls
within the ambit of "mental fact"
And thereby seeking annulment. Mental health is a sensitive matter and putting a
straight jacket formula around it, creates a lot of unwanted confusion.
It becomes important to mention the case of R Lakshmi Narayan v Santhi
in this case the husband wanted to divorce his wife on the grounds of mental
illness. None of the documentary evidence provided or adduced conferred with the
fact that she was suffering from mental illness. The wife disagreed with every
claim made and the trial court, high court ruled in favour of the wife, and held
that the court of law is not a medical board and based on how the respondent
answers, one cannot declare her mental state.
The supreme port, the grounds based on which any conclusion of mental illness
has been made is baseless and it's providing a way for the husband to exploit
the wide interpretation of this code. To brand her to be unfit to marriage, the
extent of the ailment has to be proved and she cannot be merely branded unfit
for marriage because she has a mental disorder, the purpose of the law is truly
lost in that way.
In another case of Om Prakash Gupta v Pushpa Kuma
r, many questions of
law were raised, including:
- The meaning of the term idiot
- Determining the degree of idiocy to be unfit for marriage.
In this case it was highlighted that throwing terms like "idiot" without
properly defining it provides ways to exploit the true meaning of law and
accordingly in this case, the appeal was dismissed due to lack of evidence.
Section 13 of the Hindu marriage act, deals with grounds for divorce. It
elaborates on the concept and the grounds for seeking divorce.
Clause 1 cub clause (iii) provides mental disorder as a ground for seeking
The provisions elaborates that mental disorder means mental illness whether
arrested or incomplete development of mind, psychopathic disorder or any other
other disorder or disability of mind and includes schizophrenia.
Psychopathic disorder means a persistent disorder or disability of mind which
results in abnormally aggressive or seriously irresponsible conduct on the part
of the other party and whether or not it requires or is susceptible to medical
In the case of Sharda v Dharmapal
 , it was argued that making the wife
undergo medical examination was in violation of article 21 of privacy and
The court held that if they have a prima facie case, one can order medical
examination and if the party doesn't follow the order, then an adverse inference
can be drawn. The Supreme Court also held that as long as the schizophrenia
doesn't gravely affect the marital life, this provision cannot be invoked.
The true essence of the procedure is to grant divorce for anything that
interferes with the marital life
In another case of ram Narain gupta v smt Rameshwari gupta
about the burden of proof on proving that the mental disorder affects the
stability of marriage. T
he burden of proof is on the person claiming mental illness to prove that it
significantly interferes with the martial life.
It was also consequently argued tho at to achieve this ground, one has to
considerably prove that whatever mental illness they suffer from, materially
interferes with the martial life.
In Kollam Chandra Sekhar v Kollam Padma Latha
Padma Latha, justices GS Singhvi and gopala Gowda highlighted on the degree of
mental illness and stressed on the fact that it should be of a high degree that
it interferes with the marital life.
Severe mental stress or emotional disturbances does not mean that the person is
suffering from any mental disorder or sort. "Manifesting Schizophrenia like
behaviour" doesn't prove any mental illness.
The case of Tallam Suresh Babu v T Swetha Rani
 deals with aggressive
schizophrenics and the court held that if someone is diagnosed with
schizophrenia, they automatically don't becomes aggressive. The aggressive trait
that interferes with marital life is only in few cases and it has to be proved
that the person is an aggressive schizophrenic.
There court also provided a clear distinction between section 12(1)(b) and
section 13(1)(iii) dealing with voidable marriage if section 5(ii) is
Contravened and a divorce on ground of mental disorder is sought for. The court
pointed out that:
- In order to file a case under Section 12(1)(b), the person doing so has
to either prove that the presence of unsoundness of mind of the other party
hinders valid consent of that party or the mental disorder of the party is
such that the same will affect the marriage in the long run and procreation
of children will be affected as well.
- For a case to fall within the ambit of Section 13(1)(iii), it will be
sufficient for the petitioner of the case to prove that the respondent has
an unsound mind which is incurable or has been subjected to frequent
insanity attacks which will make the lives for both the petitioner and the
In Hemali Bindesh Kelaiya v Bindesh Jayantilal Kelaiya
, there was a
divorce being filed on the basis of recurrent attacks of anxiety and because of
this the husband used to abuse and harass his wife.
This case took into consideration the question of law as to whether a Hindu
marriage between two parties can be dissolved based on whether one suffers from
In this case it was held that the husband was suffering from sleeplessness and
stress medication was going on and since the evidence adduced didn't confirm any
mental illness, divorce was not granted.
It becomes important to highlight the plight of woman when it comes to this
In due course of that, when any mental disorder occurs in a young girl, the
parents get worried.
The basis of worry is basically two fold:
The fact that women are already considered as burden and are to be married or as
quickly as possible and the fact that if they're suffering from any mental
disorder, it becomes even more difficult for them and they become a bigger
This causes a lot of stigma and women are put under mental torture and mental
pressure to commit suicide.
Consequently, this causes hurry amongst the parents to marry the women off even
only when they're symptomatic.
Women suffering from mental disorders are often abandoned by their husbands and
family and they're stranded alone and their lives are shattered beyond repair.
The Ostracization Of Women Occurs On Three Counts;
- Firstly, their female status
- Secondly the mental disorder
- Thirdly, being divorced or separated.
Contrastingly, the plight of the men is much different. If a man is suffering
from major mental disorder, it becomes the duty of the women to provide and care
for him regardless of the trauma and work she might be put through. It is
expected of the women to stand by their men even during these hard times.
Another angle to be given consideration, is the treatment of marriage and
divorce in other family law acts prevailing in India.
Under the special marriage act of 1954, is meant for any:
Person in India and Indian nationals abroad, irrespective of the faith that the
individual may profess. It also provides for registration of marriages in this
act which are solemnised in any other form. Section 27 of this act lays down the
same grounds of divorce like that of section 13 of the Hindu marriage act.
Under the Muslim law, marriage is regarded as a civil contract, a kind of
legalisation of marriage for the procreation of children.
In cases involving a person of unsound mind, if the guardian of the person
concerned considers such marriage to be in the interest of society and is
willing to take up all the monetary obligations of the marriage, such marriages
can be performed.
Divorce or talaq cannot be obtained easily and must be preceded by a
conciliation session by two arbiters and must be for a reasonable cause.
A woman can obtain a decree of divorce under "the dissolution of Muslim marriage
act, 1959" if her husband has been insane for 2 years.
Under the Christian law, marriage is voidable if either of the part is a lunatic
or an idiot. Christians can obtain divorce under the Indian divorce act of 1869
on grounds of unsoundness of mind, provided that it is in curable and must be
present for at least 2 years before the petition was presented.
Why Are Amendments Necessary?
Since the marriage rules were created, a lot has changed. All forms of mental
illnesses can today be effectively treated. Therefore, it is believed that it is
past due to eliminate from the Hindu Marriage Act and the Special Marriage Act
all expressions that allude to or indicate a mental condition. The explanation
for this can be summed up as follows:
The inability to offer a legal consent as a result of mental incapacity is the
primary ground for being unable to get married. Why single out only the
unsoundness of mind if the legal permission is required for marriage? Any
incapacity brought on by a reason must be regarded as a disability. The term
"unsoundness of mind" should not be used because it stigmatises mental illness.
It should be noted that, unless they are experiencing severe symptoms, most
people with significant mental problems are able to give their consent.
Moreover, in Hindu rituals of marriage, in most of the cases, consent is hardly
taken from the girl at any stage of marriage. In such cases, it is actually the
proxy consent by the parents/guardians of the girls. If the provision of valid
consent is considered necessary, it can be retained without any reference to
unsoundness of mind
It is difficult to determine how a person with a mental condition is unfit for
marriage because the second point, "mental problems of such a form or to such an
extent as to be unfit for marriage," is highly ambiguous. Numerous physically
debilitating conditions exist as well, and because of these, a person may be
deemed unfit for marriage. These, however, are not included in the list of
disabilities. Hence, why is there discrimination against mental disorders?
Incurability of mental disorders is emphasized as a main factor of its inclusion
in the list. However, with advancement in the field of psychiatry, it is now
possible to treat almost all cases of mental disorders and almost all persons
with mental disorders, except for a very small minority, can live regular lives.
Therefore, considering mental illnesses as a barrier to marriage is quite
irrational and discriminatory.
Unfitness to procreate a child is the third point. Children's reproductive
diseases are a complicated topic that include various gynaecological,
genitourinary, endocrinal, and neurological disorders in addition to a few
psychological ones. Why should just mental problems be classified as a
disability, leaving out many physical ailments, since mental disorders only
contribute a small portion to this unfitness? It is important to note that
Section 13 of the Hindu Marriage Act does not list sterility as a reason for
divorce. Therefore, restricting incapacity to have children due to mental
illnesses alone is inappropriate.
In the condition of divorce/judicial separation, there is mention of "incurably
of unsound mind." The first point is that most of the mental disorders are now
curable. The second point is that anyone may also acquire a physical illness
whether before or after the marriage, which may be incurable and the person so
afflicted may be unable to live a normal conjugal life.
However, no illness other than "incurably of unsound mind," leprosy, and
venereal diseases is listed under the ground for divorce/judicial separation.
Thus, the provision is quite discriminatory for persons with mental disorders,
and it denies them the right to remain married.
The UN Convention on the Rights of Persons with Disabilities (UNCRPD), 2006, has
been signed and ratified by India. The purpose of UNCRPD is to promote, protect,
and ensure the full and equal enjoyment of all human rights and fundamental
freedoms by all persons with disabilities and to promote respect for their
Mental illness comes under the categories of disability under the UNCRPD. Right
to marry may be regarded as a basic human right. Thus, denying the persons with
mental disorders the right to marry is not in accordance to the UNCRPD.
- The Hindu Marriage Act, 1955
- The Special Marriage Act, 1954
- The Indian Divorce Act, 1869
- Muslim laws.
- Christian Laws.
- UN Convention on the Rights of Persons with Disabilities (UNCRPD) 2006.
[Last accessed on 2015 Jul 21]. Available from: http://www.un.org/disabilities/
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