For long marriages in India were considered sacrosanct, fixed in heavens and were to last at least full life if not next. Sanctity of marriage in Indian society is reflected in the low divorce rate in the country. India with 1% divorce rate is considered to have lowest divorce rate in the world while the highest rate of 87% is in the small country of Luxembourg.
This is the good news.
But every good news comes with its own quota bad news embedded in it.
The official divorce rate in India comaflouge the real tragedy related to marriages in the country- extraordinarily large number of Indians, more so women are compelled to stay in unhealthy and abusive broken marriages either because they do not have financial security or for the sake of their children or more importantly the stigma attached to divorce in the Indian society.
Make no mistake, with weakening of familial linkages, increasing nuclearization of families and more and more women joining the work force (both formal and informal) there has been an uptick in divorce rates in recent time and is likely to increase further.
Divorce has never been easy in India. Some say it has saved the Indian society so far.
But there is a dichotomy in Indian Laws related to marriage and divorce-
“Those suffering from severe mental illnesses (curable or incurable) have been on the receiving end institutionally, legally and familialy.”
This blog tries to dissect the existing statutes related the Mental Illness and solemnization of Marriage. As a natural corollary it also seeks to examine the grounds of divorce more particularly with reference to lunacy, insanity and mental disorders.
The blog also tries to understand the contemporary changes brought by Mental Health Care ACT 2017 and India becoming a signatory to UNCRPD and examines the urgent need for repeal of certain sections of Laws related to marriage and divorce to bring back a sense of sanity to the Indian statute book.
Let me begin with a caveat.
Traditionally in the country, the brunt of divorce on the ground of lunacy, insanity and incurable/ curable serious mental illness has been borne by the female spouses’
But no longer!
In the recent decades the clock has turned full circle.
With financial empowerment coming from the increased participation of women in the work force, the male spouses too are today on the receiving end. In last two decades increasing number of care giver spouses (more of them female ) have asked me what is the exit route available to them from the Matrimony.
It is natural to first examine the statutory provisions.
And.,I will rather start with Hindu Marriage Act 1955 (further amended in 1976) not because it affects the most number of Indians but more particularly because, its provisions are most insensitive to the mentally ill.
What does the relevant Clauses of Hindu Marriage Act say: Let us first examine the clause related to Conditions for a Hindu Marriage (Clause 5), Clause pertaining to Voidable Marriages (Clause 12) and Clause relating to Divorce (Clause 13) all of which are despicable and discriminatory for the Mentally ill.
Clause 5: Condition for a Hindu Marriage.- A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of
(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;
It is important to note here that the original provision was “neither party is an idiot or a lunatic,” which was changed to the present provision by Marriage Laws (Amendment) Act, 1976.
“Recurrent attacks of epilepsy” was also a disqualification for marriage, which was removed by the Marriage Laws (Amendment) Act, 1999.
Clause 12. Voidable Marriages.-
(1) Any marriage solemnized, whether before or after
the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(b) that the marriage is in contravention of the condition specified in clause (ii) of
Section 5; or
Clause 13. Divorce– (1) Any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the ground that the other party-
(iii) has been incurably of unsound mind, or has suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with the respondent.
Explanation- In this clause-
(a) the expression “mental disorder” means mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or disability of
mind and include schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability
of mind (whether or not including sub-normality of intelligence) 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 treatment; or
It can be seen that the grounds of divorce on the ground of mental illnesses are rather wide. It not only includes spouses of “unsound mind” (enigmatically it does not talk about so declared by court)., but it also includes suffering either continuously or intermittently mental disorder of such a kind and such an extent that the petitioner cannot be reasonably be expected to live with the respondent. Further the definition of the “mental disorder” in the explanation is rather broad and expansive and specifically includes Schizophrenia.
It is important to note that the damage to the cause of Mentally ill was sadly done by the Law Commission Report of 1974, which became the basis of Marriage Laws (Amendment) Act, 1976. Before this Amendment happened, it was rather difficult to divorce on the ground of insanity and the provisions were rather tough.
The pre 1976 Clause for divorce or judicial separation was as under-
i) Insanity (whether curable or incurable) – lasting for not less than two years
ending with the filing of the petition was a ground for judicial separation
ii) Incurable insanity- lasting for at least three years immediately preceding the
filing of the petition was a ground for divorce
In 1974, the law commission recommended the abolition of the duration for
the purpose of treating it as a ground for divorce.grounds for judicial separation and divorce, the legislature not only accepted the aid recommendation, it also went further to explain and expand the concept of insanity, mental disorders and unsound mind. All the petitioner has now to prove that the ” mental illness” is such that the petitioner cannot be expected to live reasonably with the petitioner.
Existence of such provisions on the statute book in an era where all the severe mental illnesses/ disorders even in those case where they can not be fully cured, can be eminently managed with medication and sufferers can lead a near normal life, militates against common sense. It makes it an urgent case for repeal of obnoxious, stigmatizing and discriminatory provisions. Unfortunately the judicial pronouncements too on the subject have been rather confusing- while there have been a handful of judgments in recent times which have denied the divorce on the ground of mental illness, bulk of the jurisprudence is where the mentally ill have normally been wronged.
Moving beyond the Hindu Marriage Act, the provisions of Special Marriages Act 1954 too are equally damning to the Mentally Ill. On the contrary a close examination of Marriage Acts as applicable to other religious communities in India shows the following egalitarian position-
(a) In the case of Parsi marriages there is Mental illness neither makes the marriages voidable nor its existence is a basis for divorce
(b) As per Muslim Personal Laws, on his own a severe mentally ill cannot be married but the marriage can be solemnized if the guardian thinks it is in the best interest of the society. As I understand the provision is that 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
(c) At least I have not been able to find out a clause in Statute governing Christian marriage in India, where mentally ill are denied the matrimony.
Why Laws Must Change-
The Hindu Marriage Act, Special Marriage Act and even some provisions of Marriage Acts pertaining to Marriage and Mental Illness and Divorce and Mental Illness are in urgent need of re-booting and the reasons are as follows-
(a) MCHA 2017: They are repugnant to the best practices Mental Health Care Act, 2018. The true justice shall be total elimination of all clauses related to mental illness, marriage and divorce.
(b) UNCRPD: In a country that was among-st the first to sign UNCRPD, there is no place of denial of marriage or granting of divorce in the name of mental illness.The crux 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 inherent dignity. Mental illness comes under disability (psycho-social 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 or allowing divorce on the ground of Mental Illness is in gross violation of sacrosanct provisions of UNCRPD.
(c) INCAPABILITY TO GIVE VALID CONSENT Off repeated claim that severely mentally ill are incapable to give valid consent for marriage is all humbug in an era when most mental illnesses, irrespective of their seriousness are eminently treatable and unmanageable, even in those cases which are not fully curable. Such a talk of “incapability to give valid consent” in all humbug in today’s era
(d) INCURABILITY OF MENTAL ILLNESS The term incurability of mental illness or mentally ill to such an extent that not fit to be married too have lost all the relevance. I know people suffering from severe Bipolar Disorder and Schizophrenia leading rather normal life.
(e) EPILEPSY GONE, TIME FOR MENTAL ILLNESS PROVISIONS TO BE BOOTED OUT It is important to note that earlier epilepsy too was considered as a ground of divorce that has since been nullified. The time has come to accept that like persons suffering from mental illnesses too like any physical illness are as normal as others or can lead normal life with appropriate intervention. I have also seen many persons suffering from mental illness marrying each other as they find compatibility. The inclusion of unsound mind, insanity and mental disorders is outright repugnant to the modern days India.
(g) INCURABILITY OF UNSOUND MIND Often in a court of law “incurably of unsound mind.” is presented as the clinching ground of divorce. This has become complete non sense in the era when all the mental illnesses can be treated. Moreover, why divorces on incurable unsound mind or incurable mental disorders. What if a person after marriage contracts a physical illness which makes him/ her unable to procreate. Also in the modern era of IVF/surrogacy is procreation such a issue that it should become a valid ground for divorce
(h) CONTINUOUS OR INTERMITTENT MENTAL ILLNESS and worst is the ground for divorce that the ” “person has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent” is most abhorrent and stigmatizing and out right discriminatory against the mentally ill. Is mental illness is the only reason why two persons are unable to stay with each other. Why single out mental illness for discrimination.
It is time to re-boot the laws and make India discrimination free and stigma free for Mental Illness,
No more prohibition of Marriage/ Denial of Marriage on Account of Mental Illness
No More Divorces in India on Account of Mental Illness.