Family law paper

Kirit P Mehta School of Law, NMIMS (Deemed to be University)

B.B.A LL. B (Hons.)

End Term Examination

Family Law

“A study on divorce based on mental illness in India”.

Submitted To:

Prof. Ishnoor

School of Law, NMIMS (Deemed to be University)

Submitted By:

Nikita Rathi

Roll No.- D024

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 Family law paper

ABSTRACT

Marriage is one of the most fundamental form of social organization and the progenitor of
many important legal rights. In Indian statutes for nullity of marriage unsoundness of mind is
a good ground. Determining unsoundness of mind, on the other hand, can be a challenging
task, particularly when done retrospectively. This paper examines a few cases in which the
nullity of marriage was questioned due to mental illness. In this paper we will be discussing
about Section 13 of The Hindu Marriage Act, 1955, which deals with divorce based on
mental health issues1. For better understanding of the extent of problems faced by people
with mental disabilities in India, we will also be discussing Section 5(ii) of The Hindu
Marriage Act, 1955, which deals with annulment based on mental disabilities2. Then we will
be discussing about the problems faced by women because of such laws and looking towards
the issue in a more comprehensive way. Finally, we will be concluding with what needs to be
done for reformation and betterment of the current situation.

Keywords:  Marriage, nullity, psychiatric disorder, schizophrenia

ABSTRACT....................................................................................................................................
1 The Hindu Marriage Act 1955, s. 13
2 The Hindu Marriage Act 1955, s. 5(ii)
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CHAPTER 1: INTRODUCTION ..................................................................................................

1.1. MEANING OF DIVORCE BASED ON UNSOUNDNESS OF MIND

………………………………. 4
1.2. RESEARCH OBJECTIVES.............................................................................................

1.3. RESEARCH QUESTIONS...............................................................................................

CHAPTER 2: REVIEW OF LITERATURE ................................................................................

CHAPTER 3: SCOPE OF THE STUDY ..................................................................................

3.1IMPORTANTCASELAWS …………………………………………………………8

3.2. RATIONALE OF DIVORCE BASED ON MENTAL ILLNESS ..................................

3.3 SCOPE OF SECTION 5(II) OF HINDU MARRIAGE ACT………………………10

3.4 PROBLEMS FACED BY WOMEN'S ………………………………………………11

CHAPTER 4: RECOMMENDATIONS .....................................................................................

CHAPTER 5: CONCLUSION ....................................................................................................

CHAPTER 6: REFERENCES .....................................................................................................

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CHAPTER I-INTRODUCTION

Marriage is regarded as sacrosanct by most Indians, rather than simply a sacrament. Marriage
is viewed as a haven for childrearing, a shelter from hardship, and the foundation of a
prosperous community (Abraham, 2006). Changes in Indian families also resulted from
modernization and urbanisation. A growing majority of families are nuclear in nature. As a
result of migration and mobility, families now live-in locations far from their hometowns.
Families have been scattered, mostly as a result of job hunting. These developments have
been followed by an increase in divorce rates. Couples who live and work in towns and urban
areas have more economic and partnership opportunities, prompting them to leave
unsatisfactory or unequal relationships (Ariplackal & George, 2014; Premsingh & Philip,
2014).

In India, the family, marriage, and divorce scenarios are intertwined with religious rites. Most
marriages contain religious ceremonies and traditions (Ramanuja, 2010). Religion has an
important role to play in this institutionalization of marriage. Every religion has their own
way of formalizing a marriage, but the basic feature being, only heterosexual couples have
been allowed to marry each other. This has been the case in many societies even today. But
all this has been changing gradually and the hegemonic view of marriage being a union
between two heterosexual individuals has been questioned and critiqued in many western
countries. Another change in thinking regarding marriage has been the normalisation of the
concepts of divorce and annulment of marriage.

1.1 MEANING; DIVORCE BASED ON UNSOUNDNESS OF MIND

Divorce is the official process for separation between married couples, for ending a marriage.
The difference between divorce and annulment is that in annulment the marriage is
considered void and invalid. Instances of divorce generally happen when there is adultery
involved, or domestic abuse, whereas annulment involves instances where a marriage was
based on fraud of some kind, from the very inception of that marriage.

In contemporary world, the most integral part of any marriage is valid consent. Valid consent
is any consent which is not forced and given with free will. So, the ability to give valid

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consent, for both the people marrying, holds great importance, especially in legal terms. But
not everyone is believed to be capable of giving valid consent. People with mental
disabilities are generally considered incapable of giving valid consent for various reasons.
Mental disability is an impairment of mental or psychological kind which may or may not
render the person incapable or limits the ability to perform basic life activities. Often people
with mental disabilities are termed of unsound mind. Although often considered
synonymous, there is a difference between unsound mind and mental illness. Indian law
accepts two related but distinct definitions of both. The only piece of law which defines
sound mind in Indian context is present in The Indian Contracts Act, 1872. It explains how
mental disability comes under medical condition, whereas unsoundness of mind is a legal
finding. The law states that a person with sound mind can understand the contract he is
making and forming a rational judgement as to its effects upon his interests. 3 Therefore,
mental disability is neither essential nor sufficient for the existence of an unsound mind.

But the laws that are prevalent in India for people with mental disabilities, especially in
context of divorce and annulment of marriage, are at times very ambiguous and regressive in
nature.
They do not take into consideration the different perspectives, especially the perspective of
those suffering from mental disabilities.

Now, Section 13 of the Hindu Marriage Act, amendment of 1976 provides a host of reasons
under which one can file for a divorce. Under the Section 13(1)(iii), the petitioner can case
for a divorce against the respondent, in reason for the respondent being suffering from a
mental illness as mentioned in the section4.

The section goes as follows-

“13(1)A marriage solemnised, whether before or after commencement of the Act, may on the
basis that the other party (iii) was incurably unhealthy in its mind, or was continuously or on
an intermittent basis, subjected by either the husband or the wife to such mental disorder, be
dissolved by a decree of divorce”5

3 The Indian Contracts Act 1872, s. 12

4 The Hindu Marriage Act 1955, s 13(1)(iii)
5 ibid
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1.2 RESEARCH OBJECTIVES

 To study the various case laws on divorce based on mental illness in India.
 To analysis the Rationale of section 13(iii) and section 5(ii) of Hindu marriage act
 To highlight the importance of mental illness as a ground for divorce from women’s
perspective
1.3 RESEARCH QUESTIONS
 Are laws on divorce based on mental illness have positive impact on the society?
 Are the laws on divorce based on mental illness are effective in India?
 Does the women’s face any problems because of laws on divorce based on mental
illness in India?

CHAPTER 2. REVIEW OF LITERATURE

Qureshi (2000) A Uniform Civil Code for India provides a short summary of the many
remedies available for matrimonies under Hindu, Muslim, Christian and Parsi personal rules,
and highlights in its Marriage and Material Remedies book. It also examined the causes for
judicial divorce under the 1955 Hindu Marriage Act and found that adultery and other
divorce grounds are the most prevalent.

Agrawal (2001) presents a succinct review of the numerous marriage remedies available
under the Hindu marriage act of 1955. In this article, we provide a list of the remedies. She
strongly criticised the 1964 amendment of Section 13(1) which included section 13(1A).
Unless the cohabitation and restructuring of the marriage rights between the parties is
revitalised, the parties have the right to petition for a period of one year or more after
adoption of the respective decrees.

In (2004) Janak Raj Jai also presents a review of the many Acts about divorce, such as the
Hindus Marriage Act, 1955, the 1869 Divorce Act and Special Marriage Act, 1954, and so
on, in his book Divorce: Law and Procedures. In divorce proceedings, he also highlights the
significance of a uniform civil code.

Singh (2010) A descriptive and thorough discussion of the concepts of marriage and divorce,
as well as the conditions for divorce, may be found in the S book, Unification of Divorce
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Laws in India. The book highlights and emphasises the crucial necessity for consistency of
divorce laws in India.

CHAPTER 3. SCOPE OF THE STUDY

3.1 IMPORTANT CASE LAWS ON DIVORCE BASED ON UNSOUNDNESS OF

MIND

There have been some interpretations and additions in the section due its vagueness to
express the extent of mental illness and its applicability. Smt. Hema Reddy v. Rakesh Reddy,
20026 a High court judgement of Andhra Pradesh found that no reason for divorce or judicial
divorce would be for mental illness and not only a depression of either partner. The wife
always "feels sad," the husband claimed. 1998, the Supreme Court's historic judgement

Ram Narayan Gupta v. Sreelatha Rajeshwari Gupta, the judgement ruled that case of
schizophrenia, should be assessed on different levels7. This extended that just the fact that
someone is diagnosed with schizophrenic, would be considered as a mental disorder, but the
mere fact that someone is suffering would not allow their partner to file for divorce or
judicial separation. This case highlights that how the Indian Courts try to deviate away from
the stereotype created by the illnesses. They try to rely on objectivity rather than the mere
stigma attached.

Kaur H v. Gill BS, in this high court case, the wife had been mentally sick, but could have
been treated by hospitalization and continuous therapies and had a probability of recurrence
of health, hence divorce was not granted on the first instance 8. To prove that a person suffers
from mental disorders, there must be enough evidence which proves that the respondent in
fact suffering from a mental illness. In the supreme court judgment of Sharada v. Dharam
Paul, it ruled that the medical evidence though is an important part to prove the mental
disorder, it is not binding to stick to it9. Doctor opinion and the medical evidence can be
refused. This creates a wider hostage of the justice to the courts to validate the medicals
opinion and add their own interpretation to the case.

6 Smt. Hema Reddy v. Rakesh Reddy [2002] AP 228

7 Ramnarayan Gupta v. Sreemathi Rajeshwari Gupta [2003] (SC) 3450
8 Kaur H v. Gill BS [2003] 2 HLR 661
9 Sharada v. Dharampaul [2003] 4 SCC 493
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Parvathi Mishra v. Jagadhanantha Mishra, a supreme court judgement of 1994, held that the
“incurably” as applied in the section cannot be interpreted to cover people with tedious mind,
who are though able to perform the daily activities without having problems10.

3.2 RATIONALE OF DIVORCE BASED ON MENTAL ILLNESS IN INDIA: A

CRITICAL ANALYSIS
Despite these amendments and precedents, there seems to have still loopholes which are not
applied to the lower courts. Criticism to this act, many have pointed out that “incurably of
unsound mind”, is stereotyping the mental disorders. This creates a misconception that
mental illnesses are not curable. Due to medical advances many of the mental illness which
were not curable are detected and cured at an early age. Also, critics argue that none of the
physical illness are a reason for divorce or separation other than venereal illnesses. This
again stereotypes mental illnesses over physical illness. The “petitioner cannot reasonably be
expected to live with the respondent” creates another stereotype regarding mental disorders
about why a person cannot be expected to live with the other. The reasons for divorce
should be not a specific to mental illness it creates a stigma for people against the people
with mental disorders. People with mental illness according to criticism are denied the access
to right to marriage and get adequate right treatment for the stigma created.

It cannot be denied that in India, having a mental disorder is stigmatized, the victim is called
crazy, hallucinating or even retarded. This section should be amended for easy application
for even those, who are not well educated about mental illness and their effects. Even though
the courts have provided various precedents and explanations, there is no evidence about
much are these applied and used in the way which is intended.

For us to better understand the degree of complications people with mental disabilities face, it
is important to not only consider divorce laws for people with mental disabilities but also
annulment based on mental disabilities.

The various conditions which must be followed for having a solemnized marriage between
Hindus is discussed under Section 5 of the Hindu marriage Act, 1955 11. According to section
5 of the Hindu marriage Act all the conditions which are mentioned under this section must
be fulfilled for considering the marriage to be valid, if these conditions are not fulfilled, then
the marriage will be not consider as a valid under the eyes of the law 12. Conditions under

10 Parvathi Mishra v. Jagadhanantha Mishra [1994] 78 CLT 561

11 The Hindu Marriage Act 1955, s. 5
12 ibid
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section 5 include different parameters for the marriage to be considered valid. When a party
has a surviving spouse, the marriage between those two parties is declared null and void.
Then, if either party marrying does not meet the minimum respective age bar of 21 for men
and 18 for women, again the marriage is termed null 13. These conditions come under some of
the subsections of section 5 of Hindu Marriage Act, 1955. The subsection we will be
discussing in detail is subsection 5 (ii) of the Hindu Marriage Act, which deals with mental
health as a ground for nullification of marriage14.

Paragraph 5(ii) is now broken into three sections itself. Under this rule, marriage shall be
regarded illegal if one party is unable to provide valid consent in an unsound mind or if he is
able to provide valid consent, to the degree that the person is unsuitable for or ultimately
subjected to marriage and child reproduction.

The rationale given by the proponents of this law, which basically imply as to why marriage
between people who are of unsound mind or going through any mental health issue should be
nullified, is that it is believed by them that the individual may be unable to give consent for
the marriage15. Consent, according to them, is an integral part of any marriage, and if the
person is incapable of giving consent, then it is likely that they will not understand the
obligations of a marital relationship. They also argue that the stress of new relationship may
further worsen the situation for people suffering through mental illness. The overall concern
is that mental health issues may be a major cause behind marital disharmony in the long run.

But these arguments by the proponents of laws prohibiting and nullifying marriage between
people who are of unsound mind or going through any mental health issue have certain flaws
and lack coherence with factual data to some degree. Siva Nambi and Siddharth Sarkar in
their work title, Mental Illness and Nullity of Marriage: Indian Perspective, which was
published in the Indian Journal of Psychological Medicine discuss how the rationale given
behind such laws are obsolete. They explain that degree of severity of the illness vary among
individuals and it must be acknowledged, that all persons with a psychiatric or psychological
illness do not have impairment in understanding and role functioning to the same extent.
They also argue whether isolating such individuals is a healthy option for them as people

13 ibid
14 The Hindu Marriage Act 1955, s. 5(ii)
15 Simon RW and Marcussen K, ‘Marital Transitions, Marital Beliefs, and Mental Health’ (1999) 40 Journal of
Health and Social Behavior
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suffering from certain mental illnesses may get their condition worsened because of the sense
of isolation that comes with taking away their right to marriage16.

3.3 SCOPE OF SECTION 5(II) OF HINDU MARRIAGE ACT

The provisions under section 5(ii) of Hindu Marriage Act in particular, are discriminatory
against persons with mental illness as they make mental illness the only form of disability
that can constitute a ground on which a marriage gets nullified 18. The use of the term, mental
disorder under this section is also a glaring intellectual flaw, as the word, disorder carries a
negative connotation for people who are suffering any mental illnesses. The substantial
stigma that is generally associated with people suffering mental illnesses, of them being
violent and dangerous to self and society and incapable of having harmonious marital life,
gets reinforced.

This portion further enhances the misunderstanding that mental illness results in infertility
and lower reproductive capability. Section 5(ii) of the Act reflects this, when there is great
reliance on children's reproduction to decide if they are considered appropriate for marriage.
Finally, patriarchal society as in India, the potential for gender-based misuse of these laws is
evident.

The discussion regarding the divorce and annulment based on mental health issues should
also be explored in context with different models of disability. Disability studies is an
academic and empirical discipline that investigates and speculates disability in terms of
socio-economic, political, and cultural variables. The scholars, activists and advocates of
disability rights movement develop conversations around two very different models, used for
understanding disability, the social and medical models of disability 17. Medical model of
disability is a model under which scholars consider disability an entirely physical occurrence.
Being labelled disabled under this model is termed negative and it can be changed to better if
the disability is cured and the person who has the disability is then termed ‘normal’. Under
the social model, disability is deemed a result of environmental, social, and attitudinal
factors. These are termed barriers that limit full involvement in society for people with

16 Nambi S and Sarkar S, ‘Mental Illness and Nullity of Marriage: Indian Perspective’ (2015) 37 Indian
Journal of Psychological Medicine 366 18 The Hindu Marriage Act 1955, s. 5(ii)
17 Nussbaum MC, ‘Capabilities and Disabilities: Justice for Mentally Disabled Citizens’ (2002) 30
Philosophical Topics 133
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impairments. Social model is promoted by many disability rights activists as this model
views disability as a difference, neither a good nor a bad trait18.

Medical care is viewed as the integral issue in the medical model of disability. In the political
realm, the principal response to these disabilities is that of modifying and reforming the policies
around health care19. Whereas in social model, the issue is termed both cultural and ideological
which requires individual as well as community scale social change. Under this model, equal
access to opportunities for people with impairments is regarded as a human rights issue and is a
major concern. The laws and policies made for people with mental illnesses have been mostly
dominated by the medical model of disability. One should not reject the benefits that this model
provides for the people who are suffering from mental disabilities as it can cure their condition.
But it does not investigate the issue from the realistic perspective as the viewpoint of disabled
people is ignored. A paternalistic approach towards solving the problem is also imposed under.
this model which focuses on care and in turn, justifies the institutionalisation and segregation
of people with mental disabilities. This leads to problems like restrictions on opportunities
for people and their right to make choices and control their own lives. This model emboldens
prejudices that are already present and leads to overall worsening of situation of people who
have mental health issues.

On the other hand, social model of disability talks about removal of attitudinal and
institutional barriers to improve the lives of disabled people. This gives the people who have
disabilities the same opportunities and upholds principle of equity. The main strength of this
model is that it places the onus upon the society and not on the individual alone. Therefore,
there is need to take social model of disability into consideration when formulating laws for
people with mental illnesses as this model takes wide range of factors in consideration when
discussing how to proceed with policies for people with disabilities. It also counters the
existing prejudices that are prevalent in our society for people who have mental illnesses.

Social disapproval and devaluation of families involving individuals with mental illness is a
supreme concern. This lingers true in regard “marriage, marital separation and divorce”.
Appalling mental illness expediates deliriums, delusions, hallucinations, disorganized speech,
mood extremes or maniac ensues disruption in individual conduct. Unlike somatic, Psychic
symptoms elucidates as socially disadvantageous. Cognitive to this, an individual may
express infirmity and incapacity to function satisfactorily to meet the obligations of marriage.
Thus, different legislations impose restrictions on the marriage of people going through
mental issues. However, in recent times with medical enhancement, patients get recovered
18 Terzi Lorella, ‘The Social Model of Disability: A Philosophical Critique’ (2004) 21 Journal of Applied
Philosophy 141
19 Scotch RK, ‘Models of Disability and the Americans with Disabilities Act’ (2000) 21 Berkeley Journal of
Employment and Labour Law 213
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but face problems of rejection by the hands of their spouses after marriage. HMA and SMA
enlists severe mental illness as a ground for divorce. Illnesses with valid marriages
concurrence as per the Acts, otherwise, becomes an excuse to take matrimonial disputes to
courts where cases continue for years. Women are in general worst sufferers. After reviewing
Epidemiological data which links marital status with illness, on scrutinizing ICMR and DST
(2000) study, it is held that the highest common distress is found among “housewives”, both
in urban and rural regions.

Often in comparison with West, Asian nations exhibit a widespread tendency to “stigmatize
and discriminate people with mental illness” especially among women. They observe
mentally ill people as threatening and aggressive, only to increase social distancing and leave
them in isolation. Besides, stigma underwent from family members is pervasive. Hence, there
is a pressing need to revise these obsolete laws which are proving to be undesirable by
patients and their families.

Apart from this, it was further noticed that in matrimonial disputes, mental illness is often
presented by one of the parties. However, it is either denied, unrecognized, or rejected by the
parties and the courts. Consequently, the concern towards illness and favouring its treatment
gets neglected and the entire situation gets aggravated. Either the “law prevents the initiation,
or it contributes to the breakdown of the marriage” of the mentally ill. Similarly, the
matrimonial rights of a person with insaneness have been attacked requisitely by the courts in
disqualifying the recognition for mental disorder. Among several divorce cases reported by
Amita Dhanda, she indicated that about one-third of such cases are asserted as a premise of
schizophrenia, which is followed by mild mental disorder/insanity/unsoundness.

Mentally ill lacks recognition before law in any life dimension, were formerly referred as
“nonpersons”. Owing to the mental healthcare system which functions within the
macroenvironment, supported by the Mental Health Act 1987 which even after amendment
still works as a custodial law. However, in 2007 ratification was provided by the government
for considering “United Nations Convention on the Rights of Persons with Disabilities”
which aimed at providing fastest negotiations of human rights and extended all categories of
rights even to persons with disabilities. UNCRPD expressed its yearning from viewing

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disabling people as “objects” of medical and societal protection towards viewing them as
“subjects” with rights, capable of maintaining and supervising these for themselves20.

Later India ratified Rights of PWD Act, 1995 in 2010 (received presidential accent Dec 2016) to
render it complaisant with UNCRPD. RPWD act principled for empowerment of incapacitated
people and meant to provide them individual autonomy. It presses special emphasis over non-
discrimination, effective participation, and acceptance in society in terms of equal accessibility,
possibility and impartiality among men and women 21. Whilst the PWD act is in place, it failed to
include the notion of “non-negotiable rights”. It was argued that the “disabled cannot claim the
accessibility feature as a matter of right”. The availability to these
rights reclined limited, to either drafting of different policies by the government, or setting
them as per “economic capacity and development” in the country.

Seeking of a new law is something which is necessitated by everyone also because, ever
since India rectified UNCRPD, it has become binding for the government to embrace Human
Rights approach in its entirety which further requires it to change all other laws such as rights
in the field of education, employment etc. It had been noticed that India fails to provide all
the 20 provisions of UNCRPD in its legislation. These include freedom from inhumanity and
aggressive treatment, freedom to express, right to access information, right to marry and have
children, freedom to be politically active. Recent provisions of Indian law even restrain
mentally ill to enter in-to contracts or to hold property rights.

In the case of Suchita Srivastava v. Chandigarh Administration 22, the victim was a patient in
Chandigarh and suffered a condition of delay mental development with a capacity of a 9-
yearold. She was living in the mental institute where they discovered that she got pregnant.
The high court of Punjab had ruled the termination of her pregnancy ruling that it was the
best outcome for the victim and the child. This decision was overturned, citing the MTA act,
which states that women with delayed mental growth have an autonomy over their bodies.
Applying the UN-CRPD that mentally delayed growth people would have the same rights as
a person without stunted growth, the court ruled that, when she consents to the pregnancy, it
cannot be taken otherwise. While the women who has a mental age of a 9-year-old, can have
a child, and not terminate her pregnancy, on the other hand a person with mental health
problem is not allowed. A person with depression, or a bipolar disability or suffering from

20 United Nations, ‘Convention on the Rights of Persons with Disabilities (CRPD)’ (Department of
Economic and Social Affairs disability)
21 Legislative Department, ‘The Rights of Persons with Disabilities Act, 2016’ (Ministry of Law and Justice,
GOI) < http://legislative.gov.in/actsofparliamentfromtheyear/rights-persons-disabilities-act-2016 >
22 Suchita Srivastava v. Chandigarh Administration [2009] 14 SCR 989
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schizophrenia is not allowed to procreate and stay married and is a reason for divorce under
the section 13(1)(iii) of the Hindu Marriage Act23.

3.4 PROBLEMS FACED BY WOMENS BY LAWS ON DIVORCE BASED ON

MENTAL ILLNESS

Women with disability still lacks de-jure and de-facto equality even after ratifying several
conventions where, equal recognition before law remain central to all. Obligation for the
government is also indicated under CEDAW, to deem “null and void” any or all the “existing
contracts and private instruments having an effect of restricting the legal capacity of
women”24. Problems do surface by dint of disability resulting from mental illness in women
leading social stigma during solemnization of their marriages. To facilitate such observances,
families try to conceal preceding history of illness from the prospective party and at times
proposes handsome.

of dowry, often setting up of arranged marriages is opted. Rejection and divorces become
common withing such marriages. This forms a “double-disorganization” (chronic illness and
personal devastation of marital separation) within society and makes women go through
social isolation.

Many married women with severe, chronic, disabling illness found themselves within a
“vicious circle placed between domestic brutality-illness-marriage”25. They may not be able
to function in accordance to meet up the family expectations and become sufferers of
domestic violence. This is the “Indian-Paradox”, which refers to a situation where substantial
number of women get divorced without any maintenance from the husband; and apparently
their parents are more concerned about the marriage and separation than by the mental
illness. In addition, another characteristic of 'large weddings' dominates atypically and certain
groups may tolerate them in society. Sometimes, without a legal divorce, husbands abandon
their wives, psychologically unfit and remarry. These weddings are held by legal "without"
by bigamy. The social acceptance of these marriages is ludicrous.

People believe that the first wife with mental illness is socially ostracized and thus incapable
to go for legal redressal. Secondly, in other situations, first wife also gets remarried, therefore
nobody can question the void marriage. Another fact of people being sympathetic towards

23 The Hindu Marriage Act 1955, s. 13(1)(iii)

24 The Women with Disabilities Network, Women with Disabilities in India, special chapter 1a
25 World Report on Violence and Health, ‘Violence by intimate partners’
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the husband believes by every chance that he was initially married with a sick woman under
fraud26.

Women suffering from mental illnesses are often married off to men who do not know about
the mental health issues their wives are suffering. This leads to so many problems for the
both the people, husband, and wife. For wife, the fact that her husband is unaware of her
complications can further alleviate her mental health issues and cause serious concerns. On
the other hand, for husband, as he is unaware of his wife’s mental health issues, he is unable
to understand her behaviour. Also, when the truth gets uncovered, husband and his family
generally file for fraud against the wife and her family which causes more turmoil. Such
practice of hiding mental health issues often elucidates another Indian conception, fear of
discovery of such issues. This is because such issues are termed unwanted when it comes to
finding suitable match marriage market.

The problems we analysed provides us with a clearer and more substantive picture of the
situation of law and policies for people suffering mental health issues in our country and
gives us a societal perspective on the same. Categorisation of all mental health issues as
disabilities and disorders without stating or pondering whether they are curable or not, is a
very harmful generalisation for people suffering those issues. Use of terms and phrases like
“recurrent attacks of insanity” and “inability to live normal life” in the legal framework and
statutes is derogatory and emboldens the existing stigmas present for people who suffer these
issues. This can be attributed to the general lack of awareness regarding mental health issues
present in our societies over the years.

CHAPTER 4; RECOMMENDATIONS OF THE STUDY

As far as reforms are concerned, we need to evaluate a few persons with mental health
problems to improve them. In our legal domain, we must eliminate degrading language and
terminology such as mental diseases.
Laws should be made to facilitate people who are suffering these problems to come out
without any fear of discrimination. Counselling is another helpful reform and method that
can be normalised. It has dual benefits as it can help both the partners. It will also increase
general awareness towards the issue, which is very important 27. Lowers courts should be
provided with uniform guidelines on things like what is to be accepted as adequate medical

26 Indira Sharma, C.B. Tripathi, Abhishek Pathak, ‘Social and Legal aspects of marriage in Women with
mental illness in India’ (2015) < https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4539877/ > accessed in July
2015.
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proof in cases of mental issues. Medical proof of mental illness, when it is being cited as a
ground for divorce or annulment should be mandatory. Gathering sizeable evidence base
regarding this topic should be advocated so that necessary amendments to current laws can
be facilitated. For instance, in case of Hindu Marriage Act, 1955, Section 13 and Section
5(ii) should be amended according to the current scenario, as they are often used in a gender-
discriminatory way and are also regressive considering the modern understanding we have
regarding mental illnesses and problems. Annulment laws should not be the reason which
discourages people from seeking medical help. These laws should also not be the reason
behind prohibition of marriage for people with these issues. Only when unsoundness of mind
is so severe that the person is incapable of performing basic marital obligations then such
laws should come into the fold and marriages should be nullified. History of mental health
issues should not be a bar for marriage or affect the lives of people who have them. This
should be made explicitly clear through a legislative provision.
Law is something which needs to evolve with time in consonance with change in
conceptions of morality and thinking. Considering this, we have tried to discuss certain laws
and reforms that are needed for the progress of society.

CHAPTER 5 CONCLUSION OF THE STUDY

The nullity of marriage law would not forbid the provision of mental health or the marriage
of persons with mental disorders. The law's aim is to avoid and nullify marriages where
insanity is severe enough to preclude the discharge of basic marital duties. A civil provision
that states that a history of mental illness should not be a deterrent to marriage is encouraged.
In view of the mental health stigma, the rejection of previous practise or treatment for mental
health should not be construed as the abolition of a tangible fact leading to the absence of
marriages.

27 Appelbaum PS, ‘Civil Mental Health Law: Its History and Its Future’ (1996) 20 Mental and Physical
Disability Law Reporter 599
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 Family law paper

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