This paper aims to give a holistic approach towards insanity as a ground for divorce.

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 Hindu marriages.

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 marriage.
• 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 with it.

Beginning from,
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 reproduction.

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[1], 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 Kumar[2], 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 divorce.

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 treatment.

In the case of Sharda v Dharmapal[3] , it was argued that making the wife undergo medical examination was in violation of article 21 of privacy and personal Liberty.

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[4], talks 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[5],

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[6] 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 respondent difficult.

In Hemali Bindesh Kelaiya v Bindesh Jayantilal Kelaiya[7], 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 mental illness.

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 ground.

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 burden.

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;

1. Firstly, their female status
2. Secondly the mental disorder
3. 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 inherent dignity.

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.

References:

• 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/
• Sathyanarayana Rao TS, Nambi S, Chandrashekhar H. Marriage, mental health and Indian legislation. Forensic Psychiatry: Clinical Practice Guidelines for Psychiatrists in India. Indian Psychiatric Society. 2009:113–28. [Google Scholar]
• Thara R, Srinivasan TN. Outcome of marriage in schizophrenia. Soc Psychiatry Psychiatr Epidemiol. 1997;32:416–20. [PubMed] [Google Scholar]
• Sharma I, Pandit B, Pathak A, Sharma R. Hinduism, marriage and mental illness. Indian J Psychiatry. 2013;55(Suppl 2):S243–9. [PMC free article] [PubMed] [Google Scholar]

End-Notes:

1. R. Lakshmi Narayan v. Santhi, (2001) 4 SCC 688
2. Om Prakash Jain v. Pushpa Jain, 2019 SCC OnLine Del 9709
3. Sharda v Dharmapal, AIR 2003 SC 3450
4. Narain gupta v smt Rameshwari gupta, 1988 AIR 2260, 1988 SCR Supl. (2) 913
5. Kollam Chandra Sekhar v. Kollam Padma Latha, (2014) 1 SCC 225
6. Tallam Suresh Babu v. T. Swetha Rani, 2018 SCC OnLine Hyd 4
7. Hemali Bindesh Kelaiya v. Bindesh Jayantilal Kelaiya, 2014 SCC OnLine Bom 89