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The soundness of ‘unsoundness’: Marriage, divorce, and mental disability in India

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Abstract

The article argues that family laws in India that allow nullity and divorce on grounds of ‘unsoundness of mind’ and ‘mental disorder’ discriminate against persons with mental disability and violate international law on rights of the disabled. Drawing from international human rights law, contemporary disability rights principles and models of disability, the article presents a critical overview of family law and judgements on nullity and divorce on grounds of ‘unsoundness of mind’ and ‘mental disorder’ and builds a case for removal of mental disability as a ground for annulment and divorce.

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Notes

  1. ‘Unsoundness’ is a term used only in law and has no equivalent in medical science.

  2. Standard Rules on the Equalization of Opportunities for Persons with Disabilities (adopted 20 December 1993) Resolution 48/96 annex (SREOPD) rule 9; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 23(2); Universal Declaration of Human Rights (entered into force 10 December 1948) 217 A (III) (UDHR) art 16.

  3. Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3 (CRPD).

  4. The term ‘person with disability’ or ‘person with mental/physical disability’ has been used throughout the article, as a way of putting the person before their impairment/disability.

  5. CRPD art 4.

  6. CRPD art 1.

  7. The article limits itself to the Medical Model of Disability and the Social Model of Disability. Theoretical developments in disability studies goes way beyond the two models discussed in this article.

  8. The Supreme Court of India and the state High Courts.

  9. ‘Recurrent attacks of epilepsy’ which was originally a disqualification for marriage and a ground for divorce was removed by the Marriage Laws (Amendment) Act, 1999 to reflect advances in treatment of epilepsy. Epilepsy is no longer regarded as an incurable mental illness.

  10. The word ‘spouse’ refers to ‘either person in a marriage’ and offers gender neutrality, has been used throughout the article.

  11. Andrew J Hogan, ‘Social and Medical Models of Disability and Mental Health: Evolution and Renewal’ (2019) 191(1) Canadian Medical Association Journal E16.

  12. Ibid.

  13. Ibid. E17. A disabled activist and lecturer, Oliver is also credited with coining the phrase ‘social model of disability’. Mike Oliver, ‘The Social Model of Disability: Thirty Years On’ (2013) 28(7) Disability & Society 1024. See Colin Barnes, ‘Understanding the Social Model of Disability’ in Nick Watson, Alan Roulstone and Carol Thomas (eds), Routledge Handbook of Disability Studies (Routledge 2012) 18.

  14. In this context, ‘normal’ is used to imply life without impairments.

  15. Mike Oliver, ‘The Social Model in Action: If I had a Hammer’ in Colin Barnes and Geof Mercer (eds), Implementing the Social Model of Disability (The Disability Press 2004) 30.

  16. Tom Shakespeare, ‘The Social Model of Disability’ in Lennard J Davis (ed), The Disability Studies Reader (Routledge 2017) 197–198.

  17. CRPD art 1.

  18. As of 2021, CRPD has been ratified by 182 States and 164 states have signed it while the Optional Protocol has 96 ratifications and 94 signatories. United Nations Department of Economic and Social Affairs Disability, ‘Convention on the Rights of Persons with Disabilities (CRPD)’. https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html. Accessed 22 March 2021.

  19. Michael L Perlin and Naomi M Weinstein, ‘“There’s Voices in the Night Trying to Be Heard”: The Potential Impact of the Convention on the Rights of Persons with Disabilities on Domestic Mental Disability Law’ (2019) 84(3) Brooklyn Law Review 873, 888.

  20. Gerard Quinn, ‘The United Nations Convention on The Rights of Persons with Disabilities: Toward A New International Politics of Disability’ (2009) 15 Texas Journal on Civil Liberties & Civil Rights 33, 41.

  21. CRPD art 1. See also World Health Organisation and The World Bank, ‘World Report on Disability: Summary’ (1 January 2011). https://www.who.int/disabilities/world_report/2011/accessible_en.pdf. Accessed 19 September 2021. This report highlights the fact that because services are not available to them in society, and attitudinal and environmental barriers exist, this adds to the problem of impairment. Interaction of impairment with attitudinal and environmental barriers impede persons with impairments to live a full and active life and are responsible for the disability experienced by people.

  22. Michael L Perlin, ‘Understanding the Intersection Between International Human Rights and Mental Disability Law’ in Bruce A Arigo and Heather Y Bersot (eds), The Routledge Handbook of International Crime and Justice Studies (Routledge 2014) 191.

  23. None of the equality clauses of any of the instruments of the Bill of Rights, i.e., the UDHR (1948), ICCPR (1976), International Covenant on Economic, Social, and Cultural Rights (ICESCR) (1966) mentioned disability rights as a protected category. See Theresia Degenere, ‘International Disability Law—A New Legal Subject on the Rise: The Interregional Experts’ Meeting in Hong Kong, December 13–17, 1999’ (2000) 18 Berkeley Journal of International Law 180, 187.

  24. Gundugurti Prasad Rao, Vemulokonda Sri Ramya, and Math Suresh Bada, ‘The Rights of Persons with Disability Bill, 2014: How “Enabling” is it for Persons with Mental Illness?’ (2016) 58(2) Indian Journal of Psychiatry 121, 122.

  25. Ibid.

  26. Eric Rosenthal, ‘The Application of International Human Rights Law to Institutional Mental Disability Law’ (2002) 21(3) NYLS Journal of International and Comparative Law 387, 391.

  27. Michael L Perlin, ‘International Human Rights and Comparative Mental Disability Law: The Role of Institutional Psychiatry in the Suppression of Political Dissent’ (2006) 39(3) Israel Law Review 69, 73.

  28. Ibid. 74.

  29. Ibid.

  30. Ibid.

  31. The Hindu Marriage Act 1955, Act No. 25 of 1955, ss 5, 13.

  32. The Special Marriage Act 1954, Act No. 43 of 1954, ss 4, 27.

  33. Hindu Marriage Act 1955 s 5; Special Marriage Act 1954 s 4.

  34. Hindu Marriage Act 1955 s 12(a)(i), (ii). Petitions for divorce on the ground of mental disorder under Section 13(1)(iii) of the HMA cannot be filed within one year but can be filed only after one year of the marriage in accordance with Section 14(1) of the HMA.

  35. Hindu Marriage Act s 5(ii)(a), (b), (c).

  36. Special Marriage Act s 4(b).

  37. Hindu Marriage Act s 12(c)(i). There is a statute of limitation on petitioning for annulment under HMA and SMA on grounds of fraud. The petition can only be made within a year after ‘fraud’ has been discovered or the fact that party was forced into the marriage has been discovered.

  38. Hindu Marriage Act s 12(c); Special Marriage Act s 25.

  39. The Divorce Act 1869, Act No. 4 of 1869. Applicable to Indian Christians.

  40. Divorce Act s 19(3).

  41. The Parsi Marriage and Divorce Act 1936, Act No. 3 of 1936.

  42. The Parsi Marriage and Divorce (Amendment) Act 1988, Act No. 5 of 1988.

  43. ICCPR art 23(2). The right of men and women of marriageable age to marry and found a family shall be recognized; UDHR art 16.

  44. In the context of valid consent, the law uses the phrase ‘unsoundness of mind’ and not ‘mental disorder’. The law and judgements do not appear to distinguish between the two. While considerable attention is paid to understanding the nature and of the disorder, whether the mental health condition falls under ‘unsoundness of mind’ or ‘mental disorder’ is not discussed in any judgement. Typically, courts will refer to the disease/illness with the medical term referred to in the averments made in a case, for example, schizophrenia, dementia etc. The discussion is focused more on the impact of the illness. In the context of nullity and divorce, judgements provide no further guidance on a distinction, if any between the two phrases.

  45. Alka Sharma v Abhinesh Chandra Sharma AIR 1991 MP 205 [22].

  46. Indira Sharma, C B Tripathi, and Abhishek Pathak, ‘Social and Legal Aspects of Marriage in Women with Mental Illness in India’ (2015) 57 Indian Journal of Psychiatry 324, 328.

  47. Alka Sharma v Abhinesh Chandra Sharma (n 45) [37].

  48. Alka Sharma v Abhinesh Chandra Sharma (n 45) [24].

  49. Asha Srivastava v R K Srivastava AIR 1981 Del 253.

  50. Ibid.

  51. Mental Health Care Act 2017, Act No. 10 of 2017 s 3(4).

  52. Alka Sharma v Abhinesh Chandra Sharma (n 45) [12].

  53. In this case it was alleged that the wife had schizophrenia.

  54. Alka Sharma v Abhinesh Chandra Sharma (n 45) [12].

  55. Ibid.

  56. Ibid. [27].

  57. Ibid. [29].

  58. While marriage is not the only way to ‘found a family’ it is the most common.

  59. ICCPR art 23(2). ‘The right of men and women of marriageable age to marry and found a family shall be recognized’; UDHR art 16.

  60. The report was jointly written by the National Disability Network (NDN) and National Committee on the Rights of Persons with Disability (NCPRD), submitted on 31 March 2017. National Disability Network and National Committee on the Rights of Persons with Disabilities, Parallel Report of India on the Convention on the Rights of Persons with Disabilities (CRPD) (31 March 2017) [1].

  61. CRPD art 23(1).

  62. The expression ‘fault’ is not used by the law. Although colloquially the divorce grounds are sometimes referred to as ‘fault-based’, the law does not require fault.

  63. Munish Kakkar v Nidhi Kakkar MANU/SC/1753/2019 [19]. By a decision dated 17 December 2019, the Supreme Court of India dissolved a marriage by exercising its inherent powers under Article 142 of the Constitution, even as it recognised that there is no statutory law for recognising ‘irretrievable breakdown of marriage’ as a ground for divorce in India.

  64. Hindu Marriage Act s 13(1)(iii); Special Marriage Act s 27(1)(e). Provisions under both are identical. It must be noted that under the PMDA there is a condition that the mental illness must continue for 2 years prior to filing for divorce.

  65. Ibid. It must be noted that the grounds for ‘judicial separation’ are the same as those for divorce.

  66. Parsi Marriage and Divorce Act s 32.

  67. Parsi Marriage and Divorce Act s 32(bb) added by the Parsi Marriage and Divorce (Amendment) Act 1988. Section 10 of The Divorce Act 1869 has identical provisions which require that mental disability or unsoundness of mind should have existed for at least two years before filing of petition on this ground.

  68. Hindu Marriage Act s 13(1)(iii); Special Marriage Act s 27(1)(e).

  69. CRPD art 5.

  70. Malavika Rajkotia, Intimacy Undone, Marriage, Divorce and Family Law in India (Speaking Tiger Books 2017) 120.

  71. Ibid.

  72. Ibid.

  73. Ram Narain Gupta v Rameshwari Gupta AIR 1988 SC 2260 [10].

  74. Ibid. [9].

  75. Ibid. [11].

  76. Ibid. [11] (emphasis added).

  77. Ibid. [15].

  78. The original provision was ‘neither party is an idiot or a lunatic’ which was changed to the present provision by Marriage Law (Amendment) Act 1976. ‘Recurrent attacks of epilepsy’ which was originally a disqualification for marriage and a ground for divorce was removed by the Marriage Laws (Amendment) Act 1999.

  79. The reference to ‘abnormally aggressive or seriously irresponsible conduct on the part of the other party’ springs from prejudicial attitudes that attribute mental illness with violent and inappropriate behaviour that encourages fear towards persons with mental disability.

  80. Ram Narain Gupta v Rameshwari Gupta (n 73) [15].

  81. Ibid. [14].

  82. Vinita Saxena v Pankaj Pandit AIR 2006 SC 1662.

  83. All but one case out of the High Courts and Supreme Court judgements examined for this article had originally been filed by the husband.

  84. The second-largest metropolitan city in the state of Maharashtra and the eighth most populous city in India.

  85. Soumitra Pathare et al., ‘Gender, Mental Illness and the Hindu Marriage Act, 1955’ (2015) 12(1) Indian Journal of Medical Ethics 7, 9.

  86. Magistrate Courts and Family Courts.

  87. 11(14%) of the 78 judgments at the Pune Family Court were made under ex parte conditions. Pathare et al., ‘Gender, Mental Illness and the Hindu Marriage Act, 1955’ (n 85) 12.

  88. Darshan Gupta v Radhika Gupta (2013) 9 SCC 1.

  89. Ibid. [34].

  90. Ibid. [37].

  91. Ibid. [42].

  92. Dnyaneshwar v Swati AIR 2018 Bom 28 [2] (emphasis added).

  93. CRPD art 4.

  94. Kollam Chandra Sekhar v Kollam Padma Latha (2014) 1 SCC 225 [23].

  95. Rena Scheffer, Addressing Stigma: Increasing Public Understanding of Mental Illness. https://www.yumpu.com/en/document/view/37849918/addressing-stigma-increasing-public-understanding-of-mental-illness. Accessed 20 September 2021.

  96. Ibid. 4.

  97. Committee on the Rights of Persons with Disability, General Comment No. 3 (2016) on Women and Girls with Disabilities (CRPD/C/GC/3, 2016) [17(b)].

  98. Carol Sanger, ‘Decisional Dignity: Teenage Abortion, Bypass Hearings, and the Misuse of Law’ (2009) 18(2) Columbia Journal of Gender and Law 409, 415.

  99. Wesley Cragg and Christine Koggel (eds), Contemporary Moral Issues (McGraw-Hill Ryerson 2005) 236–305.

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    Pinki Mathur Anurag

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Anurag, P.M. The soundness of ‘unsoundness’: Marriage, divorce, and mental disability in India. Jindal Global Law Review 12, 293–309 (2021). https://doi.org/10.1007/s41020-021-00154-5

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