Social and legal aspects of marriage in women with mental illness in India

Abstract

The institution of marriage in Hindus is regulated by the prevailing social norms and the Hindu Marriage Act (HMA), 1955. Married women with mental illness are heavily discriminated. This paper examines the social and legal aspects of Hindu marriage in women with mental illness. The HMA, 1955 lays down the conditions for a Hindu marriage and also provides matrimonial reliefs: Nullity of marriage, restitution of conjugal rights, judicial separation and divorce. The application of the provisions of HMA in the setting mental illness is difficult and challenging. There is a wide gap between the legislative provisions of HMA, and societal value systems and attitudes towards marriage in Indian society. Societal norms are powerful and often override the legal provisions. The disparities are most glaring in the setting of mental illness in women. This is a reflection of social stigma for mental illness and patriarchal attitude towards women. Concerted efforts are needed to bridge the gap between the legislative provisions of HMA and societal value systems and attitudes toward marriage. Awareness programs regarding the nature and types of mental illness, advances in treatment and information about good outcome of severe mental illness will be helpful. Improvement in moral and religious values will overcome to some extent the negative attitudes and patriarchal mind set toward married women with mental illness.

INTRODUCTION

Both society and law deal with human behavior. Society provides guidelines and rules for behavior and imposes punishment if the same are violated. When society fails in implementing the rules, it adopts stringent measures; enacts laws. Legislations also provides the basic guidelines/code of conduct for acceptable behavior and punishment for violating the prescribed code of conduct. Legislation imparts justice by punishing the guilty and providing various reliefs to victims. Once legislation is enacted, it is sent back to the community for implementation. It is supposed to be followed by all people, including those who had been violating society's prescribed code of conduct. Thus, the law can only be effective if the society accepts it and takes firm measures for its implementation.

Marriage is socially supported union between the individuals in what is a intended to be a stable and enduring relationship. It has been variously defined by sociologists and psychiatrists.[1] Hindus consider marriage as a sacrosanct union between a man and woman. In India, the duties of the husband and wife in a marriage are prescribed by society. Even though marriage is a socio-religious event, The Hindu Marriage Act (HMA)[2] has been enacted to regulate the institution of marriage. Four matrimonial reliefs are now available in the HMA. Now, in addition to social customs and values, a legal instrument is available to regulate the marriage of Hindus in Indian society. Several questions need to be answered. To what extent the societal norms and legal provisions of HMA relating to marriage concur? Has the situation with respect to marriage and mental health of married people (especially women), and society at large, improved with the introduction of the HMA? Is there a need to amend certain provisions of the HMA? This study examines the social and legal aspects of Hindu marriage in women with mental illness. The term of reference for the legal aspects is the HMA.[2]

CONCEPT OF MARRIAGE

Socio-religious concept of marriage

No other community has idealized the institution of marriage as the Hindus. Marriage has been considered a sacramental union since the Rig Vedic period and has continued to be so in the entire Hindu period. Marriage is obligatory for begetting a son, for discharging his debt to ancestors and for performing religious and spiritual duties. Marriage takes place by the performance of sacred rites and ceremonies. The sacramental union also implies eternal union; once tied cannot be untied. According to Manu, husband and wife are united to each other not merely in this life, but even after death, in the other world. A passage from Manu Smriti[3] says “I hold your hand for Saubhagya (good luck) that you may grow old with your husband, you are given to me by the just, the creator, the wise and the learned people.”[3] Marriage is one of the essential Sanskars for every Hindus. Every Hindus must marry. “To be mothers were women created and to be fathers men.”[3] The Veda ordains that Dharma (religion) must be practiced by a man together with his wife.[3] “He is only a perfect man who consists of his wife, himself and the offspring”.[4]

Even in modern society the concept of marriage has not changed much. Parents consider it their responsibility to marry their children. Marriages are most often arranged by parents even in educated and high social status families. Everyone must marry. Nonsolemnisation of marriage, marital discord, separation or widowhood, for whatever reason, are social stigmas. Marriage is once in a lifetime event. Thus, marriage is celebrated in a big way by families pouring it their lives’ savings. Illness (including mental illness) in the offspring does not deter parents from meeting this obligation. Though, in modern times, separation, divorce, and remarriages are not uncommon, marriage is still perceived by the vast majority of people as a permanent union.

The prescription for marriage is more stringent for women. Girls are going to higher education and professional jobs so as for improve their prospects for marriage. For most women, marriage is essential as it provides economic support, social dignity, and security. After marriage, the wife lives in her matrimonial home (home of husband). She is expected to respectful and submissive towards her husband and his relatives and accept the prevailing norms. She must never return to the parental home; she visits her parental home only as a guest.

The HMA, 1955[2] is an Act to amend and codify the law relating to marriage among Hindus. HMA does not recognize marriage as a fundamental right for all Hindus. There some restrictions on marriage in the presence of mental illness, HMA enlists the conditions for a Hindu marriage and provides various matrimonial reliefs such as restitution of conjugal rights, nullity of marriage, judicial separation, and divorce. Now, to a great extent marriage has become a contract and its sanctity, as a socio-religious institution, has been eroded. It is also evident that the lawmakers were acutely aware that such an Act would have little utility if social values and customs, e.g., child marriages, are ignored. Thus, even though child marriages are prohibited,[2] they do not become void until there are a petitions in courts to challenge them. For the purpose of facilitating the proof of Hindu marriages, there is provision for registration. However, despite the existence of the HMA for almost six decades most Hindu marriages in India remain unregistered. A social marriage is enough; no proof is required.

CONDITIONS FOR A HINDU MARRIAGE

• A Hindu marriage, legal[2] as well as social marriage, may be solemnized between any two Hindus in accordance with the customary rites and ceremonies of either party thereto. However, in a broad sense, in Indian Society a marriage (social marriage) is solemnized not only between two individuals but also between two families; although this is changing. Religion, caste, sub-caste, education, occupation, socioeconomic status, and demographic profile of families of the two parties, and horoscope matching are important considerations. Dowry is an indispensable part of many marriages. Some families may insist on having teetotaler son-in-laws.

• The HMA, 1955, Section 5, clause (i)[2] states that neither party has a spouse living at the time of the marriage. For a social marriage, also, there is a similar guideline and most Hindu marriages in India are either first marriages or remarriage after the death of a previous spouse. However, remarriages of men with a living wife at the time of marriage are also not uncommon especially in rural areas; the common reasons being not able to bear a child, or a male child; or mental illness in the spouse. These marriages are accepted by the communities.

  Remarriage of spouses of persons with mental illness is common, often without obtaining a divorce from the sick partner. In a study[5] from Chennai on mentally disabled, of the 75 mentally ill women separated from their husbands, legal separation occurred only in 16 instances. In another study[6] on 118 married women with mental illness who presented for outpatient treatment at the University Hospital, Varanasi, 6 (5.8%) of the women had second marriages, and the previous spouse was illegally married at the time of remarriage of these six women. Presumably the first marriage broke because of mental illness in the women. It is interesting to note that wheras the men remarried because they did not want to put up with a mentally sick wife; the women, who were deserted by their husbands because of mental illness, remarried because of parental pressure and belief that marriage is essential

• HMA, 1955, Section 5, clause (ii)(a)[2] states that at the time of marriage, “neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind.” The unsoundness of mind should be such which incapacitates a person from giving a valid consent to marriage. It may exist just before marriage.[7] The Privy council held in the Lai and Chandrabati[8] case that if a person understands the nature of marital relations, he would be deemed to be mentally sound for marriage. It needs not be persistent or continuous “unsoundness of mind.” It has been judicially held that for the purpose of marriage mental soundness is a question of degrees. Thus, it is not necessary that the person must be quite intelligent. A weak or feeble mind may not be unsound for marriage.[9] Thus from the legal standpoint only severe mental illness at the time of the solemnization of marriage would incapacitate a person from giving a valid consent to marriage.

The court recognizes that consent in a Hindu marriage is over an extended period. In the Anath Nath v. Lajjabati Devi Case[10] it was held that there are two stages of consent. Invalid consent at the second stage is material and renders the marriage voidable.

Most Hindu marriages are arranged by families and consent is by the guardians, rather than the marriage partners. Besides, the negotiations are in an informal setting (with no provision for formal consent or for assessment of the capacity to give consent). Apart from this, consent has limited significance in a Hindu marriage because it is solemnized by the customary religious rites and ceremonies, which means that it is endorsed by God.

From the psychiatrists viewpoint, only certain types of mental illness (e.g., psychosis or mental retardation) may impair the capacity to give a valid consent to marriage. However, even if one party has a psychosis, it would most likely not be severe for an extended period. If severe, it would be detected by the other party, who would not consent to marriage. In the study[11] from Varanasi on married women with mental illness, 48% of the women were on psychotropic medication or had mild psychiatric symptoms or side effects, suggesting mental illness at the time of marriage. Five couples out 118 had the presence of significant psychotic symptoms at the time of marriage. It is possible that the illness impaired the capacity to give valid consent. However, as both parties had consented the issue of capacity to give valid consent was inconsequential.

Thus, in the vast majority of Hindu marriages, even when one or both parties have a mental illness at the time of marriage, this clause would have little pragmatic significance. The burden of proof of mental illness would be on the petitioner which is most difficult. The only exception could be when the person shows clear evidence of disorganized behavior at the time of marriage, loose lose his mental balance and not understand the significance of marriage ceremonies being performed. The other party can then take the issue up for nullity.

• HMA, 1955, clause (ii)(b)(c)[2] states that at the time of the marriage, neither party has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children or has been subject to recurrent attacks of insanity. In the clause “has been suffering” requires that the mental disorder should have some duration. “Unfit for marriage” means unfit to carry out the obligations of marriage as per social norms. Unfit for “the procreation of children” means the ability to beget children. Both must be present. “Recurrent attacks of insanity” makes a person unfit for marriage. Mere mental weakness, foolishness, craziness, boorishness, idiosyncrasy, excessive sentimentality, and imbecility are not covered.[7] The mental disorder should be of such a kind or to such an extent that it is impossible to for him/her to lead a normal married life. Furthermore, the unfitness for marriage and procreation of children contemplated here is one that arises out of the mental disorder only; not because of other disorder[12]

  The Supreme Court held in the case of Narayan and Santhi[12] that mental disorder requires a strict standard of proof. The mere finding that the respondent wife was suffering from some form of mental disorder and she did not have cohabitation with the husband during the stay of about 25 days together is not sufficient.[13] Similarly, the appellant (husband) pleaded that as the wife was suffering from schizophrenia at the time of marriage, marriage was voidable. However, the court refused to grant a decree of nullity because he had a daughter born from that wife, which meant that the mental disorder of the wife was not of such a kind, or to such an extent, as to make her unfit for marriage and procreation of children.[14] For the grant of the relief, the mental disorder must be proved to have existed at the time of marriage.[15] For this satisfactory expert opinion must be produced before the court.[16]

Thus, there should be a severe, recurrent, and disabling mental illness in either of the parties at the time of marriage. The burden of proof of mental disorder would be on the petitioner.

These provisions have the following limitations:

• Most people without a mental illness and their families consider mental illness as a disqualification for marriage and would not consent to marriage if told directly about the presence of mental illness in the other party. This is more because of the social stigma than the illness per se. There is little awareness in people about the types of mental illness, treatment, and prognosis of different types of mental illness

• The vast majority of persons with mental illness and their families believe marriage is a fundamental right of every person and it is the duty of parents to marry their children. The presence of mental illness does not deter them from meeting this objective. They take all possible measures to achieve their ends. Besides, marriage is thought to be a cure for mental illness, especially in women[5]

• The vast majority of persons believe that every must marry, but more so women, because this is the only available support in adulthood.

• Patriarchal attitudes determine the widely prevalent dual standards in Indian Society. Most people believe that their sons should not marry a woman with mental illness, though the marriage of a son with mental illness to a healthy woman is okay for them. This is evident by the fact more male patients continued to remain married with their female spouses often taking on the wage-earning role.[5]

• Many chronic recurrent mental illnesses such schizophrenia and affective disorder are now treatable with none or minimal residual symptoms and disability. Thus clause (b) is outdated and not in keeping with the scientific advancements.

• It is very difficult to prove mental illness in the recovery phase as there is wide variation in normal behavior.

• Most parents are acutely aware of the problems (social stigma, behavioral aberrations, and disability) that mental illness could pose in the solemnization of marriage. To overcome them, the person with mental illness is treated promptly and marriage is arranged. In the vast majority of cases, the history of mental illness and treatment is concealed from the other party at the time of the solemnization of marriage.[11] Parents hope and pray that that all would be well after marriage

• Most marriages in India are arranged. “No dowry” for marriage to a man with mental illness and “good dowry” for marriage with a woman with mental illness often facilitates the marriage negotiations. Besides, glamourising the marriage proposal by offering a handsome dowry distracts the other party from the deficiencies in the women with mental illness

• Studies from India have shown that more women with mental illness get married compared to men with mental illness.[5] This may be due to the fact that the social requirement for marriage is that men should be wage earners.

• In conclusion, it can be said that even though the HMA, 1955 puts some restrictions on persons with mental illness, most persons with mental illness (except those with severe illness) get married. Even when one party has a mental illness, it usually goes undetected, and the marriage ceremonies are completed smoothly.

NULLITY OF MARRIAGE

Void marriages

Under section 11 of HMA, 1955, marriage is void if at the time of marriage either party has a spouse living. However, where marriage is void because the man has taken a second wife the first wife, cannot petition under Section 11, only the second wife can petition.[17] The petition can only be filed by either party to void marriage.[18] Where the husband had married again, without obtaining a decree of divorce, because his first wife had abandoned him and was living with another man, such a marriage would be void. Decree of divorce from a competent court is essential.[19] Likewise, where the wife could not prove the custom of divorce by the intervention of a respectable member of the community, the second marriage would be void.[20] Even if a woman comes to know that her husband is going for a second marriage, there is no provision in the HMA to obtain an injunction restraining him from doing so.

Bigamous marriages are not uncommon and may have social acceptance in certain communities. Many husbands abandon their mentally sick wives and remarry without taking divorce (legal). These marriages though “void” get social acceptance because (1) The first wife with mental illness is helpless and socially ostracized, so does not go for legal redress, (2) the first wife also get remarried, so there is often no one to challenge the second marriage, and (3) people have sympathetic attitude toward the husband who in all probability was married by fraud to a mentally sick women. Remarriage of women with mental illness, abandoned by her husbands, also take place sometimes, without obtaining a decree of divorce from the previous marriage.

Voidable marriages

HMA, 1955, Section 12 (1), states that marriages may be annulled by a decree of nullity on the following grounds:

• Unsoundness of mind (is in contravention in clause (ii) of Section (5))

• Consent of the petitioner was obtained by force or by fraud.

Unsoundness of mind

The HMA specifically bars persons with severe, disabling, and recurrent mental illness from marriage, as the illness would make the person unfit for marriage and procreation of children. It also mentions that the person should lack the capacity to give valid consent in consequence of mental illness. However, a marriage in contravention of the norm is only voidable, and that too at the instance of the other party, who would have to file a petition for nullity and the onus of proving the mental illness is on the other party. Interestingly, even though “unsoundness of mind” which incapacitates a person from giving a valid consent to marriage will render the marriage voidable, nonconsent will not render the marriage void or voidable.[7]

Consent by fraud

HMA, 1955, Section 5 clause (i)(c) states that the marriage is voidable on the ground that the consent of the petitioner was obtained by force or by fraud as to nature of the ceremony or any material fact or circumstance concerning the respondent. Force vitiating consent implies not mere use of physical force, but also threat to use force. The chief element of fraud is deceit. The material facts and circumstances that would induce or influence the mind of the party to give or withhold consent to marry are relevant.[21] Therefore, a mere false statement is not fraud. Likewise, each and every concealment or misrepresentation is not fraud. Thus, mere concealment of the fact that the husband has been married to another woman could not be a ground for annulment of marriage under Section 12.[2]

The doctrine of caveat emptor states that it is not the duty of the parties intending to marry that should themselves come forward to speak of their virtues and vices. If the party is interested in a particular quality of the other party, he should make specific enquiries. On inquiry if wrong information is given, or some abuse of confidential position, or some deliberate concealment of material fact is made, it is to be reckoned as a fraud.[13,22] Furthermore, if nothing is concealed on enquiry, but the petitioner himself fails to verify all the facts due to his own carelessness or lethargy or difficulties, then it is not fraud. In the case Dastanae and Dastane,[23] the bridegroom and had been told that due to a heat stroke the mental condition of the bride was adversely affected and she was treated in a mental hospital and that they could themselves enquire about it from there. The bridegroom failed to make complete enquiries about the case. Thus, it was held that there was no fraud.

Where a party is suffering from a disease that affects the very basis of marriage, it would amount to fraud, e.g., the spouse is HIV+.[2] Where the wife is suffering from attacks of insanity, and even reception could not be held, the decree annulling the marriage was allowed.[24] In a few early cases, even concealment of disease of consumption[10] and epilepsy since birth[25] were not held as a fraud. It is also held that concealment of any disease does not invalidate the marriage.[10] Thus concealment of tuberculosis,[25] curable defect in the eyes[26] and nondisclosure of contact lens[22] did not amount to fraud. Concealment of epilepsy,[27] or schizophrenia,[28] is fraud.

Fraud practiced at the first stage (time of engagement) does not render the marriage voidable. It is fraud at the second stage (solemnization of marriage), which is material and renders the marriage voidable. Later, however, in an amendment in 1976 it was clarified that fraud covers both the stages,[29] but such fraud should continue till solemnisation of marriage.[30] Besides, where fraud is alleged, every content of fraud and how it is practiced on the plaintiff has to be proved. In addition, he also has to prove that he has been influenced by the fraud;[31] the evidence must not appear unnatural and untrustworthy.[32]

Certain points deserve mention:

• There is no formal procedure for taking consent and in most cases it is proxy consent by the parents.

• In the vast majority of cases the fact of mental illness, past or present, though of great significance for the consenting partner, is deliberately hidden from the other party at the time of the solemnization of marriage. Side by side, all efforts are made to ensure that ceremonies are preformed smoothly. Thus, “fraud” is generally a nonissue before marriage.

• Women with mental illness are often coerced to consent to marriage. Also, fraud is often played within the family when the parent may tell the child that the other party has been informed about her illness when this was not done.

• After marriage when the truth about mental illness is discovered “fraud” becomes a big issue. There are allegations of cheating and fraud by the healthy spouse. The spouse with mental illness and the family generally deny the allegation. They may allege demand for more dowry and/or cruelty or stress as the cause of abnormal behavior. Women generally reconcile to the “fraud,” while men do not and convey their clear intent to abandon the women with mental illness.

• Concealment of the history of mental illness at the time of the solemnization of marriage is a very sensitive matter. Whether it should taken as fraud is controversial considering the loopholes in the legal definition of fraud.

  Many marriages are broken much before any case is filed in the court for the annulment of marriage.

• Many people believe that concealment of the history of mental illness is most justified because without doing so, it would not be possible to get the child married. It does not amount to fraud because the negative mindset for marrying a person with mental illness is because of the social stigma of mental illness, rather than for mental illness per se.

• The past President of Indian Psychiatric Society Nambi suggested[1] that an express legislative provision should be incorporated which states that a past history of mental illness will be no bar to marriage; failure to disclose such past history or the fact of treatment would not amount to suppression of a material fact.

CONJUGAL RIGHTS

This is the only positive relief in HMA at preserving the marriage, In the very institution of marriage husband and wife have both a right and duty to the society – comfort consortium of each other.[13,33] When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition for restitution of conjugal rights and the court may decree restitution of conjugal rights. The party, who himself or herself, forsakes, his or her spouse, cannot ask for the relief of restitution of conjugal rights.[34] The right course open is to go and live with the other party. Husband did not come to fetch his wife is not a reasonable excuse.[35] Where the husband throws out or leaves his wife, even if his wife is guilty of a matrimonial offence (e.g., adultery), it cannot be said that she has withdrawn from the society of the husband.[13] Matrimonial home means the place where both husband and wife share the society of each other as life-partners. The burden of proving the reasonable excuse is on the withdrawing spouse.[2]

In view of the various cases cited above it can be appreciated that the application of the HMA for restitution of conjugal rights may be difficult and challenging. Some observations are mentioned below:

• Studies[5] have shown that more women, compared to men, accept spouse with mental illness. However, more women with mental illness are deserted, abandoned, separated or divorced by their husbands

• After marriage when the husband comes to know about mental illness in the wife, he calls her parents, conveys his resentment and asks them to take away their sick daughter. The parents agree to the suggestion, often unwillingly, and take their daughter to the parental home for treatment. There is then the period of partial desertion in which there is a conflict of interests. The husband neglects the wife because he wants to abandon her, while the wife and her parents make all efforts to return to the matrimonial home. Thus, the parents want to send her back permission for returning to the matrimonial home is either not granted/delayed on one pretext of the other by the husband. Sometimes the wife is called back by the husband, but only to be sent back again. During her stay in the matrimonial home, she faces ill treatment from husband and in-laws[5] and domestic violence. This may happen a few times. It is intriguing that neither the women nor her parents, want separation or divorce; rather their major concern is a restitution of conjugal rights. This has been aptly described as the Indian paradox.[6] With time, the stay at husband's home decreases and that at parents place increases until the final day comes when the woman are abandoned permanently

• Many a times allegations are made of cruelty, domestic violence, and demand for dowry from the woman's side against the husband and his relatives, who may be implicated under the various legislations, 498 A IPC (of cruelty by husband and relatives of husband); the Protection of Woman from Domestic Violence Act, 2005; and Dowry Prohibition Act etc., and complaints filed with the police, National Commission of Women and courts. This is despite the fact the allegations, even if true, are nonissues. The main issue is a restitution of conjugal rights. While the husband's side considers such behavior as an abuse of legislative provisions for vengeance against husband and his family, parents of the women justify their behavior. In a parent's words “Hamane to jeevan ki kamai laga di ladki ki shadi mein. Jitna manga utna diya, jo nahin manga wo bhi diya, aur bhi de sakte hain. Usne socha bhi kaise shadi jaise pavitra bandhan ko torne ki. Kuch bhi karenge shadi bachane ke liye. Ladki ke jeewan ka sawal hai” (“We have spent our life's savings on our daughter's marriage. We gave whatever was demanded. We also gave what was not demanded. We can give even more. Even the very thought of breaking the sacred relationship (marriage) should not have even entered his mind. We will do anything to save the marriage of our daughter. It is a matter of her life”)

• Many people in India still believe that for Hindus marriage is a sacrosanct union that should not break on any account. Even mental illness should not vitiate the sanctity of marriage.

SEPARATION

Either party to the marriage may present a petition praying for a decree for judicial separation on any of the grounds specified in Section 13 for divorce. Where a decree of judicial separation is passed it would no longer be obligatory for the petitioner to cohabit with the respondent. Before 1976 there were 6 grounds of judicial separation, including desertion for least 2 years, cruelty, continuous unsoundness of mind for at least 2 years, adultery by the respondent and virulent form of leprosy for at least 1-year. After amendment of HMA in 1976, judicial separation can be granted to the wife or husband on any one of the 11 grounds, including incurable unsoundness of mind or continuous or intermittent mental disorder. In addition, 4 grounds are available to a wife.

DIVORCE

Divorce provides for the dissolution of marriage. Prior the HMA, under the Shastric Hindu law divorce, was an anathema. Wedlock was unbreakable, and the marital bond existed even after death. There is no word equivalent of talaq (divorce) in Hindu language. Divorce was known as an exception in certain tribes and communities, which were regarded as uncivilized by the Hindu elite. The courts recognized divorce it in these communities due to the force of custom, but the general Hindu law did not recognize.[13,36] There are two types of divorce: Judicial and customary. Any marriage may be dissolved by a decree of divorce on grounds specified under Section 13 and Section 13B of HMA. Section 13B provides for divorce by mutual consent. A petition for divorce has to be presented either by the husband or his wife. Section 29 (2) recognizes customary divorce or divorce by a special enactment. There is no provision for personal divorce. It is important to note that under the Hindu law, divorce does not take place unless it is granted by a court or community. Where divorce is obtained under a custom, its validity is subjected to recognition by court.[13] The Panchayat of a community has no competence to grant a divorce in the absence of a custom.[39]

The grounds for divorce include 11 general grounds (adultery, cruelty, desertion, ceases to be a Hindu, unsoundness of mind, leprosy, venereal disease, renounced the world by entering a new religious order, and not being heard for more than 7 years), that are available to both husband and wife; and 4 specific ones available only to wife. Mental illness is enlisted among the general grounds for divorce - “has been incurably of unsound mind, or has been suffering continuously or intermittently from a from mental disorder of such a kind or to such an extent that the petitioner cannot be expected to live with the respondent.”

Unsoundness of mind

This provision has two parts: (1) The respondent has been incurably of unsound mind or has been suffering continuously or intermittently from a mental disorder and (2) the nature of the disease and degree of which is such that the petitioner cannot be reasonably expected to live with the respondent. The Punjab and Haryana High Court has held that some sort of abnormalities on the part of the uneducated wife with incomplete development of the mind is not sufficient.[40]

Divorce was granted in cases wherein the wife was suffering from severe mental illness. (catatonic schizophrenia,[41] schizophrenia[40,41] and moderate mental retardation.[42] The court found in the case of Kaur and Gill[40] that the wife was suffering from schizophrenia before her marriage and this fact was not disclosed to the respondent. In the case of Singh and Kaur,[41] the wife needed prolonged hospitalization, repeated electroconvulsive therapy and continued drug treatment, and the illness had a chance of recurrence.

On the brighter side, in many cases of doubtful or mild forms of mental aberrations, divorce was not granted. The court held in the case of Reddy and Reddy[43] that mental disorder, not psychological depression, is a ground for divorce under the HMA. In another case the wife with the alleged mental disorder was taking care of her girl child since her birth.[44] The wife with intermittent mental disorder stood the test of cross-examination and gave coherent and intelligent replies.[45] Further, low IQ[48] was not accepted as a mental ailment. The fact that there was no danger from the wife to her child or husband or any other member of the family was significant.

The Gupta and Gupta case[49] is cited as a landmark judgment because it is in tandem with the scientific developments in psychiatry. The judgment goes to say that “schizophrenia is what schizophrenia does.” The mere branding of a person as schizophrenic will not suffice. Each case has to be assessed on its own merit.

It is thus evident that courts are now not being influenced by the social stigma attached to mental illness. Rather, they rely more on the objective evidence with regard nature, severity and outcome of mental illness, for deciding matrimonial disputes of divorce. In this regard it is worth quoting Justice Venkatachaliah “All mental abnormalities are not recognized as grounds for the grant of the decree. If the mere existence of any degree of mental abnormality could justify the dissolution of marriage few marriages would, indeed survive in law.”[50]

It is noteworthy that apart from clause 13 (1[(iii)], which specifically mentions unsoundness of mind, many of the grounds such as adultery, cruelty, desertion, ceased to be a Hindu, renounced the world by entering a new religious order, and not being heard for more than 7 years could be consequent to mental disorder in one of the parties.

Cruelty

Cruelty is a sound ground for divorce. It is important to mention that even in the presence of mental illness, cruelty has been pleaded as a ground for divorce. This is because courts are now recognizing that mental illness is treatable, and most cases have a good outcome and are reluctant in passing a decree of divorce unless there is hard evidence suggesting severe illness with poor functioning. Besides, it is very difficult to prove mental disorder in the other party especially when the other party vehemently denies it and does not cooperate. Cruelty, however, is more subjective. What constitutes cruelty would depend on many factors such as societal norms of expected behavior, and the perception and value systems, sensitivity and tolerance of the victim, perpetrator and others in the environment. This gives ample scope for manipulation.

Cruelty has been a ground for divorce by Marriage Laws (Amendment) Act, 1976. “Respondent has treated the petitioner with cruelty” would signify that an act or omission of conduct, can constitute cruelty as a ground for divorce, even if it does cause apprehension of any sort in the mind of the petitioner.[7]

Thus, it is not surprising that a wide range of behaviors have been accepted as cruelty such as not making tea, refusal to cook food,[51] tutoring the children against the other parent,[50] nagging the spouse,[51] etc. One wonders how not making tea, not cooking or even nagging could constitute cruelty. As women should not become aggressive and assaultive, such behaviors could be ways to express resentment by wives, when husbands or in-laws are not fair to them. Besides, no harm ensued from such behaviours as the husband or other members of the household could make tea or cook food. It also remains to be examined to what extent the so-called cruelty was a manifestation or a reaction to mental illness.

The Supreme court in 2004 ruled nagging by the wife as a ground for divorce.[51] This judgment evoked a lot of debate in the media. A magazine even conducted a survey in Tamil Nadu and reported: 56.25% supported the judgment, while 37.5% opposed it. Interestingly, 65% of those surveyed accepted that they were nagged by their partners.[58]

It is worth mentioning that the perusal of several cases where cruelty was accepted by the courts suggests that in many cases the respondents (wives) had some kind of mental disorder. For example:

• Abnormal behavior of not washing hands after answering the call of nature, not dressing properly after taking a bath, urinating in the street, and quarreling when advised to mend these ways[52]

• Repeated threats to commit suicide[53]

• Refusal to take medical treatment and a medical test advised by a doctor[54]

• Filing a number of FIRs and getting a number of cases registered, opposing bail application, filing complaints before women's cell and Company Law Board and giving an advertisement in the paper that the appellant is only employee of the respondent[55]

• Dastana and Dastane case which is cited as a high water mark case on mental cruelty.[23] The detailed description of her behavior is suggestive of psychosis.

Surprisingly, even grossly abnormal behavior[23,52] was attributed to “cruelty,” because it was in violation of societal norms, rather than mental illness.

Section 24 of HMA provides for maintenance pendente lite and expenses of proceedings, and Section 25 of HMA provides for maintenance and permanent alimony.

The SCARF study[5] from Chennai addressed the problems of 75 separated/divorced mentally ill women. The severity of illness and the negative attitudes of the husbands, and more so of in-laws, seemed to act as greater deterrents to the continuity of marriage. Legal separation occurred in only in 21.3% of cases; 34 of the husbands remarried. All but eight women lived with their parents or in their parental homes. Even in the cases where there were children, no maintenance was given. Twenty children were being looked after by the patients and their parental families. Only six children were cared for by the husbands. In four cases maintenance was given, and in three cases of these, it was a small one-time payment. The women and their families seemed to be ostracized more by the separation/divorce than by the mental illness. Thirty of the 75 women (almost all Hindus; the remaining being Christians or Muslims) continued to wear their Mangalsutras (symbol of intact marriage and living husband). They justified this by saying that “I am still married; “As long as my husband is still alive, I must wear it;” “It gives me a sense of security and protection.” Similar observations were made from North India where some women visiting the University Hospital for psychiatric treatment continued to put Sindur (vermillion) on their foreheads even after years of separation/divorce.[56]

This study highlights the plight of married women with mental illness, which has been termed as the “triple tragedy;” being a woman, becoming mentally ill and getting married.[59] The married women with mental illness received a raw deal from their husbands as well as through the legislative means. The marked discrimination against married women with mental illness can be attributed to society's prejudice against women; the patriarchal mindset. The study also illustrates the sacrosanct nature of Hindu marriage. Marriage is still perceived by the vast majority of Hindus as a permanent union.

CONCLUSIONS

• There is a wide gap between the legislative provisions of HMA, and societal value systems and attitudes toward marriage in Indian society. Societal norms are powerful and often override the legal provisions. The disparities are most glaring in the setting of mental illness in women. This is a reflection of social stigma for mental illness and patriarchal attitude toward women

• Concerted efforts are needed to bridge the gap between the legislative provisions of HMA and societal value systems and attitudes toward marriage. Awareness programs regarding the nature and types of mental illness, advances in treatment and information about the good outcome of severe mental illness will be helpful

• Improvement in moral and religious values will overcome to the extent the negative attitude and patriarchal mindset toward married women with mental illness.