An unsound framework

Sep 23 2013, 02:21 IST
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SummaryMatrimonial law is heavily stacked against persons with disabilities

Matrimonial law is heavily stacked against persons with disabilities

Mental health activists were pleased with the Supreme Court’s recent observation that the mere fact of a spouse having “schizophrenia” was not enough ground for divorce under section 13 of the Hindu Marriage Act. The act allows for divorce if a spouse “has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent”. The provision itself is controversial, because it includes both diagnosed and undiagnosed conditions, which effectively makes a judge the sole authority on whether a person is of “unsound mind” or not. Celebrations were more subdued after a closer examination of the judgment.

The judgment laid undue stress on patronising the institution of marriage, although that is not the focus of this article. It also showed that the Supreme Court has done nothing but uphold an earlier position, laid down in 1988 in a remarkably well-thought-out ruling by Justice Venkatachaliah in Ram Narain Gupta vs Rameshwari Gupta. The ruling took into account literature on psychiatry and jurisprudence to reach its conclusions. One particular section stands out: “Undoubtedly, mental illness is so disvalued because it strikes at the very roots of our personhood. This is captured in part by the language we use in describing the mentally ill. One is a hysteric, is a neurotic, is an obsessive, is a schizophrenic, is a manic- depressive. On the other hand, one has heart disease, has cancer, has the flu, has malaria, has smallpox”.

The grounds for divorce are heavily stacked against persons with disabilities. Besides “unsoundness of mind”, leprosy, which results in disability, still remains a ground — despite being completely curable. Till 1976, epilepsy was also included in this list. The only other “health” concern that the law recognises is venereal disease, which strikes at the very heart of “conjugal bliss” and may accompany ground one: adultery.

The legislature, however, did not intend to make “unsoundness of mind” an easy escape route. As Venkatachaliah points out, “If the mere existence of any degree of mental abnormality could justify dissolution of a marriage, few marriages would, indeed, survive in law”. The qualification that the petitioner could not “reasonably be expected to live with the respondent” was in the statute books. Then why did the Supreme Court have

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