Family Law

HINDU MARRIAGE: A STUDY OF ELEMENT OF MENTAL CAPACIY
S.S. JAIN SUBODH LAW COLLEGE
A STUDY OF ELEMENT OF MENTAL CAPACITY
Submission to: Submission by:
Ms. Bhavya Gangwal Vaidehi Kothari
Family law 5TH Semester
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S.S. Jain Subodh Law College
CERTIFICATE
This is to certify that Ms. Vaidehi Kothari has completed her project in the subject of Family
Law on the topic ‘element of mental capacity’ and has submitted before the last date prescribed
and has followed all the rules prescribed under Project guidelines of Subodh Law College.
__________
Teacher’s sign
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ACKNOWLEDGEMENT
The research on this project was supported by Subodh Law College. I want to thank Ms.
Bhavya Gangwal Ma’am for her incomparable support and expertise help for this project,
although she may not agree with all the contents of this project.
Also, much thanks to the all the faculty present in library for providing me with books in times
of need.
The computer support given to me by Subodh Law College cannot be forgotten to mention,
and much thanks for the facilities provided to me.
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CONTENTS
1. List of cases
2. Introduction
3. Mental disorder as a ground for nullity of marriage: section 12 (i)(b)
4. Mental disorder as a ground for nullity of marriage: section 12 (i)(c)
5. Divorce
6. The protection of women from violence act (2005)
7. Dowry prohibition act (1961)
8. Conclusion
9. Bibliography
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LIST OF CASES
1. Narayan RL v. Santhi. 2001; 4 SCC 688

2. Gambhir RK v. Gambhir S. 1978; HLR 317 (Del): 1978 MLR 279
3. Rani V v. Kumar M. 2001; 1 HLR 495 (P and H)
4. Puri SK v. Bhalla S. 2004; 1 HLR 89 (P#H)
5. Kaur H v. Gill BS, 2003. 2 HLR 661(P and H)
6. Singh I v. Kaur A. 1978; HLR 781 (P and H)
7. Sona v. Karambir. Marriage Law Journal 1995; 425. In: Nagpal RC. Modern Hindu
Law. Lucknow: Eastern Book Company; 2011. p 224.
8. Reddy H v. Reddy R. 2002; AP 228. Diwan P, Diwan P. Modern Hindu Law.
22 nd ed. Allahabad: Allahabad Law Agency; 2013. p 166
9. Arora S v. Arora DK. 2004; 2 HLR 36
10. Devi R v. Narayan B. 2002; 1 HLR 648 (Raj).
11. Patade JP v. Patade UJ. 2005 1 HLR 172 (Bom DB
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INTRODUCTION
“To be mothers, were women created and to be fathers men” (Rig Veda, IX, 85).
The institution of marriage is the foundation of peace and order of the society. Marriage entails
commitment and lifelong responsibilities. Severe mental illness results in disruption of
behavior and may result in disability and inability to function satisfactorily and meet the
obligations of marriage. Thus different legislations on marriage have put restrictions on the
marriage of persons with mental illness. These legislations were enacted in the 1950s when
none of the treatments such as chlorpromazine, imipramine or electroconvulsive therapy were
available and the prognosis of severe mental illness was poor. In recent times with modern
treatment most patients recover well and get married. However, after marriage many face
serious problems as they are often rejected by their spouses. Presence of a severe mental illness
makes the marriage voidable in the Hindu Marriage and Special Marriage Acts. This enlisting
of mental illness under the conditions of a valid marriage in the Acts becomes an excuse for
spouses to take the matrimonial disputes to courts. Cases continue for years and often it is a
no-win situation. Women and children are the worst sufferers. There is a pressing need to revise
the archaic laws which are proving to be detrimental to patients and their families. In addition,
it goes without saying that persons with mental illness cannot be deprived of their fundamental
right to marry and live a life of dignity. Apart from this, it has been observed that in matrimonial
disputes being dealt by courts, mental illness is often present in one of the parties. However,
the mental illness is either denied, not recognized or not acknowledged by the parties and
courts. As a consequence, the mental illness and its treatment remain neglected and the
situation goes from bad to worse. There is an urgent need to address this problem. Suitable
modifications in the existing legislations are the need of the day so that persons with mental
illness are not deprived of the basic human right, the right to receive medical treatment. This
position statement is presented by the specialty section on Marriage and Law. The deficiencies
in the existing legislation have been very neatly projected and very constructive suggestions
have been put forward.
Marriage is one of the most important events of life affecting social status as well as the
psychological status of an individual. It not only serves to satisfy the fundamental biological
need of sexual gratification through a socially acceptable way, but also helps the individual to
achieve a higher level of personality maturation.
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For most women in India, marriage is a onetime event in life, which is glorified and sanctified
and is associated with much social approval. It is also the ultimate fulfilment for most women.
If this is endangered or broken for any reason, including due to mental illness such as
schizophrenia, the lives of these persons may be shattered beyond repair. The plight of such
women has been portrayed as the “triple tragedy” implying the tragedy of being a woman,
afflicted with mental illness and being married. After separation, almost all these women live
with their aged parents or later with siblings and grumbling sisters-in-law. Social isolation and
stigma caused by this double disorganization, of chronic illness and the personal tragedy of
marital separation or divorce exist even in the modern society. The caregivers of these
separated or divorced or deserted women suffer much more than the patients themselves.
In most of the arranged marriages, the fact of mental illness is often not disclosed or discussed
with the family of the spouse. This is largely due to the fear that disclosure will not only lead
to rejection of the alliance by the party, but also to the canvassing of the fact in the marriage
market. This will prevent her from getting a suitable match. Also, in most of the cases the
woman has recovered fully from a past episode or reasonably from the present one, because of
which the other party has consented for marriage.
The State has always showed a positive attitude towards the preservation of the family. Family
Court Act, 1984 is an example, which indicates a commitment to protect and preserve the
institution of marriage and the intention of the lawmakers to prevent the fracture of families.
The marital disqualifications (Section 5 Conditions for a Hindu Marriage (ii)(a)(b)(c)) and
Section 12 (1) (b)(c) of The Hindu Marriage Act (HMA), 1955 result in severing an
important bondage between a person with mental disorder and the society. The law either
prevents the initiation or contributes to the breakdown of the marriage of a person with
mental illness. The judicial recognition of mental disorder as a disqualification has vitally
affected the matrimonial rights of persons with mental illness. In a series of cases of divorce
reported by Dhanda, schizophrenia is pleaded as basis in one-third of the cases, followed by
the causes, mild mental disorder/insanity/unsoundness of mind.
There are two questions with reference to the marriage. Is the marriage a valid one? Is it
possible for the relationship to continue? The conditions prevailing at the time of marriage
decide its validity. An individual who is not capable of comprehending what is happening to
him, or her, cannot give consent for marriage. The individual may not have the capacity for
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procreation. As marriage is tagged with lifelong responsibilities, certain restrictions are

imposed.
Unsoundness of mind can result in the nullification or dissolution of a marriage under various
personal laws in India.
MENTAL DISORDER AS A GROUND FOR NULLITY OF MARRIAGE: SECTION

12 (I)(B)
There is provision in the HMA (Section 12 (i)(b)) for nullity of marriage on the ground that
the marriage is in contravention of the conditions specified in Section 5 (ii).
Section 5 (ii) states that:
 Is unable to give a valid consent to it in consequence of unsoundness of mind, or

 Has been suffering from a mental disorder, of such a kind or of such an extent, as to
be unfit for marriage and the procreation of children
 Has been subject to recurrent attacks of insanity.
Section 5 (ii)(a) has two components: (1) Ability to give valid consent, and (2) soundness of
mind. Consent is an act of reason and deliberation. A person who possesses and exercises
sufficient mental capacity to make an intelligent decision demonstrates consent by
performing an act recommended by another. Consent assumes power to act and a reflective,
determined, and unencumbered exertion of this power. It is an act unaffected by fraud,
duress, or sometimes even mistake when these factors are not the reason for the consent.
Consent is implied in every agreement. For a valid consent soundness of mind is implied. The
expression “unsoundness of mind” has to be understood as the lack of a state of mind or
capacity to understand one's affairs or marital obligations. The phrase “in consequence of
unsoundness of mind” narrows down the concept of consent. If the emphasis of the Act is to
move from sacramental nature to the contractual nature of the marriage, consent is essential.
Then it is better to remove the phrase which leads to unnecessary litigations. Every person
with mental disorder need not be assumed to lack mental capacity to understand the nature
and consequences of the issue on hand. Many persons with mental disorder exhibit the
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capacity to give consent to their treatment, and testamentary capacity. Specific mention of
“unsoundness” invites unwarranted litigations.
Section 5 (ii)(b) mentions about mental disorder of such quality and such quantity which
makes the individual unfit for marriage and procreation of children.
Mental disorder is not a single uniform entity. Hundreds of types and subtypes are described
in the classificatory systems like International Classification of Diseases-10 or Diagnostic
and Statistical Manual of Mental Disorder fifth edition. The conjunctive “and” is also
important. It is “and", not “or". If a party is unfit for marriage, but fit for procreation of
children, or vice versa, the clause would not, it seems, apply. Marriage assumes fitness for it
including ability for procreation of children. Disorders of procreation of children is a complex
subject which involves not only some psychological disorders, but also gynaecological,
andrological, endocrinal, neurological disorders inter alia. When the contribution for this
unfitness by mental disorders is only a fraction, why should there be discrimination by their
inclusion and by omission of physical illnesses. The persons with mental disorder of such
severe extent would in all probability not get married through natural selection or rejection.
The Supreme Court held in Narayan and Santhi that to brand a wife as unfit for marriage and
procreation of children on account of a mental disorder, it needs to be established that the
ailment suffered by her is of such a kind or to such an extent that it is impossible for her to
lead a normal married life. The unfitness for marriage and procreation of children
contemplated here is one arising from mental disorder only, and not on account of any other
disorder. Infertility or sterility as such is not a ground for annulment of marriage under
Section 12 or for divorce under Section 13. In this case, the respondent was at the time of
marriage suffering from schizophrenia.
The medical evidence regarding the requisite degree of mental disorder is relevant, though
not conclusive. After consulting works on mental health, the Supreme court held that for the
purpose of Section 13 (1) (iii) “Schizophrenia is what schizophrenia does.” (Gupta and
Gupta). The judgment is significant because it gives importance to the effects and the impact
rather that to the mere labeling of mental illness. Each case of schizophrenia has to be
considered on its own merit.
A Division Bench of the Andhra Pradesh High Court held in Reddy and Reddy that
psychological depression by itself is no ground for divorce under the Hindu Law.
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Section 5 (ii)(c) mentions about recurrent attacks of insanity as a ground for nullity of
marriage. Insanity is an obsolete term. However, it is still used it in legal parlance. Recurrent
attacks assume remissions and relapses and lucid intervals. In the field of psychiatry, mood
disorders are the most common variety of such recurrent nature. The extent of mood
disorders ranges from mild spells of blues to severe psychotic episodes. Moreover, the
concept of legal insanity has departed widely from Medical insanity in criminal law, while
interpreting the Section 84 of Indian Penal Code. It is not possible to predict the future
recurrences before marriage. It is not possible to give clearance for a person with a single
episode of depression that he or she would not suffer from a psychotic episode in future.
Similarly, it is not possible to predict a bad prognosis for a person who had a couple of
psychotic episodes before marriage. Each case has to be decided on individual merits.
The disease “Epilepsy” has been removed as a bar for marriage since 1999 (by Act 39 of
1999, Section 2). From the parliamentary debates, to quote, Shrimati Minati Sen (Jalpaiguri),
“Sir, thank you for giving me an opportunity to speak on the Marriage Laws (Amendment)
Bill, 1999, which is going to amend the HMA, 1955, and the Special Marriage Act, 1954. My
party and I feel that the word epilepsy in the HMA, 1955, and the Special Marriage Act, 1954
should be omitted. Sir, the whole world has been brought inside our bedroom through
satellite and high tech modern technology. There is immense development in medical
science. Many complicated and serious diseases are well controllable. Of course it is true that
medical facilities are out of the reach of the downtrodden and the poor. Epilepsy nowadays is
curable. So it is inhuman to equate epilepsy and insanity together for divorce.”
Epilepsy was removed from the list, as it was considered inhuman to equate epilepsy and
insanity together and 80% of the cases of epilepsy are treatable. The word insanity leaves
many unfortunate individuals with stigma and denies the right for marriage. The majority of
the persons with mental disorder can lead a normal life with modern treatment. It is highly
deplorable to continue insanity as a bar for marriage.
Laws which permit nullification or judicial separation on grounds of unsoundness of mind

predominantly emphasize on incurable nature of the illness or such manifestations with which
one cannot be reasonably expected to live with the spouse. The social stigma of mental illness
is the main deciding factor in the inclusion of the restricted list.
Medical science has developed by leaps and bounds. Mental illness is understood better and
treated better in the modern era. The terminology has gradually changed from terms like
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“Idiot” “Lunatic” “Mentally unsound” to “mental illness or disorder.” Here the latter
terminology has taken its origin from medical or psychiatric parlance. Mental disorder is not
a single entity. There are different classificatory systems with their hundreds of varieties
starting from minor anxiety disorders to major disorders like dementias. There is no
uniformity either in the course or the prognosis of the mental disorders. Even among the same
group of disorders like Schizophrenia, the prognosis varies. An analogy or comparison of this
situation is to club all the cases of cough, ranging from common cold to lung cancer into one
group and determining the fate of the members. This unfortunate labeling practice influences
adversely the judicial determination of the fate and the legal rights of the individual whether
to get married or to stay married. Unfortunately the same information and attitude is not
transmitted to the legal circles nor figured in legislative debates.
Hence it is high time all the phrases indicating mental disorder to be removed from Section 5
of HMA, 1955.
MENTAL DISORDER AS A GROUND FOR NULLITY OF MARRIAGE: SECTION

12 (I)(C)
There is provision in the HMA (Section 12 (1)(c)) for nullity of marriage on the ground that
the consent of the petitioner obtained by force or fraud as to the nature of the ceremony or as
to any material fact or circumstance concerning the respondent.
Under the above provision concealment of history of mental disorder may be considered as
fraud. This usually results in allegations and counter allegations, and litigation for nullity. All
this is very stressful for the families of the persons with mental disorder, even if it is a minor
one like anxiety disorder.
It is submitted that whether fraud is committed or not can be determined by the application of
the doctrine of caveat emptor. It is not the duty of the parties intending to marry that they
should themselves come forward to speak of their virtues and vices. If a party, is interested in
a particular quality of the other party, e.g., his or her education, social status, property, health
and premarital sexual life, he should make specific enquiries. On enquiry if wrong
information is given, or some abuse of confidential position or some deliberate concealment
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of material facts is made, it is to be reckoned as fraud. 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, it is not fraud.
Dr. S. Nambi, past President of Indian Psychiatric Society, has expressed his view at various
forums that concealment of history of mental disorder should not be a ground for nullity.
There should be an express legislation in this regard.
Proposed amendments
 In HMA, 1955, in Section 5 (ii)(a), the phrase “in consequence of unsoundness of

mind” may be removed because:
i. Most patients with mental illness can give consent for marriage and even
patients with psychotic illness can give consent when they do not have acute
symptoms.
ii. Judiciary recognizes marriage as social institution of both sacramental and
contractual nature. Hindu marriage is sacrosanct, specific ceremonies are
mandatory (Section 7 of HMA). Amongst Hindus consent has little meaning if
the marriage has been performed as per the custom, because the marriage is
endorsed by God.
iii. Consent for marriage can be taken over an extended period before marriage. In
the case of a person with mental illness, it would be most unlikely that the
person would have been acutely disturbed over an extended period so as to be
unfit to give valid consent
iv. In India marriages are usually arranged by the guardian and consent is usually
proxy consent. There are several court judgments which attest to the fact that
proxy consent has been accepted as valid consent
v. Even if it is argued that the patients may be unfit to give a valid consent to
marriage, at some point of time, in consequence of unsoundness of mind, the
guardian who gives the consent (proxy) is invariably capable of giving a valid
consent as he is of sound mind.
 Conditions of HMA, 1955, in Section 5 (ii)(b) and (c) may be removed
 Many reasons are put forward. Mental illnesses are strongly discriminated
against physical illnesses. Many physical illnesses are very serious and
disabling, but they are not included in the restrictive conditions of marriage. In
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present times effective treatments are available for mental illnesses and most
mental disorders have good prognosis. Patients with mental illness have a right
to marry and live a life of dignity. Depriving mental patients the right to marry
would be a human rights violation. Besides, many patients with mental
illnesses perform better than those without mental illnesses. In the same line it
may be said that if patients with epilepsy can marry, those with mental illness
should also have the right to marry. It is to be noted that the real problem is the
negative attitude or stigma towards mental illness, not mental illness per se. It
is sad that many patients with mental illnesses are abandoned because of the
outdated provisions of HMA. Litigations relating to matrimonial disputes,
with one party having a mental disorder continue for years and worsen the
situation. It is important to mention that both the parties are adversely
affected; children and women are the worst sufferers. Often, it is a “no-win”
situation. Most disturbing is the observation that even some patients with
nonpsychotic illnesses (e.g., conversion disorder, dysthymia, anxiety disorders
etc.) are abandoned just because they had been prescribed psychotropic
medication. In India, marriage is the only social support for most adult patients
with mental illness as families are generally unwilling to look after patients
with mental illnesses. Amendments suggested would not change the fate of the
severe cases with mental illness, as they would not get married any way in the
process of natural selection. Clinicians have observed that an unmarried,
divorced or separated status adversely affects the prognosis of the mental
illness. Women with severe mental illness, unmarried, divorced or separated,
is a major public health problem. Society neither has the means, nor the
willingness, to take care of them. Last, but not the least, legal measures would
help in overcoming to a large extent the negative attitude towards mental
illnesses.
An explanation note may be added to HMA, 1955, in Section 12 (1)(c) “Concealment of
history of mental illness does not amount to fraud”
 Several reasons can be given in support of this proposal. Concealment of
every fact about the person is not considered a fraud by the court.
Concealment of temporary derangement would not amount to fraud in the
court of law. Besides, mental illnesses are treatable like many physical
illnesses (e.g., treatable heart diseases, eye diseases, diabetes, hypertension,
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etc.) and concealment of such illnesses does not amount to fraud. There are
contradictory judgments by the courts. In one judgment concealment was
considered as fraud; while in another judgment it was justified. It should be
the responsibility of the both sides to enquire about material facts about which
they are much concerned. Many people have opined that concealment is
justified when there is a good recovery from mental illness as there is a risk of
rejection, if the truth is revealed, merely because of the stigma for mental
illness. Last, but not the least, it appears that many litigations can be avoided,
marriages saved and relapses of mental illnesses can be prevented if the
amendment is made.
The recommendations may be implemented for the other personal laws like Special Marriage
Act, 1954 on par with HMA, 1955.
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.1 2
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. The Panchayat of a community has no competence to grant a divorce in the absence
1
Narayan RL v. Santhi. 2001; 4 SCC 688
2
Gambhir RK v. Gambhir S. 1978; HLR 317 (Del): 1978 MLR 279
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of a custom.3
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.4
Divorce was granted in cases wherein the wife was suffering from severe mental illness.
(catatonic schizophrenia, 5schizophrenia 6 and moderate mental retardation.7 The court found
in the case of Kaur and Gill 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, the
wife needed prolonged hospitalization, repeated electroconvulsive therapy and continued
drug treatment, and the illness had a chance of recurrence.
3
Rani V v. Kumar M. 2001; 1 HLR 495 (P and H)
4
Puri SK v. Bhalla S. 2004; 1 HLR 89 (P#H)
5
Puri SK v. Bhalla S. 2004; 1 HLR 89 (P#H
6
Kaur H v. Gill BS, 2003. 2 HLR 661(P and H)
7
Singh I v. Kaur A. 1978; HLR 781 (P and H)
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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 Reddy8 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.9 The wife
with intermittent mental disorder stood the test of cross-examination and gave coherent and
intelligent replies.10 Further, low IQ 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 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."11
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.
8
Sona v. Karambir. Marriage Law Journal 1995; 425. In: Nagpal RC. Modern Hindu Law. Lucknow: Eastern
Book Company; 2011. p 224.
9
Reddy H v. Reddy R. 2002; AP 228. Diwan P, Diwan P. Modern Hindu Law. 22 nd ed. Allahabad: Allahabad
Law Agency; 2013. p 166
10
Arora S v. Arora DK. 2004; 2 HLR 364
11
Devi R v. Narayan B. 2002; 1 HLR 648 (Raj).
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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.
Thus, it is not surprising that a wide range of behaviours have been accepted as cruelty such
as not making tea, refusal to cook food, 12 tutoring the children against the other
parent, nagging the spouse, etc. One wonders how not making tea, not cooking or even
nagging could constitute cruelty. As women should not become aggressive and assaultive,
such behaviours 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.13 This
judgment evoked a lot of debate in the media. A magazine even conducted a survey in Tamil
12
Patade JP v. Patade UJ. 2005 1 HLR 172 (Bom DB)
13
Patade JP v. Patade UJ. 2005 1 HLR 172 (Bom DB)
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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.
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
 Repeated threats to commit suicide
 Refusal to take medical treatment and a medical test advised by a doctor
 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
 Dastana and Dastane case which is cited as a high water mark case on mental
cruelty. The detailed description of her behavior is suggestive of psychosis.
Surprisingly, even grossly abnormal behavior was attributed to "cruelty," because it was in
violation of societal norms, rather than mental illness.
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THE PROTECTION OF WOMEN FROM VIOLENCE ACT (2005)
This the protection of women from violence Act is to provide for more effective protection of
the rights of women guaranteed under the Constitution for those who are victims of violence
of any kind occurring within the family and for matters connected therewith or incidental
thereto. Mental illness in the perpetrator or the victim could be one of the causes of domestic
violence. Many patients with psychosis apparently look normal, but due to their delusions,
hallucinations or aggression may turn violent. Also, many women with mental illness may
not be able to function in accordance with expectations of family, so may become the victims
of domestic violence (e.g., women with depressive illness, schizophrenia, and mental
retardation, etc.) Perpetrators’ acts may be the reaction to mental illness in the woman. This
has been ignored in the Act. Counseling the perpetrator to stop violence, by itself will not
work if there is major mental illness in the perpetrator (such as alcohol dependence, paranoid
schizophrenia etc.) or in the victim. Counseling the perpetrator that he should stop taking
alcohol or the drug that caused the violence and counseling the victim alone may not work in
all the situations unless supplemented by psychiatric treatment.
Proposed amendments
Amendments in act
9 (1) (e) the phrase “medical facilities” may be substituted with “medical including
psychiatric facilities.”
Section (14) (1) the phrase “to undergo counseling” may be substituted with “to undergo
counseling and/or psychiatric treatment.”
Section 37 (2) (k) the phrase “in counseling” may be substituted with “in counseling or
psychiatric treatment.”
Amendment in code of civil procedure of the Acr
Section 5 (b) Referral to the psychiatric facility for assessment and treatment if mental illness
if present.
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DOWRY PROHIBITION ACT (1961)
This dowry prohibition Act (DPA), 1961 is one of the most abused or misused laws to settle
the scores between parties. Under this act demanding dowry is an offence which is
cognizable, non-bailable and non-compoundable. It is often abused in the presence of mental
illness in one of the parties. When a person with mental illness is married and the fact of
mental illness was not disclosed and when it comes to light, because of relapse or residual
abnormalities in behaviour, the other party without mental illness rejects the party with
mental illness, usually female. The party with mental illness, in order to save the marriage,
makes allegations of dowry. Sometimes police complaints are made and the husband or his
relatives are arrested. In the vast majority of cases this results in lot of animosity which closes
doors for reconciliation and adversely affects the mental state of the person (woman) with
mental illness.
Dowry is a nonissue in most of the cases, because both the giver and receiver have done it
willingly and is a matter of past. The real issue in many cases is mental illness. The party
without mental illness rejects the other party because of mental illness.
Proposed amendment:
A provision for assessment of either party for mental illness, in case of doubt, may be made
either in the Act under Section (9) or under Cr.P.C. If it is found that mental disorder is
present in either party, it should be treated first, which would solve a majority of problems.
The proceedings under the DPA may continue and court may decide depending upon the
evidence.
20
CONCLUSION
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.
21
BIBLIOGRAPHY
Books Referred:
 Universal Law Publication, The Hindu Marriage Act, 1955. Bare Act with Short
Comments.
 Diwan P. , Modern Hindu law, Allahabad Law Agency
 New Delhi: Professional Book Publishers; 1954. The Special Marriage Act.
 Nagpal RC. In: Modern Hindu Law. 2nd ed. Lucknow: Eastern Book Company; 2008.
Nullity of marriage and divorce;
 Das PK. In: Universal Handbook on Protection of Women from Domestic
Violence. Delhi: Universal Law Publishers Co. Pvt. Ltd; 2007. The Protection of
Women from Domestic Violence Act, 2005.
 Delhi: Universal Law Publishing Co. Pvt. Ltd; 2008. The Dowry Prohibition Act,
1961. Bare Act with Short Notes.
Articles and Journals:
 Article on Hinduism, Marriage and Mental illness [Indian J Psychiatry, 2013]

 Marriage as a perceived panacea to mental illness in India
Websites Referred:
 https://www.indianjpsychiatry.org/articletps
 https://www.legalservicesindia.com
 http://www.webindia123.com/law/family_law
 http://dcw.delhigovt.nic.in/
22
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HINDU MARRIAGE: A STUDY OF ELEMENT OF MENTAL CAPACIY

S.S. JAIN SUBODH LAW COLLEGE

A STUDY OF ELEMENT OF MENTAL CAPACITY

Submission to: Submission by:

Ms. Bhavya Gangwal Vaidehi Kothari

Family law 5TH Semester

1. Narayan RL v. Santhi. 2001; 4 SCC 688

procreation. As marriage is tagged with lifelong responsibilities, certain restrictions are

MENTAL DISORDER AS A GROUND FOR NULLITY OF MARRIAGE: SECTION

Section 5 (ii) states that:

 Is unable to give a valid consent to it in consequence of unsoundness of mind, or

Laws which permit nullification or judicial separation on grounds of unsoundness of mind

MENTAL DISORDER AS A GROUND FOR NULLITY OF MARRIAGE: SECTION

of material facts is made, it is to be reckoned as fraud. If nothing is concealed on enquiry, but

 In HMA, 1955, in Section 5 (ii)(a), the phrase “in consequence of unsoundness of

THE PROTECTION OF WOMEN FROM VIOLENCE ACT (2005)

Amendment in code of civil procedure of the Acr

DOWRY PROHIBITION ACT (1961)

Articles and Journals:

 Article on Hinduism, Marriage and Mental illness [Indian J Psychiatry, 2013]

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