Marriage, mental illness and law.

The Special Marriage Act (SMA), 1954 and the Hindu Marriage Act (HMA), 1955 have put restrictions on the marriage of persons with mental illness, which are proving to be detrimental to patients and their families. There is an urgent need to address this problem. The deficiencies in the existing legislation have been projected and constructive suggestions have been put forward.

POSITION STATEMENT: INDIAN PSYCHIATRIC SOCIETY

President: T. V. Asokan; Immediate Past Presidents, Indira Sharma, Roy Abraham Kallivayalil; Vice President, V. Watve; Secretary: N. N. Raju; Immediate Past Secretary: Asim K. Mallick,

Speciality Section on Marriage and Law: Chairperson: Dr. Karri Rama Reddy; Convener: Ravindra Mukund Kamath

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.

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.[1] 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[2] 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.[3]

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 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. As a prototype, HMA, 1955[2] is discussed here under.

HINDU MARRIAGE ACT (1955)

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 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[4] 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.[5] 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).[6] 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[7] that psychological depression by itself is no ground for divorce under the Hindu Law.

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.[8] 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 “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 of material facts is made,[91011] 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.[12]

Proposed amendments

In HMA, 1955, in Section 5 (ii)(a), the phrase “in consequence of unsoundness of mind” may be removed because:

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.

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.

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

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

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 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, 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.

THE PROTECTION OF VIOLENCE FROM WOMEN ACT (2005)

This the protection of violence from women Act[13] 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.

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.

DOWRY PROHIBITION ACT (1961)

This dowry prohibition Act (DPA), 1961[14] 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, nonbailable and noncompoundable. 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 behavior, 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.