Management of issues relating to marriage, mental illness, and Indian legislation.

INTRODUCTION

Marriages in India

Marriage is a socioreligious institution. In India, marriage of children, especially daughters, is considered an obligatory responsibility of parents. Unmarried status is considered a stigma in Indian society. The majority of marriages in India are arranged by parents or relatives. Marriages are solemnized by the performance of customary rites. There is also provision for marrying without the same in accordance with the procedure laid down in Special Marriage Act (SMA), 1954. Such marriages usually take place without the consent of parents, who do not consent because difference in religion/caste/other reasons between the 2 parties. Religions consider marriage as sacrosanct and permanent. For Hindus, it is a union for this life and for all lives to come. Extra-marital relationships, separation, divorce, and remarriage have been looked down upon. Dowry has been a custom in Hindu marriage since times immemorial. Parents spend their life savings to arrange for substantial dowry to marry their daughters. Demands for dowry give birth to social evils such as domestic violence, homicide or suicide.

Marriage and mental illness

Relationship between marriage and mental illness (MI) is complex. Marriage can precipitate or exacerbate illness in a vulnerable person. Most people would not like to marry a person with MI (PwMI) because of widespread stigma. Thus, concealment of history of MI, past and present, at the time of solemnization of marriage is common. This concealment is largely due to stigma as the outcome of MI has improved substantially in recent years.

When MI is detected after marriage, there is a tendency to abandon the sick person. More women, than men with severe MI (SMI), are separated, abandoned, or divorced because. They are usually denied maintenance and often custody of their children and visitation rights. The woman’s parents may file cases alleging domestic violence or harassment on account of dowry in a desperate attempt to save the marriage. However, these actions are perceived negatively by the other party. Relations usually deteriorate further, and this has a negative effect on the illness. When such marriages continue, often parents have to bear the cost of treatment. Besides, high expressed emotions in the husband’s family have a negative effect. There can be problems ranging from mild discord to domestic violence, abandonment, suicide, homicide, divorce, maintenance and child custody issues, and remarriage.

There is prejudice against women with MI in India. They are often abandoned by their husbands and in-laws and are sent back to their parents’ homes. It is seen that when the partner and his/her family support the treatment of the sick partner with MI, the prognosis of MI improves substantially, and marriage also continues. Another happy note is that when working married women develop MI, their husbands more often accept the illness and cooperate in the treatment.

Clinician’s dilemma

Psychiatrists have an important role to play as families may approach them for advice relating to marriage in addition to medical advice. When problems arise because of MI, there is often a conflict of interest between the psychiatrist, the patient/patient’s natal family, and spouse/spouse’s family. The psychiatrist is concerned primarily with medical issues (treatment, outcome, relapse prevention, planned pregnancy, rehabilitation, etc.). The primary concern of the patient/patient’s natal family is to marry the child, and thereafter to save the marriage, i.e., prevent the dissolution of marriage. On the other hand, the main concern of the spouse/spouse’s family is to get rid of the sick spouse by getting an early divorce. Thus, there could be tremendous pressure on the psychiatrist from husband (legal guardian of patient) to reveal information relating to previous illness (diagnosis and treatment) for getting divorce. Such situations are extremely challenging. The psychiatrist has to accept social norms and work for the best interests of the patient, with the Indian legislation in the background.

There is thus an imperative need to develop guidelines for psychiatrists to deal with such difficult situations, which are quite common in clinical practice.

BACKGROUND

Indian legislation and mental illness

Both psychiatry and law deal with behavior. Psychiatry deals primarily with abnormal behavior, which it corrects by appropriate treatment. Legislations provide for action, criminal or civil, when the limits of behavior prescribe by law, are not adhered to. There are legislations on marriage and others that are applicable in matters relating to marriage. The legislations recognize the socioreligious nature of marriage. Thus, it is the intention of courts to prevent the fracture of the marriage unit.

Following legislations are important in marital settings:

SMA, 1954[1]

Hindu Marriage Act (HMA), 1955[2]

Muslim Personal Law (Shariat) Application Act (MPLSAA), 1937[3]

Dissolution of Muslim Marriages Act, 1939[4]

Indian Divorce Act (IDA), 1869[5]

Parsi Marriage and Divorce Act (PMDA), 1936[6]

Family Court Act (FCA), 1984[7]

Protection of Women from Domestic Violence Act (PWDVA) 2005[8]

Dowry Prohibition Act (DPA), 1964[9]

Indian Penal Code (IPC), 1860[10]

Hindu Adoption and Maintenance Act, 1956[11]

Guardian and Wards Act (GWA), 1890[12]

Hindu Minority and Guardianship Act (HMGA), 1956[13]

Universal Declaration of Human Rights (UDHRs), 1948[14]

The Constitution of India, (COI), 2019[15]

Mental Health Act (MHA), 2017.[16]

Mental illness and right to marriage

Before early 60s, many patients with SMI were institutionalized because treatments were not available, and it was widely believed that MI and marriage are incompatible. Thus marriage legislations HMA, SMA, and others put restrictions on the marriage of persons with SMI. However, with psychopharmacological treatment and the advent of electroconvulsive therapy prognosis of patients greatly improved, yet widespread stigma continued, and most people would like to avoid MI in the prospective spouse.

Certain points deserve mention

In most of the legislations on marriage, the restrictions on the marriage of persons with MI (PswMI) are not absolute. In HMA, such a marriage is voidable; the petition for nullity should be presented within 1 year

Right 16 of UDHRs of the United Nations, under Article 16 states, “(1) Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage, and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”[14] India is a signatory to the UDHRs

The COI[15] provides for Freedom of movement (Articles 19 (1)[d]), Freedom of Residence (19 [1][e]), and protection of life and personal liberty (Article 21). The word “life” in article 21 means a life of dignity[17] and includes right to privacy.[18] In India, live-in-relationships are a taboo as they lower the dignity of live-in partners, specially the female partner. Thus, marriage may be conceived as a Fundamental Right under the COI for all citizens including those with MI

Not letting woman marry a person of her choice forcing her to marry a person is domestic violence under the PWDVA.[8] This implies that a woman has a right to marry a person of their choice. Article 14 of COI provides equality before law, so both women and men have right to marry

The past President of Indian Psychiatric Society, S Nambi, suggested for an express legislation for not considering concealment of history of MI as a fraud for granting nullity[19]

The position statement of the Indian Psychiatric Society on “Marriage, mental illness and law” states that, in the HMA, 1955, in Section 5 (ii)(a), the phrase “in consequence of unsoundness of mind,” and in Section 5 (ii)(b) and (ii)(c) may be removed. The recommendations may be implemented for the other personal laws like the SMA, 1954 on par with HMA, 1955[20]

Letters have been sent by the Indian Psychiatric Society to the Law Ministry, Government of India, with copies to the Ministry of Health and Family Welfare and National Commission of Women for making the amendments

Many landmark Supreme Court (SC) judgments have rejected “schizophrenia” as a ground of nullity and divorce[212223]

Recent evidence suggests that the outcome of many lifestyle illnesses is worse than SMI[24]

Most patients have comorbidity, so the issue of physical versus mental may be very irrelevant

In recent years, prognosis of MI has improved substantially

Many persons with SMI are getting married and are able to function optimally.

In conclusion, all patients of MI have a right to marry.

Conditions of marriage

The SMA, 1954[1] and the HMA, 1955[2] while mentioning conditions of a marriage stipulate that:

A. At the time of marriage neither party:

Is incapable of giving a valid consent to it in consequence of unsoundness of mind; nor

Has been suffering from 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.

It may be noted that clause (a), “is incapable of giving a valid consent to it in consequence of unsoundness of mind,” has limited practical significance because: (1) If the marriage ceremony took place smoothly, then it can be assumed that even if MI was present, it did not adversely affect the ability to consent for marriage, (2) nonconsent would render the marriage neither void nor voidable.

Nullity of marriage: Void and voidable marriages

A marriage in contravention of the above is voidable as per the HMA, 1955[2] and void as per the SMA, 1954.[1]

A voidable marriage under the HMA, 1955[2] remains valid until it is challenged in the court within a year of marriage. The court may or may not declare it to be void. Courts require a strict standard of proof of MI. The onus is very heavy on the party who wants to break the marriage to prove that that the marriage was solemnized in contravention of the conditions with respect to MI (under Section 5, clause (ii) [a][b][c]) of HMA and Section 4 of SMA (b) (i)(ii)(iii).

In addition, to the above, there are other grounds for void and voidable marriages.

Impotency

The marriage is voidable as per HMA, if it has not been consummated owing to the impotence of the respondent[2] and void as per SMA if the respondent was impotent at the time of the marriage and at the time of institution of the suit.[1]

Consent for marriage

When the consent for marriage was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent as per HMA;[2] or the consent was obtained by coercion or fraud as defined in the Indian Contract Act, 1872 (9 of 1872)[25] as per the SMA;[1] the marriage would be voidable in accordance with HMA but void as per SMA.

Consent for marriage, with concealment of history of MI, is common. Consent by proxy is also common as by, and large marriages are arranged. In Ruby Roy v. Sudharshan Roy case,[26] the father approved the girl despite a major physical deformity (devoid of female organs). The court invoked the principle of agency and held that the son could not repudiate the marriage once he had authorized his father to approve a bride for him; the marriage was not annulled.

Thus MI can make a marriage voidable/void on four accounts:

Chronic/recurrent incapacitating MI.

Consent taken by fraud: Concealment of history of MI

Consent taken by coercion

Impotency.

Chronic/recurrent incapacitating mental illness

Objective assessment of the degree of disability in PswMI can be done by employing the Indian Disability Evaluation and Assessment Scale (IDEAS).[27] The IDEAS has been accepted by the Government of India in 2002 to measure psychiatric disability in any mental condition causing disability. It is a comprehensive scale as it covers the four major domains: Self-care, Interpersonal activities (social relationships), Communication and understanding, and work (employment/housework/education). A PwMI who scores ≥7 on IDEAS is considered to have 40% or above disability, which may be taken to represent “chronic/recurrent incapacitating MI.” On the other hand, if the score on IDEAS is <7 the patient could be deemed not to have a “chronic/recurrent incapacitating MI” and thus fit for marriage (as per the HMA or SMA). However, it may be noted that just like a diagnosis of mental retardation cannot be based entirely on an IQ test score, likewise a person cannot be said to be unfit for marriage only on the basis of the score on IDEAS. The performance of the patient in real life versus the social expected roles after marriage would be the main basis to decide and to explain to patients, families, and courts about the suitability of the patient for marriage. The score on IDEAS would provide supportive evidence about suitability for marriage.

In general, courts try to prevent the dissolution of marriage. For example, in R Lakshmi Narayan v. Santhi, 2001, the mere finding that the respondent-wife was suffering from some mental disorder, and she did not have cohabitation with the husband during the stay of about 25 days together was not a sufficient to prove the condition prescribed under S5(ii)(b) of the HMA.[28] Similarly, in the Gurnam Singh v. Chand Kaur, 1980 case, even though the husband pleaded that as his wife was suffering from schizophrenia at the time of marriage, it was voidable under HMA, the court refused to grant the decree of nullity to him because he had a daughter from the wife, which meant that the mental disorder of the wife was not of a kind or to such an extent as to make her unfit for marriage and procreation of children.[29]

In another case, Kartik Chandra v. Manju Rani 1973, the respondent exhibited abnormal behavior after 3 days of marriage. However, as the respondent had appeared for her matriculation exam 3 months before the marriage, the court presumed that the state of sanity continued till her marriage; the recent breakdown was not viewed as lunacy at the time of marriage.[30] Similarly, a weak or feeble or dull mind may not be unsound for marriage. If a person understands the nature of marital relations, he would be treated to be mentally sound for marriage.[31]

Concealment of history of mental illness

In matrimonial law, every concealment misrepresentation or is not taken as fraud. Courts understand that, in marriage, proposals are such as marketing and many things may be concealed or even exaggerated to some extent. The material fact or circumstance must concern the person or character of the respondent, should be of such nature as would materially interfere with the marital life and pleasure, including sexual pleasure.

With respect to nondisclosure of MI courts have taken different stands.

An important question is whether there is any obligation to disclose the fact of past illness, and does failure to disclose the amount to fraudulent conduct? In India, Courts have answered this question in three different ways. First, the failure to disclose past illness (schizophrenia) amounted to suppression of a material fact, and thus a fraudulent conduct so nullified the marriage.[3233] Another court, however, held that in the light of the stigma of MI, expectation of disclosure of this fact was unrealistic and impractical, and such normal conduct cannot be termed fraudulent.[34] Similarly, despite a history of bipolar disorder in the wife, which had been concealed at the time of solemnization of marriage, nullity was not granted. The court opined that that nondisclosure or concealment of a disease which was cured much earlier to the marriage does not amount to fraud within the meaning of the word used in Section 12 (1)(c) of the HMA.[35] Third, whether fraud has been committed can be determined by the application of the doctrine of caveat emptor. It is not the duty of the parties intending to marry to themselves speak of their virtues and vices. If a party is interested in a particular quality of the other party, e.g., no history of MI, he/she should make specific inquiries. On inquiry if wrong information is given, or there is deliberate concealment of relevant facts, it is to be reckoned as fraud committed.[36] If nothing is concealed on inquiry, but the petitioner himself fails to verify all the facts because of his own carelessness/lethargy/difficulties, it is not fraud. In the NG Dastane v. S Dastane, 1975,[37] the bridegroom and his parents had been told that due to a stroke of heat 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 inquiries about the case. Applying the principle of caveat emptor, the court did not allow nullity.

Consent taken by coercion

This not uncommon, for example, mentally sick women are often coerced into marriage by their parents. This has little legal significance but has clinical significance, as it may be very stressful for the women to deal with it, can make her depressed and suicidal, and result in relapse of illness.

Impotency may be an issue in matrimonial disputes when it is alleged that consummation is not possible because of impotency of the other party. When impotency is proved or when consummation has not taken place despite the parties cohabiting, the court is inclined to give a decree of nullity.

Impotency means practical impossibility to perform sexual intercourse in a complete and perfect manner.[38] Legally, impotence may be physical or mental; general (complete) or relative (specific). A person is physically impotent when his or her genital organ is absent, or is either too small or too big or plagued with some disease because of which intercourse cannot be performed.[39] If potency can be cured by medical treatment or surgery, it would not amount to impotency, unless the respondent refused to undergo treatment. “Potence” in the case of males means power of erection of the male organ accompanied by the discharge of healthy semen containing living spermatozoa and in females, menses.[40] It may be noted that: (1) the petitioner has to bear the onus of proving the impotence of the respondent (2) nonconsummation of marriage may be taken as a proof of impotence by the court.[41]

Impotence may be proved by medical examination. The medical evidence must not be noncommittal or incomplete.[42] The doctor ought to be categoric that the test is a conclusive proof of potency or is otherwise.[43] It may be noted that the court cannot order any party to take a medical test. However, if a party proposes and the other refuses, the court may presume impotence of the latter.[44]

Testing potency

There procedures are available to assess the cognitively induced erection that occurs during the exposure to sensual (audio, audiovisual, or fantasy) and/or local tactile (penile vibration) sexual stimuli, or the involuntary, unconscious penile tumescence that occurs during the REM stage of sleep. These tests are helpful in differentiating organic from psychogenic erectile dysfunction.

Potency can be tested in the clinical setting by “erotic imagery coupled with sexually stimulation,” in a secluded room, by the male partner himself, or by a laboratory technician or therapist. If erection and ejaculation take place, potency is confirmed and can be certified.

Nocturnal penile tumescence and rigidity testing

Nocturnal penile tumescence (NPT) monitoring evaluates the presence or absence of the involuntary unconscious erections, which normally occur during the REM stages of sleep, during 1–3 nights.[4546] Normal nocturnal tumescence has been defined as a total night erection time >90 min and an increase in penis circumference in excess of 2 cm.[45] A change in circumference of 16 mm or 80% of a full erection is thought to reflect a sufficient degree of penile rigidity for vaginal intromission.[45] A penile buckling pressure of 100 mmHg using the manual tonometer can provide a more accurate assessment of the degree of penile rigidity required for vaginal penetration than the percentage change in circumference. A buckling pressure <60 mmHg is thought to be inadequate for vaginal penetration.[45]

NPT testing is performed in a sleep laboratory and includes monitoring the penile circumference and axial rigidity at or near the time of maximum tumescence. NPT testing should be undertaken in selected cases, in men in whom psychological factors are strongly suspected, or organic factors are questionable, or the intake of pharmacological agents is not identified or in forensic cases.

Several pitfalls and limitations of NPT testing have been mentioned.[45] They are: (1) paucity of NPT norms for men over 65 years (2) the lack of validation against an exterior criterion; (3) the lack of objective measures to differentiate the quality of sleep-associated penile erections with those occurring during usual sexual activity; (4) psychological factors (e.g., anxiety, depression, or loss of sexual desire) or dreams with anxiety content, can influence the occurrence of NPT and confound the results; (5) the first-night effect occurring on the first night of sleep laboratory monitoring may affect the test findings; (6) sleep abnormalities such as apnea, periodic leg movement, and nocturnal myoclonus can adversely influence the quality of NPT recording; (7) an arbitrary criterion of the minimum erection time required for an erection episode is used for identification of NPT events; and (8) NPT testing involves waking up the patient when he has 80% of a full erection to measure the buckling pressure of the penis.[47]

Divorce

Divorce refers to the legal dissolution of a valid marriage. Marriage can be dissolved on the ground that the other party 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 that the petitioner cannot reasonably be expected to live with the respondent” (Section 13(iii), HMA, 1955;[2] Section 27 (1)(e) SMA, 1954).[1] Thus, divorce can be granted on ground SMI resulting marked behavioral disturbance.

Other grounds of divorce are adultery, desertion, cruelty, and others (is undergoing a sentence of imprisonment for 7 years or more for an offence as defined in the Indian Penal Code, has been suffering from a venereal disease in a communicable, or from a virulent and incurable form of leprosy, or has not been heard of as being alive for 7 years or more).[12] or has renounced the world by entering any religious order or has ceased to be a Hindu.[2]

Following points deserve mention:

In recent years, courts have been reluctant in granting divorce on ground of MI. Courts have become aware that all MIs are not the same and that stringent measures must be applied for allowing the dissolution of marriage. Further, it accepted that even though schizophrenia is a severe illness, it is a treatable and that all cases of schizophrenia are not the same; many have a good outcome, and that the outcome depends on many factors such as treatment compliance. Besides, analogy has been drawn between schizophrenia and diabetes and hypertension

It is written rule of law that a defaulter cannot be the complainant. This means that if a spouse did not get the partner’s MI treated or did not cooperate in the treatment, or prevented the partner from receiving treatment, or the illness relapsed because of cruelty inflicted by the spouse on the partner, or the spouse deliberately deserted the partner; then, the spouse would not get the advantage (divorce) of the same.

There are a few landmark judgments

In Ram Narayan Gupta v. Rameshwari Gupta 1988,[21] the SC after consulting work on mental health held that “schizophrenia is what schizophrenia does.” The mere branding of the person as schizophrenic would not suffice. The mere existence of this mental disorder is not sufficient. Dissolution of marriage can only be justified when the degree of the mental disorder is such that the spouse seeking relief cannot reasonably be expected to live with the other. In the words of Justice Venkatachalliah “All mental abnormalities are not recognized as grounds for grant of decree of divorce. If the mere existence of any degree of mental abnormality could justify the dissolution of marriage, few marriages would, indeed, survive in law.”[21]

The Punjab and Haryana High Court has held that some sort of abnormalities on the part of an uneducated wife with incomplete development of the mind is not sufficient for the grant of the decree of divorce (Veena Rani vs. Mohinder Kumar 2001).[48]

In Anita v. Har Bhagwan 2003,[49] the IQ of the appellant was found to be 52. It is, though a low IQ, yet it is no mental ailment. There is no danger from her to her child or husband or any other member of the family. Hence decree of divorce was not passed.

In Lakshmi v. Ajay Kumar 2006,[50] the court observed that the disease is curable. Once treated, it may not recur.

The court in Kollam Chandrasekhar v. Kollam Padmalatha 2013,[23] the SC ruled that wife can’t be dumped on the grounds of schizophrenia. The court considered that schizophrenia is a treatable, manageable disease, which can be put on at par with hypertension and diabetes. The court observed that illness has its problems, but can this be reason for seeking dissolution of marriage, especially after a child is born? The court stated that the wife also must stick to treatment plan and get better.

Cruelty as a ground for divorce

Cruelty, rather than MI, is often pleaded as a ground of divorce because it is often difficult to proof MI. On the other hand, the allegation of cruelty has worked in many cases because it is broadly defined. E.g., SC said “the conduct complained of should be grave and weighty. It should be such that no reasonable person should tolerate it. It should not be ordinary wear and tear of marriage” (Naveen Kohli vs. Neelu Kohli 2006).[51] It may be further noted that the intention to be cruel is not material.

For example, following behaviors have been accepted as cruelty by courts.

Physical cruelty

Repeated beating or beating after a long course of ill-treatment[52] (Mohinder Kumar vs. Sharda Rani 1978).[52] Burning any limb of the body.[53]

Mental cruelty

Repeated rebukes, abuses, nagging, taunts, curses, and compulsions to apologize needlessly;[54] refusal to take medical treatment and subject to medical test as advised by doctor;[55] false charge of unchastity;[56] repeated threats to commit suicide,[57] etc.

Two landmark cases of cruelty have been widely reported. The first case was by way of filing a number of FIRs and getting a number of cases registered against the husband, opposing his bail application, filing complaints before the Women Cell and Company Law Board and giving an advertisement in the newspaper that the appellant (husband) is only an employee of the respondent.[51] In the second case, the wife used to abuse the parents and ancestors of the husband; called the husband a monster in the human form; threatened to burn herself and the house; cursed the Dastane family; cursed the family to ruination; tore the mangal sutra twice and said she would not put it on again; once she abused and insulted the husband in front of his student, beat the daughter when she was running high fever (104°), rubbed chillies on the tongue of an infant child; threatened to make her husband lose his job and publish the news in the city news papers; wrote against him to his officers; used to switch on the night at midnight and sit by the husband’s bedside and nagging him throughout the night as a result of which husband prostrated himself before her on several occasions; used to lock out on the husband when he was due to return from office; would hide his shoes, keys, watch and other things when he was to go to office as a result of which on 4/5 occasions he went to office without food because of harassment by her (Dastane vs. Dastane 1975).[37]

It is apparent that the women implicated in these two cases suffered from SMI, which was the cause of alleged cruelty. However, the petitioner pleaded for divorce on the ground of cruelty, not on the ground of MI (Section 13 (1)(iii)).

Psychiatrists have an important duty to guide the patient, patient’s family, and even the courts, when the situations arise, about the possibility of MI, the need for proper assessment and medical treatment.

Desertion versus restitution of conjugal rights

A common scenario witnessed by clinicians is that when a married woman manifests symptoms of SMI soon after marriage at her husband’s place, she is sent back to her parent’s home for treatment. The husband feels he has been cheated and would not like to take his wife back. Nevertheless, the woman and her family may even deny MI and attempt to send her back to her husband’s home. Thus the husband deserts the wife, while the wife yearns for restitution of conjugal rights. The husband may plead for divorce in court on the ground of desertion by wife.

Custody of child of person with mental illness

When child custody issues arise, the court decides on them. The GWA S17 (14), empowers the court to make an order as to guardian. When custody claims are made, the court makes order as to guardian. “Guardian” is a “person having the care of the person of a minor or of his property or of both his person and property.” GWA (1890).[12] Thus, there are three forms of child custody, physical, legal, Physical cum legal. The noncustodial is generally granted visitation rights, the conditions of which are determined by the court.

Custody is granted by the court by considering The GWA, 1890,[12] a secular Act; along with the relevant personal law. E.g., for Hindus, HMGA, 1956;[13] and HMA, 1955;[2] for Muslims, the MPLSAA, 1937;[3] for Christians the IDA, 1869;[5] and for Parsis the PMDA, 1936.[6] In deciding upon the custody of a minor child the court, while keeping in mind the parents’ rights to the custody, holds “welfare of the minor” as the most important factor. For this court regards several factors such as age, sex, religion of the minor, character, and capacity of the proposed guardian, and closeness to the minor, the wishes if any of a diseased parent, as well as the opinion of the minor if the minor is old enough to make an intelligent preference) (GWA, 1890).[12]

It is important to note that The HMGA, 1956, Section 6 states that[13] the father is a natural guardian, and after him, it is the mother. Section 6(a) states that:

In case of a minor boy or unmarried minor girl, the natural guardian is the father, and “after” him the mother; and

The custody of a minor who has not completed the age of 5 years shall “ordinarily” be with the mother.

The HMA, Section 26, authorizes the court to pass interim orders with respect to custody, maintenance, and education of minor children in consonance to the wishes of the minor. The court can also revoke and suspend any such order passed.[2]

The FCA, 1984, Section 12 is empowered to secure the services of medical experts, either on an application by one of the litigants or the family, court may suo moto exercise its discretion to conduct a psychiatric/psychological evaluation of both the parents including the child in order to ensure that custody is given to the emotionally and mentally fit parent.[7] In fact, the SC has come down heavily for not using the services of medical experts by the lower courts.[58]

GUIDELINES

The guidelines presented are with reference to the SMA 1954 the HMA 1955, which are applicable to majority of people, and others acts most of which are secular in their application.

Before solemnization of marriage

Should a person with mental illness get married?

Psychiatrists are often confronted with the question, whether with PswMI with should marry. Legally, as explained above, every PwMI has a right to marry. The social prescription is that everyone should marry, if feasible, as marriage is the major support system for adults.

Everyone has a right to get married irrespective of whether the person has a MI or not. Marriage is based on agreement between the two parties. The parties should have attained the specified age, and other conditions also should be met with as specified in the act.

Whom to marry?

Often it is difficult to settle the marriage of a person with SMI PwSMI. Parents may fix the marriage of their child who has a SMI with a person who also has a SMI (e.g., schizophrenia or bipolar illness) with the hope that the marriage may work.

Psychiatrist should discuss the pros and cons of marrying to a mentally healthy versus mentally sick person, especially one with a SMI. Genetic counseling should be provided to patients with major psychiatric disorders (such as schizophrenia, bipolar disorder, other psychotic illnesses, and alcohol dependence [Type I])

If the patient has a SMI, the prospective spouse should preferably not be suffering from a SMI (such as schizophrenia, bipolar disorder, schizophrenia, schizoaffective disorder, or any other related major heritable disorder). Simple data can be given, e.g., that about half of the offspring of the couple are likely to have the psychotic illness if both are affected by the SMI. There should preferably be no first degree relative with a psychotic illness as this would increase psychiatric morbidity in offspring

If parents are unable get a healthy match for their child with SMI, a person with other types of deficiency (e.g., physical illness) may be opted for.

Medication and marriage

It is common for patients/families to discontinue medication on their own or against the psychiatrist’s advice to facilitate solemnization of marriage. When the doctor insists on continuing medication, the doctor may be changed. A patient of one of the authors attempted suicide thrice because her parents insisted that she takes medicines. She desperately wanted to get married, as all her close friends had been married, so she did not want to take the medication as this would be a hindrance to getting married.

The MHA, 2017,[16] stipulates that every PwMI has a right to access treatment, which implies a right to receive treatment. Besides, Right to life (meaning healthy life) is a Fundamental Right under article 21 of COI.[15]

The psychiatrist should convey to the patient and the family that:

Medications are necessary to maintain a symptom-free state

Medication should be discontinued only on doctor’s advice. Stopping treatment without medical advice can result in a relapse soon after marriage

Chances of getting married and maintaining the marriage would increase if medicines are taken as per medical advice, and a symptom free state is maintained

Not taking medicines is not a proof of absence MI. The abnormal behavior would by itself convey the diagnosis

Marriage and MI are not incompatible. Many patients with MI are married and leading good lives. Furthermore, many persons with no MI have not been able to get a suitable match and get married

MI is only a blemish in the personality. Other good qualities can compensate for this blemish

If the problem is serious, a cognitive behavior therapy session, to correct faulty cognition, should be given. This should be followed by booster sessions.

Many women may stop the medication when they develop amenorrhea as no menses means no procreation.

The psychiatrist should:

Explain to the patient that amenorrhoea is the side-effect of the medication the patient was taking and can overcome by altering the medication

Advice the patient about the need for continued medication

Switch to a nonprolactin elevating drug, e.g., aripiprazole, asenapine, clozapine, lurasidone, olanzapine, quetiapine, or ziprasidone, as first choice or add aripiprazole 3–6 mg/day as second choice.[59]

When to marry?

Parents often enquire when they can go ahead with marriage preparations.

The patient should be married after she attains 18 (girls)/21 years (boys) of age

Patient should have recovered well from the acute phase of MI. The recovery should be maintained for about 1–2 years. The patient should preferably be either off medication or maintained on a low dose for about 1–2 years before marriage

It should be explained that the risk of relapse has decreased, it is not zero. Any early symptoms of relapse should be brought to psychiatrist as early as possible for advice.

Improving prospects for marriage

For most parents, career and marriage are major preoccupations. In India, there is preference for working women, when it comes to selecting a partner for marriage. If women with mental is employed in a good job and MI resurfaces, the woman is usually not rejected by her husband and in-laws. However, patients with SMI often lag behind in studies. Side-effects of psychotropic medication increase the problem. Years may pass in getting the patient to resume studies, build up a career, settle in a job, and get a suitable match for marriage. The whole process can be extremely stressful.

The psychiatrist should explain to the parents that:

Getting a suitable match for the child with MI is not entirely in their hands would depend largely on the merits of the child

Thus, during remission, parents should work for improving personality attributes of the patient, which could partially cover the defect of SMI and increase the chances of getting a suitable match

Resumption of studies should be as early as feasible

Improvement of study skills, cognitive enhancement, and career counseling are recommended

Self-help skills, proficiency in domestic chores (e.g., cooking, knitting, tailoring for girls) should be promoted

Better dressing style (better clothes; jewelery, cosmetics for girls) is helpful

Improvement in social skills, along with socialization with friends and relatives when patient is in remission should be ensured.

Disclosure of information to prospective party

Disclosure of information about MI before/at marriage is a sensitive issue. It must be remembered that even when families are informed about the possible adverse effects of nondisclosure, most families would not disclose the same as it would then be difficult to solemnize the marriage due to widespread stigma for MI. Not disclosing the history of MI is conceived as fraud by the other party leading to animosity, separation or divorce.

The patient or guardian of the patient may solicit psychiatrist’s opinion on whether history of MI and treatment should be disclosed. Else, the psychiatrist may be informed that marriage of the patient has been fixed.

“No advice on disclosure, for or against,” should be given by the psychiatrist

“Patient/guardian should decide for themselves about disclosure of MI to the other party”

The psychiatrist may discuss with the patient/family the pros and cons of disclosure versus nondisclosure of the MI of the patient

When informed about settlement of marriage, the psychiatrist may enquire from the patient/family about whether disclosure of MI has been made or not, but should be “nonjudgemental” about the information on disclosure.

Parents may fix the marriage of their sick child by concealing the history of MI and give strict warning to the child to cooperate and not disclose the information to the other party. However, the child may feel guilty and insist that the truth be told to prevent adverse consequences. This can be problematic as experienced by one of the authors. Two patients went into severe depression and committed suicide; one by coming under the train and another by jumping into the Ganges river. One female patient was bold enough to tell the truth to the prospective partner after her engagement. Luckily, the boy did not reject her and the marriage took place.

Guideline

If the matter comes up in the clinic, the psychiatrist can emphasize explain the seriousness of the problem and ensure that there is concurrence on the issue of disclosure between parents and sick child.

Patient/parents may convey to the psychiatrist that the prospective party wants to know about the MI of the patient and request the psychiatrist to provide the relevant information to the party.

The psychiatrist should take written consent, in private, from the patient for revealing information relating to her MI. After obtaining the consent, the psychiatrist should give balanced information to the prospective party, highlighting the positive aspects of the illness/patient.

Prospective party may learn from some other source about possible MI of patient and may come without the patient to know the facts from the treating psychiatrist.

The psychiatrist “should not divulge” the information of MI and its treatment to prospective party without the patient’s written consent

The prospective can be told to enquire directly from the other party about the history of MI.

In Indian culture, consent for marriage is often by proxy (by parent). Legally, even proxy consent is valid. Coercive consent is also not uncommon in India. If the child does not agree and parents do not have a better proposal, they may coerce the patient into consenting for marriage or else play fraud on the child by telling lies to her. The lies could be that relevant facts (such as that patient is currently taking treatment for MI; that this is the second marriage, the first marriage broke because of MI or that the patient has a baby from the previous marriage, and the patient would like to take the baby along with her to her matrimonial home after the second marriage) have been conveyed to the other party. If the coercion is against a female child, it would amount to emotional violence under the PWDVA 2005. However, the Indian paradox is that after marriage, the PwMI generally does not report the matter. However, coercive consent may serious repercussions on the mental health of the patient.

The psychiatrist may tell the parents to provide reasonable information to the patient about the prospective partner having discussions about the pros and cons and then decide together. There should be no coercion or fraud on the patient.

Period between engagement and marriage

During this period, there is increase in the risk of relapse.

During this period, there should be shorter duration of follow-up and patient should be monitored for any re-emergence of symptoms. Necessary changes should be made in drug regiment

Female patient: Folic acid may be added to the drug regimen (if the marriage is not more than 3 months away), and drug adjustments are made to remove any offensive medication (teratogenic) as much as possible

Male patient: Sexual function and potency issues should be discussed. It can be enquired about whether he can masturbate satisfactorily (sexual imagery, arousal, erection, masturbation, discharge, orgasm, and resolution). If there is problem, regarding the same necessary adjustments in the drug regimen can be made.

At marriage: 2 weeks period before and after solemnization of marriage

Patient may be anxious and feel guilty about concealing the history of mental illness from the prospective party

The psychiatrist should see the patient with 2 weeks before the scheduled date of marriage. The psychiatrist should:

Look for any new symptoms and adjust medicines accordingly

Assess patient’s mood and major preoccupations making her anxious

Guilt relating to concealment of the history of MI should be resolved.

The patient may be told that:

“In marriage negotiations no one tells everything, else many marriages would not take place. This is the convention. Courts also accept this. Your spouse may also have hidden many things from you. If you have taken the decision not to disclose your MI, it was after due thought, so better you maintain your decision. If inquiries were made by your spouse about you having a MI and then you did not a reply or gave a wrong reply, you would have erred. As this is not the case, you have erred, neither socially or legally, so there your guilt is unjustified. Get over your guilt. Try to enjoy this occasion the most important event of your life.”

4. One or two cognitive behavior therapy sessions may be given if so required.

Medicines may be stopped or patient may forget to take them

Often medications are stopped by the family of the patients a few days or weeks before marriage because it would be a proof of MI to the other party, or would harm the baby if the patient conceives.

Sometimes parents may forget to supervise drug compliance because of marriage preparations and influx of guests.

During the period of marriage celebrations the duty of giving medicines to the patient may assigned to a responsible person in the family

Strong advice may be given for of continuation of medication

Clear the misconception that woman on medication cannot have a safe pregnancy. There are medications which are reasonably safe during pregnancy.

Planned pregnancy: Female patient

Educate about the advantages of planned pregnancy

Inform the patient when she can conceive and have a safe pregnancy; immediately after marriage of sometime later

Advice on family planning, using a condom. Cooperation of husband becomes necessary for family planning to be effective.

Patient at high risk

Patient on a moderate dose of psychotropic mediations may be considered to have a high risk for relapse in the face of stress of marriage.

Psychiatrist may suggest to the parents that the first stay of their daughter (with MI) at her “sasural” (husband’s place) after marriage should be a short (<1 week). Later, when she improves and stabilizes, she may stay for longer periods. Similarly, the wife of the son (with MI) can be sent back within a week to her “maika” (parent’s place) and may be called back when patient is more stable. Such provisions are possible by dialog between the parties.

After marriage: Female patient

Husband comes to know about mental illness of

It is not uncommon for the husband to strongly suspect or accept that his wife has MI. This usually occurs when the woman sleeps too much, is disrespectful to elders, is slow in domestic chores, is caught red-handed taking medication, or shows clear symptoms of SMI. This is an emotionally charged situation.

Relapse of mental illness in wife at husbands place

Frank symptoms of MI may resurface after a period of few weeks or months of marriage.

In both the situations, husband and in-laws are usually intolerant. Sometimes the husband may call a doctor to examine the patient and get a medical certificate. The usual reaction, however, is to phone her parents, scold them, allege that the woman had MI before marriage, which had been concealed, and they have been cheated. Husband may tell her parents to take the patient and send her back only after she is cured. The parents are usually defensive and may take the stand that the abnormal behavior was because of the cruelty meted out their daughter. The parents of the woman visit the psychiatrist and request the doctor to make a new case sheet, in which past history of MI may not be mentioned. The psychiatrist may be contacted for treatment and advice by the parties.

The psychiatrist should:

Try to have sessions with both parties, jointly and separately

Listen to the parties sympathetically and patiently

Try to understand things from their point of view of the parties

Provide emotional support to both parties

Be nonjudgemental and do not endorse accusations of one party (have cheated by concealing the history of psychiatric illness) or cruelty against the female patient has caused the mental symptoms in the woman

The anxiety of the patient should be allayed by telling the patient and her family, in the absence of her husband, that her medical record pertaining to MI prior to marriage is confidential and would not be revealed to husband without her written permission. A new case sheet of the patient would not be made

If the husband asks for any details of past history, they should not be revealed without the patient’s written consent. Consent from the patient should be “free” and obtained in private. Husband can be told that patient’s consent is required for this. He can enquire directly from the patient

The priority should be to arrange for the treatment of the patient in a safe environment. Generally women feel more comfortable and less threatened at parent’s place

At a later point of time the husband, in the absence of the other party can be told that: (1) it would be wrong to put the entire blame on the other party for concealing the history of MI. Marriage is the biggest event in one’s life, and as such he should have made proper inquiry before consenting for marriage. (2) Outcome of even SMI has improved substantially with modern treatment. Further, the outcome is even better with supportive caregivers (spouse and family). Many married women with SMI are doing well. (3) He could also suffer from a similar illness. (4) MI could have developed in his wife a few years after marriage; so it should not make a big difference. (5) If he marries again, he cannot guarantee that the spouse would never have a MI. (6) If his sister had a MI and was to be married, he would have probably also concealed the history of MI.

Responsibility for treatment of woman with mental illness (maintenance)

It is common to see that, even when the patient lives with her husband at her sasural, nearly always she comes with father or brother for follow-up treatment. The father pays for total the treatment (transport, medication, doctor’s fees, and investigations). The husband and in-laws take the excuse that since the patients brought the illness from her parent’s place, they have to get her treated. It is pertinent to mention that husband is the legal guardian of the patient so such he should take the responsibility of treatment and follow-up. Besides, details of behavior during the follow-up period cannot be obtained from the father or brother and this would affect the quality of care.

The psychiatrist should tell the father/brother that it is the protocol to see the patient with the person (husband/in-laws) with whom the patient is living so that they give details about her behavior

Advise the father/brother that the patient should come on next visit with husband/in-laws

Write on the prescription to come with husband and in-laws on the next follow-up

When husband or in-laws come for follow up: Educate them about (1) the benign nature of MI, (2) patient’s right to take treatment, and (3) if elders in the family have the right to take treatment for chronic ailments (diabetes and hypertension), the patient also has a right to do so. (4) Husband is the legal guardian, and it his responsibility to ensure regular treatment

Attempt to decrease hostility and motivate the husband to take the responsibility of treatment.

Woman continues to take medication secretly for years

For years patient may continue to take medicines secretly because she fears that the moment the truth is revealed husband may leave her. Parents ensure regular follow-up with the psychiatrist, when she visits her parental home, as well as supply of medicines to their sick daughter. The main problem remains, “How and when to disclose the great secret to the husband and in-laws.” (The fact of MI in their daughter)

The psychiatrist should strongly discourage this practice. The difficulties (pros and cons) of concealing the information from the husband/in-laws should be discussed

The patient should be encouraged to disclose the information at an appropriate time

The modus operandi for the same can be worked out by discussion with the family.

Husband repeatedly expresses desire to divorce his mentally sick wife

On follow up the husband may repeatedly express desire for abandoning his wife because of her MI, and also because of court cases against him for restitution of conjugal rights, maintenance, domestic violence, dowry-related harassment.

The psychiatrist may clarify to the husband that:

MI by itself is not a ground for nullity or divorce. Certain other conditions need to be proved to form a ground for divorce. In cases of divorce, each cases are considered in its own merit

Only when there a SMI at the time of marriage, or SMI causes substantial disability or is recurrent can it be considered by for nullity provided the petition is presented within a year of marriage

Even concealment of MI may not be a ground for nullity. Doctrine of caveat emptor is applied

It is the intention of courts to avoid grant nullity/divorce and prevent fracture of the family

In recent court judgments, the good outcome of MI with modern treatment has been considered, and divorce has not been granted (22, 24). (e.g., Ramnarayan Gupta vs. Sreemathi Rajeshwari Gupta 1988 [22]; Kollam Chandra Sekhar vs. KoIllam Padma Latha 2013 [24])

Convey to the husband that the court cases are to pressure him to accept the patient and restore her conjugal rights. Dowry as such is a nonissue, because whatever was given or received was agreed upon by both parties

Psychiatrist should not assist husband in seeking divorce. Confidentiality and interests of the patient should be protected as much as possible

If the personal opinion of the psychiatrist is in favor of the patient, he should clearly convey it to the husband

The decision regarding the continuation of marriage should not be a hasty decision and not during the acute phase of the illness. He should accept the spouse along with her MI.

Repeated pregnancy

Repeated pregnancies to have more children, especially male ones, is common in women with MI to protect the marriage.

The psychiatrist should explain why repeated pregnancies are not desirable:

The mothering abilities of the woman with MI may be compromised

Pregnancy may precipitate the MI. If there is a history of postpartum psychosis the risk is very high

There is always some risk of teratogenicity and of adverse long-term behavioral outcomes on the child if the mother was taking medication just before pregnancy and during pregnancy and lactation

Single child norm may be adopted to control the population of the country.

Partial desertion of the married woman with mental illness

This period of partial desertion ensues after the husband/in-laws come to know about the MI of the woman, who is usually sent back to her parental home. The woman’s family may make desperate attempts to have a patch up with the husband and his family. Parents may offer gifts or money to appease husband, or may approach the local panchayat for justice, or threaten to sue and may even lodge complaints with the police against the husband and his relatives under various acts (The DPA, PWDVA, or of cruelty by husband and relatives of husband 498A) or file petitions for maintenance under The Hindu Adoptions and Maintenance Act, 1956, or under section 125 of the Code of Criminal Procedure 1973. The husband may deny the allegations and petition for nullity of marriage or divorce on the ground of fraud (concealment of MI of wife) and cruelty or desertion. This makes matters worse. With time, the period of stay at husband’s home decreases and that at parent’s home increases till the final day comes when the woman is abandoned for good. While such women may petition for restitution of conjugal rights, generally, husbands petition for grant of decree of divorce.

During this period, the care of the woman is generally left to her parental family. The husband and his family may come just a few times and are usually uncooperative and hostile. They generally do not provide any maintenance to the woman.

The psychiatrist should:

Help the woman and her parents to cope with the stresses faced by them

In serious cases, the woman’s family may be advised to take help from the local panchayat or via the provisions of the PWDVA. A lawyer may be consulted if need be

Not get involved into dowry-related and other legal issues. Focus on prompt treatment and good recovery

Attempt to interview both sides if possible and work on decreasing the hostility on both sides so that some amicable solution comes forth

Embark the following:

Highlight the good prognostic indicators in the woman’s clinical profile

Point out the mistakes committed (intentionally or unintentionally) by both sides

Explain the legal position with regard to the rights of the woman and duties of the husband

Advise both parties not make false complaints to achieve their ends

Explaining the utility and limitations of legal measures

Refer to landmark judgments on divorce in PwMI.

“Each case of MI or schizophrenia has to be assessed in its own merit; schizophrenia is what schizophrenia does” (22).

Husband cannot dump wife of ground of schizophrenia “Schizophrenia is a treatable and manageable disease which can be at par with hypertension diabetes”(24).

Stresses of female patient

During the period of partial desertion, the woman is subjected to various forms of domestic violence. For example, she may be repeatedly denied permission to enter her home (husband’s home). If she manages get entry, she is generally not well accepted. Her mobile phone may be taken away. Critical comments by husband’s relatives and frequent assaults on one pretext or the other, sometime with homicidal threats/attempts, may lead to suicidal tendency. Jewelery may be snatched away; later parents told that she threw it away during her mental fit. Medicines may be snatched from the woman. She is not given any money and not allowed to leave the house, which make matters worse. Domestic violence has a deleterious effect, and illness worsens. Many such women are at risk for suicide and homicide. The women often narrate their horrid experiences to the psychiatrist. For the patient and her parents it is a no-win-no-win situation.

A few women may be lucky as with the fear of being incriminated under the DPA or other laws may reconcile, and the hostility may decrease with time. In many other women, the hostility continues and manifests as domestic violence for many years.

The psychiatrist should:

Focus on the treatment of the woman in a safe environment

Allow the woman to ventilate her feelings, provide emotional support and suggest ways for healthy coping. In serious cases help may be sought under the provisions of the PWDVA

Assess suicidal risk and take the appropriate measures to manage the same.

After marriage: Male patient

Nonconsummation of marriage

However, if consummation does not occur during the first stay of wife with husband after marriage, she may complain to her parents and go back to them and not return. Else her parents may raise the issue (the boy is impotent, and they have been cheated may ask for breakup) in a big way in front of elders. This is very humiliating to the patient and his family and may sometimes consultant the treating psychiatrist.

The psychiatrist should talk to both the parties if possible allay their anxieties

Make necessary adjustments in the drug regimen

Advise treatment for sexual dysfunction as deemed proper.

Request for “certificate of potency” by male married person

A male patient may request for a “certificate of potency,” which he needs to submit to the court in a matrimonial dispute.

Certificate of potency may be provided after carrying out either of the tests.

Potency can be tested in the secluded room at the psychiatrist’s clinic as mentioned above. If erection and ejaculation take place, potency is confirmed and can be certified

NPT test can be carried by the psychiatrist and his staff if he maintains a sleep laboratory at his hospital. Else, patient may be referred to an accredited sleep laboratory for necessary testing.

Desertion of male patient

Usually, the problem is less serious with male patients because the family is there to support him. However, sometimes symptoms may continue because of irregular treatment or due to frequent intake of addicting substances. The wife may tolerate for some time, but later may leave her ailing husband, never to come back again; and she may take away her child with her.

The emphasis should be on optimizing the treatment

After patient improves and remission has been maintained for at least 6 months, the husband/family should make efforts to call the wife and child back. Help from a common relative or friend can also be taken. This will greatly improve the self-esteem of the patient, provide support and improve the outcome.

Continuation of medication

Male patients usually manage to take medicines without the wife knowing about the same. In due course, the wife generally accepts the patient with the illness and cooperates in treatment.

Male patients comes for follow-up without wife

Many male married patients do not bring their wives on follow-up visits despite repeated advice to do so. The reason for this is that they have all along concealed from wives that they have been taking treatment for MI and fear that if their wives learn about the fraud, the wives may be deserted them.

The psychiatrist should convey that concealment of history MI of the patient from his wife is neither in the interest of the patient, nor of his wife, as sooner or later she would know and this may back fire

At an appropriate moment, the fact of MI of patient may be disclosed to his wife

If wife subsequently comes for follow-up and enquires about the details of patients MI, the psychiatrist should not divulge the information without patient’s written consent.

Neglect of male patients

It is not uncommon for women to neglect their mentally sick husbands because of covert rejection. Even when the husband has improves, the woman may go with her children, leaving her husband behind, to parent’s place to attend marriage functions for long periods 15–30 days, without making adequate arrangements at her in-law place for someone to supervise the medication. Consequently, the husband may relapse.

Institute psychotherapy to improve the relations between patient and his wife

If the husband has improved substantially, the wife should take her husband along to social functions. However, if he is not well, she may decide to either not go at all to a family function; or to take her husband along for only a brief period 2–3 days; or go without him; depending on the condition her husband

Whenever the wife goes without the patient, she should ensure that arrangement has been for his care at home.

Separation and divorce

Partial desertions usually culminate in separation and/or divorce. The period of separation is extremely stressful for both the patient and the family. The Parents have spent their life’s savings on the marriage. The case may have continued for years with uncertainty regarding the outcome. The woman is often perceived as a burden by parents, and she feels dejected. The PwMI and family may come to know that the spouse has remarried and that too without divorce, but because of the stigma of MI may not find himself/herself to be in a position to assert.

During the period of separation, concerted efforts should be made for the rehabilitation (personal, social and occupational, and leisure time) of the woman with MI. The family should try to continue the woman’s education and help her to get her job. If this is not feasible, self-employment should be planned by engaging in tailoring, cooking, computer skills or work to generate income. In addition, social and self-help skills may also be sharpened

The psychiatrist has an important duty to inform parties and the court about the defaulting partner so that the latter is not accepted as complainant in a divorce petition

Patient and family should be prepared for either restitution of conjugal rights or divorce

Psychiatrist may have to attend court

The psychiatrist’s intention should be to presents data in a manner that could help to prevent divorce and restore the family

During court proceedings of dowry or cruelty 498 IPC, the psychiatrist may emphasize that the real issue for the husband is “stigma for MI,” because of which the husband wants divorce. On the other hand, the woman has raised dowry and other issues to get her conjugal rights. The gifts (customary gifts) given in the marriage were with mutual consent from both sides

With modern treatment, even SMI has a good outcome. The outcome improves further if the spouse is supportive

Good prognostic indicators of the patient can be highlighted

If divorce is inevitable, it should be accepted gracefully with maximum benefits. The psychiatrist may highlight the treatment and rehabilitation needs of the patient, which are “Rights” of the patient under the MHC Act 2017, and would require finances to be met with the Court may consider these facts and grant a reasonable alimony or maintenance to the woman with MI.

Custody of children

During partial desertion and separation, custody of the child is a major issue. More women with MI, compared to men with MI are deserted. Generally, the desire of the healthy partner prevails.

Female patient

(Ex) Husband abandons the patient but wants the child of the patient:

When the child is retained by the father (husband of the woman with MI) the mother is usually not allowed to have any access to the child, not even by phone. The woman and her parents hope that love for the child, may kindle love for the mother of the child, sooner or later, but this generally does not take place.

(Ex) Husband abandons both the patient and the child of the patient:

Sometimes the fathers abandon both the mother (woman with MI) and the children, who are left with the parents of the mother. Generally, no financial help is provided to the mother to bring up the child. This increases the burden.

Both the situations cited above have a negative impact on the health of the mother. Most cases do not reach the court.

The Hindu law favors the father to the mother in custody matters. Besides, the mentally healthy parent is likely to get the custody of the child rather than the one with MI. Thus, the women with MI are greatly disadvantaged in custody matters. However, the court is flexible, the main consideration being the best interest of the child. It is the responsibility of the psychiatrist to present facts in the right perspective to the patient, family, and the court so that welfare of the child and patient are best protected.

During follow-up, before custody issues have been sorted out, the psychiatrist can apprise the husband or his relatives about the right of the mother to have custody till the child is <5 years of age, and thereafter either full custody or visitation rights as per court order. Based on this, the doctor may advise the husband to either give custody of the child to the mother or grant visitation rights to her

Appearance ii the court.

When called by the court in a custody case.

The psychiatrist should evaluate the father, mother, and child as per the prescribed format and also on what he considers necessary.

The case should be presented in an objective manner.

Following points may favor custody of the child to the woman with MI:

Generally, the husband of the woman with MI, who petitions for divorce. Assigning custody of the child to the father (husband of patient) is unlikely to be in the best interest of the child because if the father could not adjust with child’s mother, it is unlikely that he would adjust with the mother’s child

The father in all probability would bring in a step mother for the child. The problems of step mother are well known. On the other hand, the mother of the child, who is mentally sick, in all probability would not remarry so could be a better custodian of the child

Custody of the child to the mother would give a meaning to her life and result in a better outcome. Good mental health of mother would be translated into better parenting which would be in the interest of the child

If the woman has good support from her parents, it can be highlighted. Good prognostic indicators in the mother should be highlighted

A couple of outcome studies reporting good prognosis of SMI can be cited

Negatives personality traits of husband such as severe to moderate intake of alcohol, irresponsible behavior if present and medical morbidities can also be mentioned.

Remarriage of patient

After the PwMI is divorced, remarriage is considered. The family may like to discuss the plan for remarriage with the psychiatrist.

The psychiatrist should:

Discuss remarriage with the patient and family

Enquire from the family about the main reason for divorce. Advise the family to learn experience and not repeat the mistake

Discuss about the disadvantage of not disclosing a history of MI

Suggest the option of marrying the child with a person who has some deficiency (but not a major MI), who would be more willing accept the child with PwMI.

Opting for the unmarried state

It is common to see parents making desperate attempts to find a suitable match for their child with MI, but many a times, they are unsuccessful. More women than men with MI do not get married. Most PwMI have a strong desire to get married, be loved and be cared for. There is also a social stigma to remain unmarried. The thought that one would have to live for the rest of one’s life with this “double tragedy” is very frustrating. It has a negative effect on psychopathology and may even block the road for rehabilitation.

When several attempts at finding a suitable match fail, the psychiatrist should make the patient and family accept the unmarried state. This is not easy and several sessions over a few years may be required

Cognitive therapy directed at changing unhealthy thoughts, from “marriage is must for girls” to “marriage is desirable, but not a must”; and fostering healthy cognition, “Take life as it is, not as it should,” meaning “If you are married enjoy being married, if you are unmarried enjoy being unmarried.” When unmarried you have more time to pursue activities that interest you

Examples of many successful women who did not marry or lost their husbands soon after marriage can be given.

CONCLUSION

The guidelines presented are to ensure uniform standards of care in the management of psychiatric patients alongside marital issues, keeping in mind the psychosocial norms and legislative provisions.

Final support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.