Indian marriage laws and mental disorders: Is it necessary to amend the legal provisions?

Abstract

Byline: Choudhary. Narayan, Mridula. Narayan, Deep. Shikha, Shivendra. Shekhar Marriage has been, since ancient times, one of the most important social institutions in all societies and it forms the basis of civilization and social structure. Marriage is said to be a contractual agreement that formalizes and stabilizes the social relationship which comprise the family.[sup][1] The anthropological handbook “Notes and Queries (1951)” defined marriage as “a union between a man and a woman such that children born to the woman are the recognized legitimate offspring of both partners.”[sup][2] Leach offered a list of 10 rights associated with marriage, with specific rights differing across cultures, which are: *To establish a legal father of a woman's children *To establish a legal mother of a man's children *To give the husband a monopoly in the wife's sexuality *To give the wife a monopoly in the husband's sexuality *To give the husband partial or monopolistic rights to the wife's domestic and other labor services *To give the wife partial or monopolistic rights to the husband's domestic and other labor services *To give the husband partial or total control over property belonging or potentially accruing to the wife *To give the wife partial or total control over property belonging or potentially accruing to the husband *To establish a joint fund of property–a partnership–for the benefit of the children of the marriage *To establish a socially significant “relationship of affinity” between the husband and the wife's brother.[sup][3] In our country, marriage is regarded as an important and sacrosanct event in an individual's life, and everyone is supposed to get married and have a family so that he can continue his progeny. Marriage is essential not only for begetting a son to discharge his debt to the ancestors but also for performance of other religious and spiritual duties. For every persons, who has a daughter, marrying off the daughters when they achieve the marriageable age is regarded as one of the most sacrosanct religious duty. For Indian women, marriage is one of the most important aspects of her life, and the social status of the women enhances after getting married, whereas remaining unmarried after a certain age is stigmatizing for her.[sup][4] Parents often cough up their life savings, take loans or dispose of their immovable properties to arrange substantial dowry to marry off their daughters.[sup][5] Divorce is not generally acceptable in our society. After marriage, there is even a stronger social and moral compulsion to continue the relationship despite facing difficulties/problems in the marriage.[sup][4] Marriage, Mental Disorders, and Indian Legislation Major mental disorders are listed both as preconditions of marriage and as grounds for divorce. Under Hindu Marriage Act, 1955, conditions in respect to mental disorders (Section 5(ii)), which must be met before the marriage is solemnized, are as follows: *Neither party is incapable of giving a valid consent as a consequence of unsoundness of mind *Even if capable of giving consent must not suffer from mental disorders of such a kind or to such an extent as to be unfit for marriage and the procreation of children *Must not suffer from recurrent attacks of insanity. It is pertinent to point out that the original provision was “neither party is an idiot or a lunatic,” which was changed to the present provision by Marriage Laws (Amendment) Act, 1976. “Recurrent attacks of epilepsy” was also a disqualification for marriage, which was removed by the Marriage Laws (Amendment) Act, 1999. Supreme Court observed that to brand the wife as unfit for marriage and procreation of children on account of the mental disorder, it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a normal married life (R. …