Chennai: With the Central government recently notifying the Personal Amendment Act 2019 to remove leprosy as a ground for divorce, Deccan Chronicle reached out to experts to know their views considering the increasing awareness about mental health and the need for eradication of all stigma attached to mental illness.
Advocate Akila RS points out that marriage is basically a contract, and for any contract to be entered into, according to the Indian Contract Act 1872, a person needs to be of sound mind. “The person should be able to understand the consequence of what he/she is doing. The law comes from a general understanding of contract. However, a review is required.”
Talking about voidable marriage, Akila points out, “In a situation where a person suffers from serious mental illness and this fact is deliberately concealed before marriage, the spouse can get the marriage annulled because this is basically a fraud committed on the other spouse.”
Mental illness of a person itself is not a ground for divorce; according to law, if a person has mental disorder of a kind that the spouse cannot be reasonably be expected to live with them, then divorce may be granted. Akila goes on, “The threshold of mental illness/disorder in the context of divorce as per Indian laws, is very high. The mental disorder has to be of such extent that the partner cannot live with him/her. There are stages of severity and the court needs to decide, depending on the case in hand. The problem is that lawyers and judges are often not sensitised or sufficiently aware of mental health issues.”
What if the petitioner indulges in exaggeration of a mild mental illness of the partner? Akila asserts, “It does happen. In India, divorce can be obtained only on fault grounds -- the person who approaches court has to show some fault of the other, unless both parties mutually agree to separation. So exaggeration is common in cases of divorce. Whether a person has mental illness to the extent that warrants dissolution of marriage is subject to trial, which is a safeguard. The court will examine whether the person with mental illness is capable of leading a married life.” Akila adds, “It is important to consider the informal barriers to accessing court that the person with mental illness faces. Does s/he have monetary resources and enough social support to defend a case in court?”
“We still have a long way to go to make marriage laws a bit more fair,” adds Akila, who staunchly believes the stigma around mental illness needs to go.
Activist Vaishnavi Jayakumar has another perspective. She asserts, “We need to remember that most laws with restrictive provisions in the social sphere have roots in colonial times. Hundred years ago, the law and its language reflected the understanding of people of that time - so restrictions abounded for a variety of disabilities, with a blanket assumption of incapacity as far as 'idiots, lunatics and deaf-mutes' went. There has been some evolution in the law in recent times - former stigmatised conditions like epilepsy and leprosy have been removed as grounds for divorce or nullity of marriage. But mental disorder still persists, and finds a mention not merely in the divorce section of the law, but in the qualifying conditions and in the annulment section. “
The activist staunchly believes that keeping mental illness alone in the clauses is discriminatory and is based on outdated notions.”Removing leprosy and epilepsy as grounds for divorce was long overdue; it's unfortunate that the reference to mental disorders was not removed at the same time, despite the fact that with the variety of treatments and interventions available today, millions of people living with mental health issues are leading fulfilling, productive lives.” However, Vaishnavi agrees that there might be a variety of conditions and care-giving of the individual may prove to be difficult and stressful. “But then what isn't? Who can predict being caregiver to a person with cancer or a chronic disease? What about familial stress caused by alcoholism? Mental disorders span a vast spectrum of conditions, each of which can be experienced at different times in varied severity. Most are manageable with a supportive family, medication and therapy. Thankfully, the courts largely recognise that and refuse
divorces based on the mere presence of mental disorder but to the extent that the petitioner cannot reasonably be expected to live with the respondent as the Section 27E of Special Marriages Act cautions. But it's best to stop the practice of hiding information of a particular condition before a marriage takes place, either because of stigma scuttling prospects, or due to the bizarre belief that the illness will go on its own once the individual is married! That does not help the problem. Isn't it only natural to expect that along with values, both partners also bring pre-existing and potential challenges to the marriage? Not to mention baggage! Isn't that what marriage vows are all about in any case?”
It may be noted here that discrimination only on the basis of mental disorder amounts to violation of the United Nations Convention on the Rights of Persons with Disabilities which aims at non-discrimination and ensuring full enjoyment of equal rights for people with disabilities. Most importantly the UNCRPD also talks about “reasonable accommodation” and the right of a diff-abled person to “respect for his or her physical and mental integrity on an equal basis with others.” Article 23 of the UNCRPD is crucial, it talks about their right to home and family. Author and mental health advocate Jayashri Ramesh Sundaram shares her thoughts, “If you segregate mental illness from other forms of disabilities, the problem arises. So if you say mental illness is a disability, it will need a lot of awareness because people think this is something that can never be cured. Reality is contrary to this notion. Be it schizophrenia, bipolar disorder, anxiety or depression- there are resources you can rely on for a solutio
n.” However, Jayashri believes there equally lies a responsibility of an individual towards his/ her spouse as marriage is a contract between two individuals. She asserts,” As much as I support and understand people with mental illness and all the stigma attached to it, we have to talk about marriage in terms of an institution - two people living together. We have to respect marriage as a social contract. It is also important to understand that the person can also have a form/ an extent of the disorder where he/she gets aggressive on the other person. But if we look at it from the social perspective, we have to first look at the support available that can be provided to the person with mental illness. I hope that divorce is not the only option. We have to see whether s/he can be cured. Now for the spouse arranging medical and other kind of support and not immediately heading for divorce - our society has a long way to go, considering the stigma attached to it. First people need to be educated more about
mental health. People with depression might not even be aware that they have it. We have to acknowledge that there is something called mental illness.” “There is a lot of denial involved. It is important for us to make it known to the other person that my son/ daughter has this illness,” Jayashri points out with regard to instances of concealment of 'mental illness' of one party from the other at the time of marriage. She also stresses the need for counselling that might help a partner understand the issue better, if his/her spouse has any mental illness. “The vague, random use of the term mental disorder is very problematic. There we need more explanation.””Right now as far as 'mental disorder of such a kind or to such an extent as to be unfit for marriage' clause is concerned, I think it should be there. I really hope that courts, as they have already been doing, analyse cases on their own merit,” asserts the young author, adding, “it
becomes a problem only when mental disorder is used as a tool for seclusion of an individual.”...