Showing posts with label divorce on grounds of unsoundness of mind of wife. Show all posts
Showing posts with label divorce on grounds of unsoundness of mind of wife. Show all posts

Wednesday, September 25, 2013

Schizophrenia - no ground for divorce: Supreme Court

Dear Colleagues,

The Hon'ble Supreme Court of India has confirmed that Schizophrenia can not be ground of divorce. The Court on the contrary said if the wife is still suffering from the condition, the husband must get her the right treatment by sticking to her treatment plan and make best attempts to get her better. The court clarified that grant of a decree or dissolution of marriage is not in the best interests of either the respondent or her adolescent daughter.

Here is the news from The Hindu


J. VENKATESAN,  September 19, 2013

“It is a treatable, manageable disease, on par with hypertension and diabetes”

Temporary ill-health including schizophrenia, a mental illness, which is curable, cannot be a ground for divorce under Section 13 (1) (iii) of the Hindu Marriage Act, the Supreme Court has held.

A Bench of Justices G.S. Singhvi and V. Gopala Gowda, quoting Vedic scriptures, said, “Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something that cannot be taken lightly.”

Writing the judgment, Justice Gowda: said “Marriage is highly revered in India and we are a nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine…” The partners “must weather storms and embrace sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control, as in the present case [in which], the respondent [Kollam Padma Latha] was unwell and was taking treatment. The illness had its fair share of problems. [But] can this be a reason for the appellant [Kollam Chandra Sekhar] to abandon her and seek dissolution of marriage after a child is born out of their union?” Their marriage was solemnised on May 31, 1995 in Kakinada as per Hindu rites and customs.

Dr. Chandra Sekhar’s appeal is directed against the September 28, 2006 common judgment and order passed by the Andhra Pradesh High Court, setting aside the judgment and decree of divorce granted in his favour by the trial court. The High Court held that there was no positive evidence to show that the respondent had suffered from schizophrenia and even if she had suffered from some form of schizophrenia, it could not be said she was suffering from such a serious ailment. “Schizophrenia is a treatable, manageable disease, which can be put on a par with hypertension and diabetes,” it said after examining evidence.

Accepting this verdict, the Bench said: “The High Court has thus rightly set aside the decree of dissolution of marriage and granted a decree of restitution of conjugal rights in favour of the respondent by allowing her petition.”

Pointing out that the respondent had not only completed MBBS but also had done a postgraduate diploma in Medicine and that she was continuously working as a Government Medical Officer, the Bench said: “Had she been suffering from any serious kind of mental disorder, particularly, acute type of schizophrenia, it would have been impossible for her to work in the post. The appellant-husband cannot simply abandon his wife because she is suffering from sickness.” If he felt that she “is still suffering, then she must be given the right treatment. The respondent must stick to her treatment plan and make the best attempts to get better.” Grant of a decree or dissolution of marriage “is not in the best interests of either the respondent or her daughter, who is said to be of adolescent age.” 

....to read from source click here: The Hindu 


And here are comments appeared in Indian Express titled An Unsound Framework on the judgement from our colleague Amba Salelkar, an advocate and fellow at Inclusive Planet Centre for Disability Law and Policy, Chennai 

Matrimonial law is heavily stacked against persons with disabilities

Mental health activists were pleased with the Supreme Court's recent observation that the mere fact of a spouse having "schizophrenia" was not enough ground for divorce under section 13 of the Hindu Marriage Act. The act allows for divorce if a spouse "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 the petitioner cannot reasonably be expected to live with the respondent". The provision itself is controversial, because it includes both diagnosed and un-diagnosed conditions, which effectively makes a judge the sole authority on whether a person is of "unsound mind" or not. Celebrations were more subdued after a closer examination of the judgment.

The judgment laid undue stress on patronizing the institution of marriage, although that is not the focus of this article. It also showed that the Supreme Court has done nothing but uphold an earlier position, laid down in 1988 in a remarkably well-thought-out ruling by Justice Venkatachaliah in Ram Narain Gupta vs Rameshwari Gupta. The ruling took into account literature on psychiatry and jurisprudence to reach its conclusions. One particular section stands out: "Undoubtedly, mental illness is so dis-valued because it strikes at the very roots of our personhood. This is captured in part by the language we use in describing the mentally ill. One is a hysteric, is a neurotic, is an obsessive, is a schizophrenic, is a manic- depressive. On the other hand, one has heart disease, has cancer, has the flu, has malaria, has smallpox".

The grounds for divorce are heavily stacked against persons with disabilities. Besides "unsoundness of mind", leprosy, which results in disability, still remains a ground — despite being completely curable. Till 1976, epilepsy was also included in this list. The only other "health" concern that the law recognises is venereal disease, which strikes at the very heart of "conjugal bliss" and may accompany ground one: adultery.

The legislature, however, did not intend to make "unsoundness of mind" an easy escape route. As Venkatachaliah points out, "If the mere existence of any degree of mental abnormality could justify dissolution of a marriage, few marriages would, indeed, survive in law". The qualification that the petitioner could not "reasonably be expected to live with the respondent" was in the statute books. Then why did the Supreme Court have to reiterate its own position, in a case with identical facts? It does seem to repeat itself quite often, of course, but this instance is significant. Just two years ago, the principal judge of the family court at Chennai stated that 40 per cent of divorce cases before the Chennai court involved allegations of unsoundness of mind.

The experiences of persons with disabilities show that labels, bad enough in themselves, come with a whole set of repercussions. For example, the Reserve Bank of India specifies that persons covered under the National Trust Act, that is, those with cerebral palsy, "mental retardation", autism or multiple disabilities, require a guardian, appointed under the act, to open a bank account. That they may be competent to exercise legal capacity is not even a remote possibility. Every single day, persons with psycho-social disabilities are held incapable of being a spouse, or a parent, by trial courts across the country. Few of them have the facility to move the high courts in appeal, fewer still can knock the on doors of the Supreme Court for justice.

No matter how well intentioned and well drafted the relevant legislation is, its poor and misguided implementation has resulted in discrimination. This should be a cause for concern and reconsideration among policymakers. As a signatory to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), India is obliged to implement Article 23 of the convention — the right to family of persons with disabilities, as well as Article 12 — recognition of legal capacity. In a UNCRPD-compliant framework, the ipso facto granting of divorce on grounds of "unsoundness of mind" would not even be possible. In fact, a person with a psycho-social disability should be allowed to file a petition for divorce on grounds of insufficient care by their spouse — this may come under the purview of the recognized "mental cruelty".

As long as there is a discriminatory provision against persons with psycho-social disabilities, there will be the possibility of misuse. This week's ruling, as well as contemporary records of the experiences of persons with disabilities, underline the fact that things have not changed in the decades between the two judgments. Matrimonial law in the context of persons with disabilities — whether it is the law itself, procedural aspects, the training and sensitivity of judges — needs to be scrutinised and reconsidered, but only after all preconceived notions are left at the door.


To read from source click here: Indian Express

Key Words: Right to Family of persons with disabilities, Legal Capacity of persons with disabilities, Section 13 of Hindu Marriage Act, psycho-social disabilities, UNCRPD, Mental Illness or unsoundness of mind as ground of divorce, 

Tuesday, July 2, 2013

Judges turn the tables on Husband seeking divorce on grounds of Mental illness of wife


Dear Colleagues,

Striking a gender equality note, the Supreme Court turned the tables and asked the husband whether it would have granted divorce to a woman from her husband, who on developing some mental disorder had become completely dependent on her, if she promised a huge sum as permanent alimony! Quite an interesting read and also indicates the increasing trend of more matrimonial cases reaching courts seeking divorce in name of mental ilnesses of the spouse... (read wives with unsound mind) ! 

SC strikes gender equality note in grant of divorce

Dhananjay Mahapatra, TNN | Jul 2, 2013, 04.28 AM IST

NEW DELHI: Irretrievable breakdown of marriage, coupled with promise of large amount of money as permanent alimony, has been cited by rich and powerful men to seek divorce from their wives when all was not well in the marital relationship. 

Striking a gender equality note, the Supreme Court on Monday turned the tables and asked whether it would have granted divorce to a woman from her husband, who on developing some mental disorder had become completely dependent on her, if she promised a huge sum as permanent alimony. 

The case related to Darshan Gupta and Radhika Gupta, who married when they were barely out of their teens in 1997. Radhika's first pregnancy was terminated due to medical reasons. The second pregnancy was again a very complicated one and the child had to be delivered through Caesarian section. She remained unconscious for a long time and developed serious mental disorder. The child died eight days after birth. 

Though she was treated in reputed hospitals, she allegedly remained mentally ill. The husband claimed separation from her since 2002, breakdown of marriage and offered a large sum of money as permanent alimony to seek termination of marriage. 

A bench of Justices P Sathasivam and J S Khehar rejected the husband's plea and wondered whether a similar request by a woman would have been entertained by the apex court for grant of divorce from a husband who developed some mental disorder. 

"In the context of doing justice, it was suggested that the appellant (husband) would be ready and willing to pay the respondent (wife) whatever was considered appropriate by the Supreme Court. We are informed that the appellant is financially well to do," the bench said. 

"We would, in our endeavour to determine the issue in hand, examine the matter by reversing the roles of the parties. We will examine the matter as if the wife had approached the family court seeking divorce, on the ground that her husband had suffered brain damage leading to cognitive deficiencies. Yet, despite the said deficiencies, his working memory had returned to 'near normal' after treatment. And his mental condition was such that it would not have any effect on his matrimonial obligations," the bench added. 

"And the wife's family is agreeable to pay an amount to be determined by this court (just as the husband Darshan Gupta has offered), so as to enable their daughter to break away and find a more suitable match. Should she have been granted freedom from her matrimonial ties, in the given facts, in order to do complete justice to the parties? We would ask ourselves whether the husband would have accepted such a plea, in the facts denoted above," it further said. 

"In such a situation, if this court had, in exercise of its jurisdiction under Article 142 of the Constitution of India, granted compensation to the husband, and had dissolved his marriage on the pretext of doing complete justice between the parties, would the same be acceptable to the husband? We have no doubt in our mind that on a reversal of roles, the husband, without any fault of his own, would have never accepted as just the dissolution of his matrimonial ties, even if the couple had been separated for a duration, as is the case in hand," Justice Khehar, while authoring the judgment for the bench, said.

Source: Times of India