Tuesday, 31 December 2013

Matrimonial law is heavily stacked against persons with disabilities

An unsound framework

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 undiagnosed 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 patronising 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 disvalued 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 psychosocial 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 psychosocial 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 recognised "mental cruelty".

As long as there is a discriminatory provision against persons with psychosocial 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.

The writer is an advocate and fellow, Inclusive Planet Centre for Disability Law and Policy, Chennai

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