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 express@expressindia.com
