MARRIAGE , MENTAL HEALTH

AND
INDIAN LEGISLATION

BY
Dr.S.NAMBI
ANCIPS 2005.- CHANDIGARH
Dr.Sarda menon Salutation to my Dr.O.Somasundram

Gurus

Dr.A.V.Rao Dr.M.Vaidyalingam
 MARRIAGE – A SOCIAL
INSTITUTION
• A social institution since ancient times
• “Marriage consists of the rules and
regulations, which define the rights, duties
and privileges of the husband and wife”-
Georgea Lundberg
• Marriage is a contractual agreement,
which formalises and stabilises the social
relationship, which comprise the family
 FUNCTIONS OF MARRIAGE

• Marriage is the epicenter of the family law

• Six social functions of marriage
1. Regulation of sexual behaviour
2. Reproduction
3. Nurturance and protection of children
4. Socialization
5. Passing of the ascribed – such as race
 CONCEPT OF HINDU
MARRIAGES
• MARRIAGE IN THE SHASTRAS VIEWED AS
A SACRAMENT
• Eight forms of HINDU MARRIAGES
1. Brahma
2. Daiva DHARMIYA CATEGORY
3. Avsha
4. Praju patya
5. Asura
6. Gandharva ADHARMIYA
7. Rakshosa and CATEGORY
8. Paisacha
 CONCEPT OF HINDU
MARRIAGES (CONTD.,)
• AIMS OF HINDU MARRIAGE

1. Religious Duty (Dharma)

2. Progeny(Praja) and
3. Conjugal Love (Rati)
 MARRIAGES IN DIFFERENT
CULTURES AND COMMUNITIES

• HINDU MARRIAGE
• MUSILM MARRIAGE
• PARSI MARRIAGE
• CHRISTIAN MARRIAGE
• SELF RESPECT MARRIAGE IN TAMILNADU
• WIDOW MARRIAGE
• SAME SEX MARRIAGE
• CHILD MARRIAGE
 CHANGING CONCEPT OF
MARRIAGE IN INDIA
• Traditional concept of marriage is getting
changed.
• Hindu marriage today has assumed the
nature of a contract for the material benefit of
the parties concern.
• “Marriages are made in heaven” – old saying
Today
Marriages are fixed through matrimonial
columns; matrimonial.com and internet chat.
 MUSLIM MARRIAGES

The joint affirmation of the Nikha –

Nama or the marriage contract is of
prime importance.
Most Muslims prefer marriage among
relations
The amount of ‘Mehr’ is a compulsory
amount of money given to the brides
family by the groom’s family.
 CHHRISTIAN MARRIAGES
• Christian wedding is a declaration of love
between two people.
• The announcement of the wedding is an
essential element.
• The wedding take place in church.
• The priest perform the wedding ceremony
and asks the bride and the groom to take
their marriage vows following which they
exchange rings and are pronounced ‘ MAN
and WIFE’.
 SELF RESPECT MARRIAGE
• Self respect marriage in Tamilnadu was
introduced by the social reformer –
Periyar E.V.Ramasamy.
• The basic principles are : Marriage is a
personal contract between a man and
woman, nothing is sacred , sanctified ,
religious or divine. Contracts upholds
equality of sex.
 CONSANGUINEOUS MARRIAGES
• Consanguineous marriages are very common
in south India.
• Association between consanguineous
marriages and mental disorders are reported.
• A study at IMH- Chennai (2004) reveals , out of
147 patients suffering from major mental
disorders, 36% born out of consanguineous
parents. Mostly second-degree consanguinity.
• Out of 100 mentally retarded children
attending IMH Chennai OP 28% born out of
consanguineous marriage.(2005)
MARRIAGE AND DIVORCE
• One half of all couples married in
US are now divorced.
• Increasing greatly in India also
around 5-7%.
• Many people in the West prefer to
live togther instead of marrying
 FACTORS RESPONSIBLE
FOR DIVORCE
• Divorce causes disruption of family life.
• Factors responsible for divorce are:
 Social change
 Progressive liberalism and individulism.
 Change in values – from moral to material
 Urbanization
 Changing status of woman – her
opportunities for education, employment
and independence.
MENTAL ILLNESS, MARITAL STATUS
AND GENDER
Source of study Marital status

Single Married Widowed/Separated/Divorc

ed
Nandi et al (1975) 4.58% 20.17% 35%

Sethi et al (1972) 4.90 1.67 2.15

Sethi et al (1974) 4.9 6.61 13.71

Thacore et al 6.6 10.30 19.55

(1975)
Total 5.25 9.69 17.60
 SCHIZOPHRENIA AND
MARRIAGE
• Single males appear to be over
represented in schizophrenia samples
• A low marital rate for schizophrenia
patients – a lower rate in women than
men.
• Poor clinical course and low
socio-economic conditions among the
divorced.
MARITAL STATUS AND OUTCOME
OF SCHIZOPHRENIA.

• FACTORS ASSOCIATED WITH GOOD

MARITAL OUTCOMES:
 Presence of children
 Shorter duration of illness at inclusion and
presence of auditory hallucinations at
intake
• FACTORS ASSOCIATED WITH POOR
MARITAL OUTCOMES
 Being unemployed
 A drop in social \ economic level
 Presence of flat affect and self neglect.
 MARITAL STATUS , MENTAL ILLNESS
AND GENDER DIFFERENCE – IMH ,
CHENNAI STUDY
• THE FINIDNGS ARE :
1. The attendance in a mental hospital outpatient
department, persons suffering from schizophrenia
outnumber bipolar disorder ( 10:1)
2. Majority of the persons seeking help are male (M : F
= 3 : 2)
3. Nearly 26% of male population and 6% of females are
singles. 30% of males and 23% of females are
married.
4. About 10% of this patient population consisting of a
major mental disorder are divorced / separated.
 MARRIAGE AND
DEPRESSION
IN MEN :
• Married men have lowest rate for
depression.
• Separate/ divorced men have the highest
rate for major depression.
IN WOMAN :
• The association is less clear.
• Same findings applies for women and men
(ECA STUDY)
 MARRIAGE AND
DEPRESSION
• The stress associated with
divorce / separation causes the
likehood of a depressive episode.
• Bipolar I - more common in
divorced / single persons.
• Children of divorced parents are
more prone to develop depression
 ALCOHOL AND MARRIAGE
• Alcohol abuse causes social disruption in
the family and can increase marital and
family tension.
• Divorce rate among heavy drinkers is very
high.
• Children of heavy drinkers are at a high risk
of developing emotional and behavioural
problems and poor academic performance.
• 50 – 60 % domestic violence in India is due to
substance abuse, especially alcohol.
MARRIAGE AND SUICIDE

• Social isolation : A common factor for suicidal

tendency.
• Divorced/unemployed /living alone - a risk of
suicide behaviour.
• About 2/3 of patients committed suicide have
some marital problem (Bancraft 1977)
• 25% of persons committing suicide are
unmarried.
• Suicide is highest in the first year of marriage
 50% due to marital and family problems.
 8% dowry related.
 MARRIAGE MENTAL
ILLNESS AND INDIAN
LEGISLATION
• Every country and every religion has
its own personal law.
• In India, it is a constitutional mandate to
secularism, all homogenise the family
law (ARTICLE 44 OF CONSTITUTION
OF INDIA)
• In India, there is a need for enactment
of a uniform code – which is ideal.
 MARRIAGE AND INDIAN ACTS
1. The special marriage act – 1954
2. The Hindu marriage act – 1955 with
amendment
3. The dissolution of Muslim marriage act –
1939. The Muslim women protection of
rights on divorce – 1986.
4. The Parsi Marriage and divorce act – 1936
5. The Christian marriage act – 1872
6. The Indian divorce act – 1869
7. The family courts act - 1984
LEGAL ISSUES IN MARRIAGE
Questions with reference to marriage;
• Is the marriage a valid one?
• Is it possible for the relationship to continue?
• The individual who is not capable of
comprehending what is happening to him or
her, cannot give consent for marriage.
• Nullity of marriage means that the marriage is
held null and void ie., a valid marriage did not
take place at all.
• Divorce means the marriage was a valid one :
but relationship cannot be continued.
 UNSOUNDNESS OF MIND AS
AFFECTING THE CAPACITY TO
MARRY – MUSLIM LAW
A person of unsound mind cannot
contract a marriage and such a marriage,
if contracted is void. However, if the
guardian of the person of unsound mind
considers such marriage to be in his
interest and in the interest of society and
is willing to take up all the monetary
obligations of the marriage, then such a
marriage can be performed.
 Unsoundness of Mind as a
Ground for Divorce – MUSLIM
LAW
• Marriage can be dissolved by divorce by the parties
without recourse to court and on certain grounds by
recourse to court.

•“TALAQ” must be for a reasonable cause and must be

preceded by an attempt of reconciliation.

•A Muslim husband of sound mind may divorce his wife

without assigning any cause by pronouncing “TALAQ”

•A Muslim woman can seek divorce on the ground that

her husband has been insane for a period of two years.
 UNSOUNDNESS OF MIND AS A
GROUND FOR DIVORCE -PARSI
MARRIAGE AND DIVORCE ACT
•Respondent 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 him.

•That the defendant was of unsound mind at the

time of marriage and has been habitually so up
to the date of the suit.
•Unsoundness of mind is not a ground for
annulment
•Impotence is a ground for annulment
CHRISTIAN LAW OF MARRIAGE AND
DIVORCE – Indian Divorce Act
NULLITY OF MARRIAGE:
• The grounds for nullity as per IDA sec 19 impotence
, lunatic or idiot are the two among five causes for
nullity.
DISSOLUTION OF MARRIAGE: IDA amended by act
No.51 of 2001. Unsoundness of mind is a ground for
divorce – it must be incurable and it must be present
for 2 years .
Christian wife has some exclusive ground for divorce
rape, sodomy and bestiality.
Divorce by Mutual consent is now possible for the
Christians.
 UNSOUNDNESS OF MIND AS
AFFECTING THE CAPACITY TO
MARRY
The Special Marriage Act 1954
1. Is incapable of giving a valid consent as a
consequence of unsoundness of mind or
2. Though capable of giving a valid consent has
been suffering from mental disorder of such
a kind or to such an extent as to be unfit for
marriage and the procreation of children.
3. Has been subject to recurrent attacks of
insanity .
4. Impotence
Unsoundness of Mind as a Ground
for Divorce – SPECIAL MARRIAGE ACT

• That the respondent has been incurably of

unsound mind or has been suffering
continuously or intermittently from mental
disorder of such a kind and such an extent that
the petitioner cannot reasonably expected to
leave with the respondent (sec 27(1))
• As per section 23 judicial separation is possible
based on the above mentioned ground (27(1))
 UNSOUNDNESS OF MIND AS
AFFECTING THE CAPACITY TO MARRY
HINDU
MARRIAGE ACT
A Hindu marriage is voidable if either party.
(i) Is incapable of giving a valid consent as a
consequence of unsoundness of mind or
(ii) Though capable of giving a valid consent has
been suffering from mental disorder of such a
kind or to such an extent as to be unfit for
marriage and the procreation of children.
(iii) Has been subject to recurrent attacks of insanity.

B Impotence
 UNSOUNDNESS OF MIND AS A
GROUND FOR DIVORCE – HINDU
MARRIAGE ACT

• That the respondent has been incurably of

unsound mind or has been suffering
continuously or intermittently from mental
disorder of such a kind and such an extent that
the petitioner cannot reasonably expected to live
with the respondent (sec 13(1))
• As per section 23 judicial separation is possible
based on the above mentioned ground (13(1)(iii))
• Institution of suit
• Nullity – with in one year
• Divorce after 1 year
 MENTAL ILLNESS AND
MARRIAGE – LEGAL VIEW
• Legal insanity is different from
medical insanity.
• It is not mere presence of symptoms,
but inability to manage affairs is
essential in the legal view.
• Slight or occasional deviation from
normalcy will not amount to legal
insanity.
• As per law procreation means more
than giving birth; it includes looking
after children also.
 22

FAMILY COURTS ACT 1984

 To promote conciliation in and secure speedy
settlement of disputes related to marriage and
family affairs.
 Jurisdiction - validity / Nullity of marriage /
divorce/ maintenance, custody of children
property, adoption etc.,
 Informal proceedings in-camera to maintain
confidentiality
 Assistance of legal expert if required
 Counsellors for reconciliation
 Free legal aid for weaker sections.
 NEED FOR A CHANGE IN THE
ATTITUDE OF LEGISLATION AS
WELL AS PUBLIC.

• The law should perform a promotive and

facilitative roll.
• Past H/O mental illness should not be a bar to
marriage
• Failure to disclose past H/O illness or treatment
would not amount to suppression of the fact.
• Laws are generally protecting the family
system.
• Law alone cannot be a panacea to many of our
social problems, We need change in the
attitude of society.
 CONCLUSION
PROTECT THE INSTITUTION OF MARRIAGE
• “It is the duty of the court to make efforts
for settlement in matters concerning the
family” (Rule no.3 of the order 32 a of
civil procedure code).
• Protecting and preserving the institution of
marriage and preventing the fracture of a
family is the intention of the law makers
as well as medical health professionals
Thank you