INSANITY AS A GROUND OF DIVORCE?

INSANITY AS A GROUND OF DIVROCE?

Insanity is frequently described as a mental disorder or mental disability, for a person being in such a state that they are unable to comprehend the general rules and regulations that any other prudent or reasonable man might be able to comprehend, similarly mental illnesses of such a kind, that their central nervous system does not function in accordingly. In a stringent manner, with accordance of the law, insanity is usually considered as unsoundness of mind, or lack of ability to understand the provisions of law on their own and thus, having an incapacity to enter into legal transactions, relationships, contracts etc.

There were various tests used to declare a person legally insane such as Wild Beast test[1], The Insane Delusion test[2], and “test of capacity to distinguish between right and wrong[3].” These three tests laid the foundation for the landmark Mc Naughten rule.

In Hindu marriage act 1955, in section 5(2) it specifically mentions that at the time of solemnization of a marriage, either of the party to the marriage are of unsoundness of mind, or has a mental disorder to such an extent that they would not be able to give their full and free consent to the marriage, or would not be able to procreate children, would be rendered as void.

Section 5(2), of Hindu marriage act 1955[4], states that “at the time of the marriage, neither party—

  1. is incapable of giving a valid consent to it in 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; or
  3. has been subject to recurrent attacks of insanity”

Although, there must be a grave emphasis on the term “at the time of solemnization of marriage”, the marriage would only be considered null and void if at the time of marriage, they are suffering from such a disorder or incapability. If either of the party to the marriage, after the solemnization of marriage have been diagnosed with any such mental disorder, then the marriage on the provisions of sec. 5(2) would not be construed as void. Although, the burden of proof or onus of proof to state the facts of the spouse having any mental disorder of deficiency at the time of marriage always is stumped on petitioner.

It is necessarily important to mention that insanity can be a ground of divorce, as it is mentioned in the section 13(3) of Hindu marriage act 1955. Section 13 of Hindu marriage act 1955 states that the petition of divorce can be filed by either of the parties to the marriage on the given grounds, and the section is inclusive of inanity as ground of divorce.

Section 13 of Hindu marriage act 1955[5] states that “Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

(iii) 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”

To sum it all up, insanity is a ground of divorce as the theory of frustration of marriage arises, and the marriage is impossible to manage with the ill spouse. Although to file a petition of divorce on the ground of the insanity it is pertinent to note the fact that, the mental disorder or the incapability must be of such an extent that is incurable in nature, and the spouse are not expected to live together and suffer through other being mentally ill.

The term metal disorder in section 13(3) of the Hindu marriage act 1955, has been given a wide connotation and it include incomplete development of mind, psychopathic disorder which include abnormally aggressive behavior, and it also include schizophrenia.

To safely conclude, during the time of marriage if any of the spouse were suffering from any sort of mental illness, the marriage prima facie would be deemed as void. Although any disorder diagnosed after the solemnization of marriage, can be ground of divorce given that the mental disorder is incurable in nature.  


[1]  R. v. Arnold. 1724, 16 St.Tr.695. Also see Lord Ferrer’s case 1760, 19 St.Tr.885.

[2] Hadfield Case. 1800, 27 St.Tr.128.

[3] Bowler’s case. 1812, 1 Collinson Lunacy 673.

[4] Bare act, Hindu marriage act, 1955. Section 5(3)

[5] Bare act, Hindu marriage act, 1955. Section 13(iii)

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