Chennai Lawyer


Section 13 of the Hindu Marriage Act determines several grounds for divorce based on fault theory and Insanity is one among them. Though there is a strong moral compulsion to pursue the marriage even after a lot of difficulties, when it is not possible to stay together, there are few provisions available in law. In few circumstances like major mental disorders, it is even a precondition to marriage. For Indian women, marriages are one of the most important duties and parents see this as a religious duty to be carried away. Due to this the mental disorders faced by the parties are not being disclosed. Therefore, Conditions regarding mental disorders stated in Section 5(ii) must be met before the marriage.

  • Neither party is incapable of giving valid consent as a consequence of unsoundness of mind
  • Even if capable of giving consent, one must not suffer from any mental disorder of such kind or to such an extent as to be unfit for marriage and the procreation of children
  • Must not suffer from recurrent attacks of insanity.

The marriage can be held null and void with the above three grounds. It can also be considered a void marriage if the wife and husband have not consummated because of the mental disorder. Relief to the petitioner is granted in these cases after the marriage.  

The term, “insanity,” evidently covers all forms of insanity irrespective of the intensity and character of the mental disorder. The term mental disorder means mental illness, incomplete development of mind, psychopathic disorder or any other disorder or unsoundness of mind which includes schizophrenia. The expression “psychopathic disorder” is a persistent disorder or disability of the mind which often results in abnormally aggressive or seriously irresponsible conduct on the part of the other party. It requires sensitive medical care or treatment. However, importance has to be given according to the impact and effects of the disease. In general the term “mental disorder” includes many disorders ranging from minor anxiety issues to major disorders such as schizophrenia. These factors were considered important before the marriage to lead a peaceful life

The original provision with words such as “Neither party is an idiot or a lunatic” was changed after the amendment of the marriage laws act, 1976. These provisions are incorporated in law to not to brand the wife as unfit for marriage and procreation of children on account of the mental disorder, and the Supreme court has said that it needs to be established that the ailment suffered by her is of such a kind or such an extent that she can’t lead a normal married life[1] Recurrent attacks of epilepsy were also a disqualification for marriage, which was removed by the amendment of the Marriage Laws Act, 1999.


It is said that if the petitioner cannot reasonably live with the respondent due to continuous mental disorder and madness, then the petitioner can get a divorce under this ground. In a case, the Supreme Court held that in schizophrenic mental disorder, the petitioner should prove not merely the said mental disorder, but also establish that account that the petitioner could not reasonably be expected to live with the respondent.[2]

Although these diseases are curable, recurrent attacks of insanity and other mental disorders are ground for the nullity of marriage. The parties affected by this disease can lead a normal life but to lead a matrimonial life, is quite difficult as it involves the other party to suffer. It was discovered in a case that the spouse was so cold and sub-zero and apprehensive on the first evening of marriage as not to have the option to cooperate in a sexual act. That spouse was discovered incapable to deal with homegrown machines. She fizzled to clarify the direction of peeing within the sight of all relatives. The court held that the spouse was experiencing schizophrenia, and it was held to be the nullity of marriage.[3] People generally do not convey all the hidden facts about the prospective bride, or the groom and concealment of those facts about the person are not considered a fraudulent act. The history of mental illness would be no bar to marriage and failure to disclose such history or the fact of treatment would not amount to suppression of material fact.

Each case of schizophrenia has to be considered on its merit.[4]  Divorce can also be obtained if the defendant, at the time of marriage was of unsound mind, and the plaintiff was ignorant of the fact and the defendant has been of unsound mind for two years upward[5]. Therefore one of the spouses can seek divorce under the ground if the disease is incurable and has been prolonging for more than two years. When a person is not fit to be married because of insanity which involves the ability to procreate children, then this can be a valid ground for divorce. But to decide that the Supreme Court had observed that to name the wife as unfit for marriage and procreation of children on account of the mental disorder, it needs to be established that the ailment suffered by her is of such a kind or such an extent that she can’t lead a normal married life[6].

Why is mental illness still a ground for divorce?

It is pertinent that epilepsy was removed from this list by an Act of Parliament in 1999. During the debate on the bill, it was pointed out that epilepsy and insanity are not disorders to be equally weighed. It is inhumane to treat people with epilepsy since 80% of the cases of epilepsy are treatable. However, if that viewpoint is taken then an even greater percentage of the causes of mental disorders are treatable, and patients can live a normal life with proper treatment.  

But there are severe stages of the disorder that the court has to decide on a case to case basis. Courts discretion works differently on each case knowing and being aware of the mental health issues and how it affects the parties. Manic-depressive insanity is considered to be a mental affection characterized by alternating phases of morbid depression and exaltation. They may last for a phase and a variable time, but each attack may be followed by a complete restoration of normal mentality.  Therefore, if the petitioner who wants a divorce should show that the mental illness of the other person is so severe that a marital life cannot take place after that stage. Sometimes exaggeration from the side of the petitioner takes place and in every case to ascertain the level of severity, the court will look into the details as to what extent it warrants dissolution of marriage.

Is amendment necessary?

There has been a tremendous evolution in law recently where the terms epilepsy and leprosy were removed from being used as a ground for the dissolution of marriages. A vast spectrum of mental disorders can be easily cured with the help of medication and therapy. Mental issues under the grounds of divorce may be discriminatory despite so many medical treatments available.

Therefore, to make this right, the law puts forth certain criteria that mental illness in itself does not give the mandatory right to file a divorce but only when the other spouse is not able to live with a person having an extreme mental disorder and when it cannot be cured easily. Though it is not right to deny the rights of a person due to some mental disorder, the protection of sane members of the family should also be taken care of. So cohabitation with an insane or otherwise mentally defective person will not only affect the relationship but places the life of the sane party in jeopardy.

There are stages of insanity where with regards to some couples, the understanding might be very good but still, they cannot procreate a marriage. So this ground makes sense when cohabitation within the couple is been taken by one party because of these disorders. A physical intimate relationship does not exist. So divorce can only be granted in cases of outermost and permanent insanity. However, the law should show some facilitating changes in the area of mental disorders by encouraging people to get psychiatric help and treatment.  The fact that wherever the law considers insanity to be a ground for divorce is so formulated that it does not cover all forms of mental disorder. It leaves the discretion to the judiciary with possibilities for contest and litigation. However it safeguards the sane spouse from the marriage, it is potentially a psychiatric problem. The government and society should always have the duty to take steps for reducing the stigma attached to mental disorders. Stereotyping of a particular issue should not be encouraged.

[1] R. Lakshmi Narayan vs. Santhi, AIR 2001 SC 21 10

[2] Ram Narayan v. Rameshwari1988 AIR 2260

[3] Smt. Alka Sharma v. Abhinesh Chandra Sharma 1991 (0) MPLJ 625

[4] Sharda versus Dharmapaul (2003, 4 SCC 493)

[5] Narayan CL, Shikha D. Indian legal system and mental health. Indian J Psychiatry. 2013;55(Suppl 2): S177–81.

[6] R. Lakshmi Narayan vs. Santhi, AIR 2001 SC 21 10



  1. […] suffered by her is of such a kind or such an extent that she can’t lead a normal married life[1] Recurrent attacks of epilepsy were also a disqualification for marriage, which was removed by […]

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