In case of recurrent attacks of insanity, with high probability of it being of incurable nature, which option will suit me better? Divorce petition U/s 13(1)(iii) or Annulment petition U/s 12(c) of the Hindu Marriage Act, 1955?
Answer: In the absence of detailed facts, it is not possible to give a specific answer. The answer will depend on the facts and circumstances of each case. Let me, however, state some general aspects.
Firstly, though you have mentioned Section 12(c) of the Hindu Marriage Act, 1955, for annulment of marriage, the correct provision in this regard would be Section 12(1)(c) of the said Act. And, in fact, in the circumstances mentioned by you (recurrent attacks of insanity of incurable nature), perhaps the relevant provision would be annulment of marriage under Section 12(1)(b) read with Section 5(ii)(c).
For a better understanding of the provisions applicable, it is necessary to reproduce the three relevant sections of the Hindu Marriage Act, which has been done at the end of this answer. So, please refer to the relevant provisions at the end of this answer, wherever necessary.
Clause (c) of Section 5(ii) requires that a marriage may be solemnized between any two Hindus only if at the time of the marriage, neither party has been subject to recurrent attacks of insanity. If this condition is violated, such marriage is voidable under Section 12(1)(b) of the said Act. If this is the case, i.e., if your spouse has been subject to recurrent attacks of insanity at the time of marriage, then you can apply for annulment of marriage under Section 12(1)(b) of the Act. However, if your spouse has developed recurrent attacks of insanity only after marriage, then this provision may not be available.
Secondly, if you want to apply for annulment of marriage under Section 12(1)(c) of the Hindu Marriage Act, then you’ll have to show that your consent for marriage was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning your spouse. From the language of your question, it does not appear to be the case that “force” was used to obtain your consent for marriage. Second alternative requirement is that some “fraud” should have been used to obtain your consent for the marriage with regard to some material fact or circumstance concerning your spouse. Thus, for example, if you can show that your spouse had recurrent attacks of insanity and this information was deliberately concealed from you, it may perhaps be covered under this provision. However, please remember that under Section 12(2), it has been laid down that no petition for annulling a marriage on the ground specified in Section 12(1)(c) shall be entertained (i) if the petition is presented more than one year after the fraud had been discovered; or (ii) if you have, with your full consent, lived with your spouse (in your case, it is “wife”) as husband after the fraud had been discovered. Unless these conditions are satisfied, you cannot file a petition under Section 12(1)(c) for annulment of marriage on the above ground.
Please also remember that in the case of R. Lakshmi Narayan v. Santhi, (2001) 4 SCC 688, the Supreme Court has held that on a plain reading of the provision of Section 5(ii), it is manifest that the conditions prescribed in that section, if established, disentitles the party to a valid marriage; the marriage is not per se void but voidable under the clause; such conditions in the very nature of things call for strict standard of proof; and that the onus of proof is very heavy on the party who approaches the court for breaking a marriage already solemnized. Therefore, you may be required to produce very strict proof of the recurrent attacks of insanity if you approach the court for annulment of marriage under these provisions.
Moreover, irrespective of whether you approach the court for annulment of marriage under Section 12(1)(b) or under Section 12(1)(c), in both cases, the ground for annulment has to be in existence since the time of marriage. You have not clarified in the question if this is the situation, or the recurrent attacks of insanity have developed after marriage, though it appears that such attacks were since the time of marriage.
Therefore, you’ll have to carefully analyse the provisions of Section 5 and Section 12 of the Hindu Marriage Act in the light of your detailed facts.
On the other hand, if you want to file a divorce petition under Section 13(1)(iii) on the ground that your spouse has recurrent attacks of insanity which are of incurable nature, you’ll have to prove that your spouse has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that you cannot reasonably be expected to live with your spouse.
Moreover, you’ll have to provide evidence of the doctors having specialisation in the field (and other relevant evidence) to show that your spouse is suffering from recurrent attacks of insanity which are of incurable nature.
As held by the Supreme Court in the case of Ram Narain Gupta v. Rameshwari Gupta, (1988) 4 SCC 247 (and in certain other cases), the context in which the ideas of unsoundness of “mind” and “mental disorder” occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the “mental disorder” and that its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. Therefore, you’ll be expected to provide this evidence in this regard.
It may be noted that mental illness has to be proved in court from the facts of the case. It cannot be presumed or be matter of interpretation. The insanity will have to be proved. The proof may need medical evidence plus other pieces of evidence. A certificate given by the psychiatrist may not be sufficient since that is only a statement of opinion, and he will have to undergo cross-examination in court so that his certificate and opinion are considered as evidence. If the medical evidence is not reliable or trustworthy, it may be rejected by the court.
At this juncture, it may also perhaps be pertinent to keep in mind the observations of the Supreme Court in the recent case of Kollam Chandra Sekhar v. Kollam Padma Latha, (2014) 1 SCC 225, where a husband had sought divorce on the ground that his wife was suffering from serious case of schizophrenia, type of mental unsoundness or mental disorder:
“Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something that cannot be taken lightly. In the Vedic period, the sacredness of the marriage tie was repeatedly declared; the family ideal was decidedly high and it was often realised. … Marriage is highly revered in India and we are a nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control, as in the present case, the respondent was unwell and was taking treatment for the same. The illness had its fair share of problems. Can this be a reason for the appellant to abandon her and seek dissolution of marriage after the child is born from their union? Since the child is now a grown-up girl, her welfare must be the prime consideration for both the parties.”
So, it all depends on facts and circumstances of your case which are not mentioned in your question. You should consult some local lawyer by showing him full and detailed facts of your case. But, one thing can be mentioned – a decree of nullity of marriage under Section 12(1)(b) or Section 12(1)(c) may need the proof that the cause or ground existed at the time of marriage, whereas for a decree of divorce even a subsequent development of the ground agitated by you may be sufficient.
“5. Conditions for a Hindu marriage.—A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :—
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party—
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) 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
(c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.”
12. Voidable marriages.—(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :—
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—
(a) on the ground specified in clause (c) of sub-section (1), shall be entertained if—
(i) the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied—
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
13. Divorce.—(1) 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—
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(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.
Explanation.—In this clause,—
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner :
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974), [or under the corresponding Section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.—This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).
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