Incurable Unsound Mind


Person of unsound mind is said to be any person, who is not a minor and who, not having been found to be a mentally disordered person is incapable from infirmity of mind of managing his own affairs.

Major mental disorders have always been considered as important elements in marriage and are  listed both as preconditions of marriage and as grounds for divorce. As per Hindu Marriage Act, 1955, few conditions have been entailed in respect to mental disorders under Section 5(ii), which must be met before the marriage is solemnized. The aforementioned section mentions the following conditions:

  • As per the provisions Neither party incapable of giving a valid consent as a consequence of unsoundness of mind
  • Even if capable of giving consent must not suffer from mental disorders of such a 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.

It shall be valid and pertinent to point out that the original provision quoted  “neither party is an idiot or a lunatic,” which was changed to the current provision by Marriage Laws (Amendment) Act, 1976.  Apart from this, the Recurrent attacks of epilepsy was also said to be a disqualification for marriage, which was removed by the Marriage Laws (Amendment) Act, 1999. Speaking of which, the hon’ble Supreme Court observed that to brand the wife as unfit for marriage and procreation of children on account of the mental disorder, it is needed to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a normal married life or lead other responsibilities associated.

Marriages that are solemnized in contravention to the provision with respect to mental disorders come under voidable category. Voidable marriages under section 12 are those which may be annulled by a decree of nullity on the given grounds but may continue to be legal until the time it is annulled by a competent court.

According to the provisions that are mentioned under Section 13 of the Act, divorce or judicial separation can certainly be obtained if the person 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 thus cannot reasonably be expected to live with the respondent.” The expression “mental disorder” means mental illness and arrested, or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia. The act also talks about the  “psychopathic disorder” which means a persistent disorder or disability of the mind even if it does or does not include subnormality of intelligence  which certainly 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. In a famous case, the hon’ble Supreme Court propounded that each case of schizophrenia has to be considered on its own merits and circumstances . There have been certain medical evidences that are regarding the requisite degree of mental disorder and is relevant in approach, even though it is not conclusive. In the aforementioned scenario, the hon’ble Supreme Court also observed that when there was sufficient evidence for the court to conclude that the slight mental disorder of the wife that was not of such a kind and to such an extent that the husband could not reasonably be expected to live with her, divorce could not be granted. These judgments are majorly significant because of the importance and cardinality given to the effects and the impact rather that to the mere labeling of mental illness.


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