Introduction
Despite progressive legal frameworks created for the benefit of persons with disabilities, disability-based discrimination is a pervasive issue in India. Misconceptions and stereotypes about disabilities marginalise persons with disabilities, portraying them as helpless and dependent. They are defined solely by their disabilities rather than being seen as autonomous persons with the potential to live fulfilling lives. It is due to such misconceptions that it is necessary to be cognizant of the way that Indian society is structured to marginalise and discriminate against disabled persons. Indian personal laws discriminate against persons with disabilities by singling out disabilities as a ground for divorce in an arbitrary manner. Such laws conceptualise disabilities as flaws within individuals that prevent them from exercising their autonomy and claiming their rights.
Divorce Under the Hindu Marriage Act, 1955
For Indian personal laws such as the Hindu Marriage Act, 1955 (“HMA”), mental disability forms a ground for divorce. The HMA under Section 5(ii) requires that neither party suffer from mental unsoundness that prohibits them from giving consent, or, even in the event they can give consent, suffer from a disorder such that they are unable to reproduce and are unfit for marriage, or suffer from “recurrent attacks of insanity”. Section 13 enables a marriage solemnised under the HMA to be dissolved on one of the grounds that if one of the parties has an incurable unsoundness of mind, or if they are ‘suffering’ from a mental disorder, the other party “cannot reasonably be expected to live” with their spouse.
Trial Courts: Disabilities and Judicial Insensitivity
In Ram Narain Gupta v. Rameshwari Gupta, the husband filed for divorce under the HMA. He claimed that his wife was suffering from Schizophrenia and had violent tendencies. In the trial court, the husband had put up medical “proof” of this disorder, which was accepted. On appeal, however, the High Court found that the medical certificates submitted, at no point, indicated that the wife suffered from this disorder. Moreover, the witnesses produced by the husband had been tutored to provide falsified information. The High Court ultimately reversed the lower court’s decision. In Uma Das v. Nepal Das, the Gauhati High Court overturned the decision of the trial court which had granted a decree of dissolution of marriage. During the trial, the husband produced flimsy evidence that showed no indication of his wife being of unsound mind. Despite this, the trial court granted a decree of dissolution. The High Court finally held that the trial court’s findings were without evidence and unsustainable in law. These two cases are typical examples of where the husband can successfully acquire a decree of nullity of marriage on the ground of ‘unsoundness of mind’ at the trial court stage based on flimsy evidence. Only when the matter is appealed and the evidence is analysed better, can the case be overturned. However, the ability to pursue subsequent appeals is based on financial, infrastructural, medical, and social resources which would not be available to a large section of Indian society due to the income inequality in India and barriers to accessing justice.
The Fault Theory: A Legal Basis for Discrimination
Pinki Anurag argues that the grounds for nullifying marriages in India, which are based on the fault theory, single out disability in a discriminatory manner, stigmatise the disabled spouse on the basis of their differences, and deny persons with disabilities support from their marital family by providing an easy out for the non-disabled spouse. With the advancement of science and medicine, many mental disorders are treatable or controllable with the use of medication, thus making the need for such a ground for divorce redundant in the contemporary legal and social landscape. Singling out disabilities as a ground for divorce also goes against the Convention on the Rights of Persons with Disabilities (CRPD), which India has ratified, that promotes and protects the human rights and fundamental freedoms of persons with disabilities. The CRPD was specifically drafted with the idea that persons with disabilities are capable of claiming their rights and making decisions based on informed consent so as to fully participate in society. These ideas have also found their way into legislation through the Rights of Persons with Disabilities Act, 2016 (RPWD) which recognises that persons with disabilities have the right to equality and to live a life with dignity.
Disability-based discrimination is also multifaceted; multiple forms of injustice are often present simultaneously. Married women often face the brunt of being discriminated against on account of not just their disability, but also because of their sex and expected gender norms. It has been noted that women face what is known as the ‘triple tragedy’. That is, on the grounds of the psychoses, their female status, and whether they are divorced or separated; and often, the stigma of being divorced supersedes the stigma of having a disability. For example, in a matter before the Gujarat High Court, the petitioner sought a decree of divorce under the HMA on the ground that his wife’s mental condition was ‘defective’. The evidence put forth by the husband included clinical evidence from a doctor’s testimony, circumstantial evidence where he stated that his wife did not dress properly nor bathe daily, nor could she distinguish between vegetables and cereals, and other behavioural ‘flaws’ to prove that his wife did not display ‘womanly behaviour’. The High Court ultimately remained unpersuaded and observed that to prove unsoundness of mind, the petitioner had to show “cogent and clear evidence beyond reasonable doubt”. The lack of conformity to gender norms was used as proof of the wife’s ‘disability’, giving her husband an opportunity to exit from his marriage.
Conclusion
Such a conception of an ‘ideal’ marriage is a product of its time. It locates disabilities as flaws within people that prevent them from exercising their autonomy to make informed decisions. It also provides an easy exit for those who do not wish to maintain their spouses who have a disability, which further thus stigmatises disabled persons. Courts too create systemic barriers by interpreting these provisions in the HMA in a manner that contravenes the spirit and purpose of the RPWD Act. Rather than foregrounding divorce solely on the ground of disability, Courts must interpret divorce laws in a manner that balances the right to seek divorce and still allows disabled persons to exercise their rights with their informed consent.
The Author, Feroza Rastom Mody, is a law graduate from O. P. Jindal Global University.