Before the advent of Muslims in India, the term “Hindu” had no creedal connotation. Then it had a territorial significance; probably it also denoted nationality. It seems the word ‘Hindu’ came in vogue with the advent of Greeks who called inhabitants of the Indus valley as indoi and later on this designation was extended to all persons who lived beyond the Indus valley. Today the term ‘Hindu’ has no territorial significance, nor is it a designation of nationality.
Till this day, there is no precise definition of the term ‘Hindu’ available either in any statute or in any judicial pronouncement; it has defied all efforts at definition. However, since Hindu law applies to Hindus, it is necessary to know who are Hindu, whatever definitional difficulties there might be. The persons to whom Hindu law applies may be put in the following categories:
- Any person who is Hindu, Jain, Sikh, or Buddhist by religion, i.e. Hindus by religion.
- Any person who is born of Hindu parents (viz., when both the parents or one of the parents is Hindu, Jain, Sikh, Buddhist by religion), i.e. Hindus by birth.
- Any person who is not a Muslim, Christian, Parsi, or Jew, and who is not govern by any other personal law. Two types of persons fall under this category:
- Those who are originally Hindus, Jains, Sikhs, Buddhists by religion, and
- Those who are converts or reconverted to Hindu, Jain, Sikh, or Buddhist.
2. Hindu law and its Sources
Hindu law is about 6000 years old. In the span of 6000 years it has passed through various phases. At times it has developed and grown remarkably well and reached such heights that the most modern systems of laws envy it, at times it has sagged and degraded so low that it has earned contempt. Hindu law, despite the fact that before the advent of the modern era, there was no direct law-making machinery has shown remarkable adaptability. Hindu law was largely un-codified till the country gained independence from British, the disputes were decided according to the principles of Hindu laws laid down in various ancient texts and prudence of the jury. It was codified after independence, basically, in the 1950s due to different sub rules, customs and usages among the Hindus which created havoc for the judiciary in granting justice.
The sources of Hindu law can classified under two heads:
- Ancient Sources
- Customs, and
- Modern Sources
- Equity, justice and good conscience
- Precedents, and
3. Meaning of Insanity
The term ‘insanity’refers to lunacy or unsound mind, mental abnormality, disease of mind etc. It is the state of mind wherein a person behaves irrationally out of mental derangement. An insane person cannot think and act as a normal human being. His capacity to know things is perverted. It is called ‘non compos mentis.’ i.e. possessed of a sound mind.
Legal Status of an insane person as per the judicial system has been as a person who is in a state of incapability of differentiating between right or wrong and who is not able to interpret the consequences of his acts and omissions. A person who is insane is considered to be suffering from certain mental ailment which makes one lose reasoning to the point that their actions can barely be anticipated by others.
4. Status of Insane Person under Hindu laws
We will now further discuss the legal status of an insane person under Hindu law. Four legislations will be analyzed to understand the position and status of an insane person under Hindu law, i.e.:-
- The Hindu Marriage Act, 1955.
- The Hindu Adoptions and Maintenance Act, 1956.
5. Insane person under the Hindu Marriage Act, 1955
5.1 Marriage with Insane person is Voidable
At one time, a view was expressed that marriage with lunatic or idiotic person was valid under Hindu law. Originally, the Hindu Marriage Act, section 5(ii) laid down that neither party to marriage should be an idiot or lunatic at the time of marriage.
But now according to Section 12(1)(b) of Hindu Marriage Act, 1955
Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity if the marriage is in contravention of the condition specified in clause (ii) of section 5;
According to Section 5(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
These three clauses of Section 5(ii) are independent of each other. If a case is converted under any of these clauses, the marriage can be annulled. Under clause (a) every kind of “unsoundness of mind” is not covered. The unsoundness of mind should be such which incapacitates a person from giving a valid consent to marriage. It need not be persistent or continuous “unsoundness of mind”. It may exist just before marriage.
Under clause (b), the words “has been suffering” requires that “mental disorder” should be of some duration. Of precisely “what duration” would differ from case to case and no hard and fast rule can be laid down. It is not every mental disorder which renders the marriage voidable, but should satisfy two conditions: (i) it renders the person unfit for marriage, and (ii) of procreation of children.
According to Section 5(ii)(c), recurrent attacks of insanity makes a person unfit for marriage. The word insanity is not qualified as “incurable”. Thus if attacks of insanity are recurrent that is enough.
The mental conditions specified in clauses of Section 5 relate to pre-marriage conditions and not the post-marriage mental conditions though for post marriage mental disability, divorce or judicial separation may be availed.
Thus on combine reading of both Section 12(1)(b) and Section 5(ii), it can be said that a marriage between an insane person and a sane person or marriage between two insane persons is perfectly valid till the party to marriage exercise the option to void the marriage given under Section 12(1)(b) of Hindu Marriage Act, 1955.
5.2 Insanity is a ground for Divorce and Judicial Separation
Insanity is a ground of both judicial separation and divorce. The Marriage Laws (Amendment) Act, 19766 has changed the language of clause (iii) of Section 13(1) completely.
The clause (iii) now lays down that now a petitioner may get a decree of divorce or judicial separation if the respondent “has been suffering continuously or intermittently from mental disorder of such a kind and to such a extent that the petitioner cannot be reasonably expected to live with the respondent”. Explanation (a) to clause defines the “mental disorder” as “mental illness”, arrested or incomplete development of mind psychopathic disorder or any other disorder or disability of mind and includes schizophrenia. Explanation (b) to Section 13(1)(iii) defines the term “psychopathic disorder” as “ 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. This provision has been borrowed from English law.
The petitioner only has to prove that as a reasonable person it is not possible for him/her to live with the respondent because of the mental illness.
In Ram Narayan v. Rameshwari, the Supreme Court has held that in schizophrenic mental disorder, the petitioner should prove not merely the said mental disorder, but should also establish that on that account the petitioner cannot be reasonably expected to live with the respondent.
In Alka v Abhinash, presents a somewhat unique fact situation. On the very first night of marriage the wife was cold, frigid, nervous, so recluse that she could not cooperate in performing the sexual act. She was unable to handle the domestic appliances. She was found irresponsible to the needs of family members. She failed to explain her conduct of urinating in the verandah in the presence of family members. It was held that she was suffering from schizophrenia. It was overlooked that on the very first night of the marriage the husband told the harrowing tale of his father keeping another woman and living with her. This might have unhinged the wife. The wife refused to cooperate with the committee of doctors and their were names of psychiatrists and medicines in her handwriting, these draw an inference of her mental disorder.
In K. Jasmine v. Balasundaram, the wife underwent a medical test at the instance of her husband. The medical test and insanity went against the husband. The wife could not be ordered to undergo another test of IQ.
Mental disorder and not psychological depression is a ground of divorce under the Act.
6. Insane Person under the Hindu Adoptions and Maintenance Act, 1956.
The law of adoption and rules related to it are contained under Chapter II of the Hindu Adoptions and Maintenance Act, 1956.
According to Section 5(1) of the Hindu Adoptions and Maintenance Act, 1956:
No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this chapter, and any additions made in contravention of the said provisions shall be void.
Thus every adoption made in contravention to the provisions contained in this chapter shall be void.
According to Section 6 of the Hindu Adoptions and Maintenance Act, 1956: No person shall be valid unless:-
- The person adopting had the capacity, and the right, to take in addition;
- The person giving in adoption has the capacity to do so;
- The person speed is capable of being taken into adoption; and
- The adoption is made in compliance with the other conditions mentioned in this chapter.
Thus by looking at the first three provisions of Section 6, it is clear that the person who gives in adoption, the person who is being adopted, and the person who adopts, all must have the required capacity to do so.
Person who adopts the child:
According to Section 7 and 8 of the Hindu Adoptions and Maintenance Act, 1956 any male or female respectively must be of sound mind to take a child in adoption. This is because they are of unsound mind they cannot adopt under Hindu law. But even after their unsoundness they adopt a child then such an adoption would be void according to Section 5(1) of the Hindu Adoptions and Maintenance Act, 1956 as the conditions laid down in Section 6(i) would be breached.
Secondly according to Section 7 and 8, the husband and wife respectively must take the child into adoption only after consent of his/her spouse. If the consent is not there then the apron would be void according to Section 5(1). But there is an exception to this rule, i.e. if the other spouse is of unsound mind then the consent of such spouse may not be important and absence of consent would not lead to nullity of adoption.
Person who gives the child in adoption:
According to Section 9(1) of the Hindu Adoptions and Maintenance Act, 1956 only father and mother have the capacity to give a child in adoption.
According to Section 9(2) the father and mother shall have the equal right to give a son or daughter in adoption. But if one of them is of unsound mind then the other parent can give the child in adoption without the consent of the other parent.
Thus the consent of a parent with an unsound mind does not matter for the purpose of giving the child into adoption.
According to Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956 the guardian of the child may give him in adoption with previous permission of court to any person including guardian himself, if, both the parents of such child are of unsound mind.
Person who is being adopted:
Section 10 lays down the conditions and requirements for a person which must be fulfilled for his valid adoption. If these conditions are not fulfilled then the apron would be void according to Section 5(1) of the Hindu Adoptions and Maintenance Act. But no condition is there in Section 10 regarding the person being of sound mind.
Thus, a person even if he is of unsound mind can be adopted.
In Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, it had been held that there Hindu Adoptions and Maintenance Act, 1956 do not bar a lunatic or insane person from being adopted.
No specific provisions are there under the law of maintenance under Hindu law concerning insane persons or persons with unsound mind.
The legal treatment of insane persons under Hindu law is not prejudiced as it can be seen from the legislative provisions under the current Hindu laws and they conform to the changing times and needs of the society.
- PRIMARY SOURCES
- All India Reporter (AIR)
- Supreme Court Cases (SCC)
- The Hindu Adoptions and Maintenance Act, 1956.
- The Hindu Marriage Act, 1955..
- SECONDARY SOURCES
- Diwan Paras, Modern Hindu Law, edition 2019.
- Indian Kanoon
- Saxena Pradhan, Poonam, Family Law Lectures (Family Law II), 4th edition
- Sen AN, Hindu Law, Sri Sai Law Publications, 2008 ed.
- What are the various sources of Hindu law?
- What is insanity in a legal sense?
- Is marriage with an insane person void or voidable? Explain in detail.
- Is insanity a ground for taking divorce or judicial separation?
- What is the status of an insane person under Hindu Adoptions and Maintenance Act, 1956?
 Shastri Yagnapurushadasji v. Muldas, AIR 1966 SC 1119.
 Amrithammal v. Vallimayil, AIR 1942 Mad 693.
 Tarlochan v. Jit, AIR 1986 Punjab and Haryana High Court 379.
 AIR 1989 SC 149.
 AIR 1991 M.P 205.
 AIR 1996 Mad 105.
 Hema Reddy v. Rakesh Reddy, AIR 2002 AP 228.
 AIR 1992 Bom 189.