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“Borderline personality disorder- do they qualify as insanity as required under the Hindu Marriage act”


BORDERLINE PERSONALITY DISORDER is a chronic psychiatric disorder characterized by marked impulsivity, instability of mood and interpersonal relationships, and suicidal behavior that can complicate medical care[1]. Personality disorders constitute a major group in the classification of mental disorders. These conditions are defined by maladaptive personality characteristics beginning early in life that have consistent and serious effects on functioning. [2]The term “borderline” is a misnomer, based on an old theory that this form of pathology lies on a border between psychosis and neurosis.[3]

The word insanity as a term has not been defined anywhere under the in the Hindu marriage act, 1955. The legal dictionary defines the term as ‘unsoundness of mind as a consequence of brain disease; madness; mental derangement.’ [4]However section 5 of the act lays down the conditions under which Marriage can be solemnized between any two Hindus. It is to be mentioned here that non-fulfilment of the conditions mentioned under section 5 for valid marriage would not render the marriage null and void in conditions relating to mental capacity and age.[5].

Few instances indicating a petulant nature and somewhat erratic behavior does not amount to mental disorder.[6] Minor aberrations do not constitute psychopathic disorder or any other kind of mental disorder.[7] The expression ‘incurably of unsound mind’ cannot be so widely interpreted as to cover feeble minded person or person of dull intellect who understand the nature and consequences of their acts and are able, therefore, to control themselves and their affairs and their reactions in the normal way.[8] Over sensitiveness of mind can also not be equated with unsoundness.[9]

For attracting section 13(1)(iii) of the Hindu Marriage Act, 1955, either of the two conditions is to be fulfilled. First, the respondent has been incurably of unsound mind. Secondly, the respondent 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. Proof of one element is insufficient to grant a decree.

A person who is incapable of managing himself and his affairs including the problem of society[10]and of married life can be said to be of unsound mind.[11] The marriage is voidable if either party is suffering from a mental disorder within the meaning of Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage[12], i.e, “incapable of carrying out the ordinary duties and obligations of marriage”[13].Marriage can be voidable under these circumstances.[14]It follows that mentally ill may marry provided their partner is prepared to tolerate their behavior[15]

According to Hindu law insanity is the ground for divorce on the ground that the other party is incurable 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.[16]

Banerjee in ‘ The Hindu Law of Marriage and Stridhan’[17] however says that the marriage with a lunatic or an idiot was discouraged by Shastras but these marriages under Shastras were not considered as void.

In venkatacharyulu vs rangachayulu, it was observed “marriage is not a mere contract in Hindu law in which a consenting mind is indispensable. The person married may be a minor or even of unsound mind, if the marriage is duly solemnized, there is a valid marriage.”[18]

Now the statutory provisions has set this controversial matter at rest. The Hindu Marriage Act , provides for dissolution of marriage only in certain kinds of mental disorder of the respondent. The petitioner merely by providing that the respondent is of unsound mind or that he is suffering from some mental disorder cannot obtain divorce.

In the case of Devi Sharma Vs Chandra Mohan Sharma[19], the order stated that there was a complete marriage, there was no mental disorder during the cross examination and hence no divorce. Conjugal harmony and happiness is not possible if either parties suffer from serious mental disorder but court is very decretive in awarding relief.[20]

The burden of proving mental disorder etc lies on the petitioner.[21]Court can find out by putting questions on him/her. Intelligible answers will prove that defendant does not suffer from mental disorder.[22] If the party refuses to submit to medical examination, despite an order of the court, then a strong case for drawing an adverse inference against him.[23] In the case of Santosh Vs Nandan Singh,[24] the court held that the mental disorder could not be established merely on the oral testimony of the relation of the parties. Their statement might prove symptoms but expert medical opinion was necessary to affirm. In another case,[25] no medical evidence was produced but it appeared that after ten days of the marriage, the husband met with an accident and the doctors found that there was no hope of his survival and as a result the wife got a mental set back and she swooned. It was held that the evidence was hardly sufficient to hold the wife suffering from mental disorder. Revealing the truth before marriage is essential else it amounts to fraud.

Two major issues to prove insanity is that the insanity is incurable and second he or she cannot manage themselves. Answer to the first issue is that the borderline personality disorder is treatable and method are available for its cure, it may take some time but it is curable with therapies. If it is showing symptoms like suicidal tendencies then it can be termed as insanity but if the person is showing mere emotional turmoil and it can be taken care of. The main idea of Hindu marriage is life long bond between two people and not separation between the two spouses. [26]


Having a diagnosis does not mean that a person will forever have the disorder. Sometimes marked borderline personality disorder patients may be able to function at very high levels in their careers [27]Many, but not all, people with borderline personality disorder recurrently harm themselves, usually to provide relief from intolerable distress. [28]. Further insanity to be established as incurable has to be of some duration. At what period of time unsoundness of mind could be called incurable would differ from case to case .People with borderline personality disorder have shown that symptomatic improvement can occur to the extent that a number of people will no longer meet the criteria for borderline personality disorder and that the prognosis may be better than has previously been recognized with support and love from loved ones.[29]The Indian statutes leave sufficient scope for judiciary to interpret as to what amounts to unsoundness of mind in a particular case. It is submitted that in order to arrive at its finding on insanity for avoidance of marriage the court should insist not only on sufficient evidence in proof of the factum of insanity but it would also satisfy itself as to the extent and intensity of such insanity. Since the question of sanity or insanity is a legal question and not a medical one, the judge and or jury will make the final decision.[30]

[1] CMAJ 2005;172(12):1579-83

[2] The Diagnostic and Statistical Manual of Mental Disorders,fourth edition.

[3] Skodol AE, Gunderson JG, Pfohl B, Widiger TA, Livesley WJ, Siever LJ.The borderline diagnosis. I: Psychopathology, comorbidity, and personality structure. Biol Psychiatry 2002;51:936-50

[4] P Ramanatha Aiyar, Concise Law Dictionary, 3rd ed (reprint 2008)

[5] Sec 11, sec 12(1)(c), sec 13(1)(iii) and  sec18 of Hindu Marriage Act.

[6] Nirmala Jagesha Vs Manoha Shivram Jages AIR 1991 Bom 251

[7] Chinmoy Chakraborty vs Bhaati Chakraborty Cal LT 1989(2) HC 414

[8] Gnanambal vs Selvaraj (1970) 2 MLJ 429

[9] Buddha Vs state of Maharashtra 1985 CrLJ 844( Bom)

[10] P.C Pant, Law Of Mariage And Divoce & Other Matimonial Disputes, 3rd Edition

[11] Kartik Chandra Vs Manju Rani AIR 1973 Cal 545

[12] Matrimonial Causes Act 1923, section 12 as amended by Mental Health Act 1983

[13] Bennett Vs Bennett (1969) 1 W.L.R 430,434, Schedule 4, para 34

[14] Understanding Family Alw, Micheal Freeman , 1st Edition

[15] Divorce and Mental Illness pp. 94-95, 97

[16] Section 13

[17] (1923) pp 40-41                                                                                    

[18] Unification Of Divoce Laws In India By Shiv Sahai Singh, (1993) pp 152

[19] AIR 2003 P & H 327

[20] Narain Gupta Vs Ramaswar AIR 1988 SC 2260

[21] Sharda vs Dharampal (2003) 4 SCC 493

[22] Prataplal Vs Kundna (1988) I HLR 153 Raj DB

[23] Santosh Vs Nandan Singh (1980) HLR 528(Del)

[24] 1980 HLR 528(Delhi)

[25] Gandharv Vs Anita 1980 HLR 518(P & H)

[26] Mohinder Kaur V. Major Singh, Air1972 P&H 184

[27] (Stone, 1993).

[28] (Paris & Zweig-Frank, 2001).

[29] (Zanarini et al., 2003).

[30] Gary, Melton (1997). Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (2nd ed.). New York: The Guilford Press. pp. 186–248. ISBN 1-57230-236-4.

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