Mental Capacity And Marital Consent: Rethinking Hindu Marriage Law
- IJLLR Journal
- Nov 20
- 2 min read
Padmakshee Pani, Birla Global University, Bhubaneswar
ABSTRACT
Hindu law states that legitimate consent is a prerequisite for marriage. According to Hindu marriage law, people who have mental illnesses or disabilities that interfere with their ability to get married or raise a family are not allowed to get married. Despite being meant to protect consent, the clause is out-of-date, unclear, and devoid of procedural protections, which causes varying court interpretations and drawn-out legal proceedings. Courts have alternated between functional evaluations of marital capacity and stringent diagnostic criteria, undermining legal certainty and perpetuating stigma against people with psychosocial disabilities.
The lack of a required medical evaluation, ambiguous terminology, and potential for abuse or concealment are important gaps. The wording of the clause takes a medicalized, discriminatory stance that goes against the equality, dignity, and autonomy guaranteed by the constitution. Better models are provided by comparative jurisprudence: English law similarly emphasizes decision-making ability over diagnostic categories, while the UN Convention on the Rights of Persons with Disabilities places emphasis on both functional capacity and non-discrimination.
This paper argues that immediate Section 5(ii) reform is necessary. Statutory definitions based on functional ability, backed by procedural protections like contemporaneous evaluation, privacy-protected disclosure, and unambiguous remedies to protect vulnerable spouses, should take the place of stigmatizing labels. Hindu matrimonial law would be more equitable, autonomous, and less exploitative while also offering legal certainty if it were in line with international norms and constitutional morality. By aligning personal law with developing human rights principles, such reform would move the law away from exclusion and toward a rights-based framework of marital consent.
Keywords: Mental capacity, Consent in marriage, Hindu personal law, Persons with disabilities, CRPD compliance, Legal capacity, Law reform
