As someone who lives with epilepsy and has done so for more than two decades, I must admit I have a rather intimate interest in the ways that India understands and responds to epilepsy.  I had written this a long time ago, and eventually hope to make this part of a bigger paper. But this post considers how the Indian legal system utilized and shaped marriage law in the twentieth century to contribute to the direct and indirect stigmatization, marginalization and isolation of people living with epilepsy.

Legal sociology had occasionally argued that the law historically mirrors or reflects social norms and that it cannot alter existing attitudes that produce (stigmatizing and prejudicial) behavior. However, it is difficult to argue that when the law does not reify and reproduce (negative) ideas and perceptions around a potentially stigmatizing trait; and that these ideas and perceptions have little or no influence on public attitudes and/or behavior.[1] AS Burris argued, law can influence the operation of stigma in society in three ways: by offering a remedy to the enactment of stigma, as a medium for the creation, enforcing or disputing of stigma in addition to impacting individual response to stigma.[2] Ideally, of course, state law should be able to be utilized as an effective instrument to limit and blunt the effects of stigma related to health conditions.

Before I begin considering the Indian case of how marriage law has understood epilepsy, I would like to briefly present a review of state—sanctioned legislation and policies against people with epilepsy through the twentieth century. A comparison with other countries reveals similar precedent s in other regions; even in regions where marriage was considered a contract between individuals, such as most countries in Western and Northern Europe as well as the USA. In 1919, some of the earliest eugenic legislation regulating marriage was passed in Norway, where the contracting partners of any marriage had to declare that they were not suffering from epilepsy in addition to a host of other conditions. In the early twentieth century in the US, epilepsy and the concealment of the condition was accepted as grounds for annulment, and in those eighteen states where people with epilepsy were forbidden to marry due to eugenics-based legislation, marriages in which a spouse had intentionally concealed the condition could be set aside.[3] However, even before mid-century, courts in the US also denied annulments for concealment of epilepsy; because they were not considered as implicated in the conjugal relationship that was considered central to the marital union.[4] .As for the United Kingdom, the early twentieth century saw similar eugenics-driven legislation against people with epilepsy. For instance, according to the Matrimonial Causes Act, 1937, a marriage could be rendered null and void if ‘either party were at the time of the marriage of unsound mind, or a mental defective…,or subject to recurrent fits of epilepsy and insanity’; a proviso which was dropped later in the century.[5]

The state also legislated against people with epilepsy in several other domains other than marriage. Through the twentieth century, many countries restricted, and continue to restrict, issuing driving licenses to people with epilepsy, irrespective of the type of seizure and whether or not the epilepsy was treated successfully.[6] Countries frequently proffered reasons that the possibility of a seizure occurring while driving posed a significant risk to public safety. However, recent research has revealed that the proportion of automobile accidents attributable to active epileptic seizures was extremely low.[7] but it effectively discriminated against people with epilepsy who were seizure-free and required mobility for any reason. In the United Kingdom, for instance, people with epilepsy were completely prohibited from driving since the 1920s. By 1969, those who had been seizure-free for at least three years were permitted to apply for driving licenses; this period was reduced to two years in 1982 and by 1993-94, British law required that applicants for driving licenses should have been seizure-free for at least a year before the license was granted. [8] The mobility of people with epilepsy was restricted in ways other than merely by restricting driving privileges. Nineteenth and twentieth century immigration legislation in Europe, North America and Australia often discriminated against potential migrants with a whole host of health conditions, both contagious and non-contagious. In the particular case of the United States, immigration law kept out entire families if a single child in the potential migrant family had been diagnosed with epilepsy.[9] Similarly, in Australia, successive immigration acts ensured that ‘epileptics’ were disqualified from immigration into Australia, until 1989.[10]

The Indian Case

Indians do not have a ‘uniform civil code’ and can currently choose to marry under the marriage acts that pertain to their professed faith and community, or choose the general and common law applicable to civil marriages. The Hindu, Christian, Parsi and Muslim marriage laws are generally described as ‘personal laws’, while the Special Marriage Act (1954), and the Foreign Marriage Act (1969), comprise the two enactments pertaining to civil marriages.

In March of 1974, the Law Commission of India, the body which was responsible for debating and deciding on legal reform in the country since 1955, published a report on the Hindu Marriage Act, 1955. After considerable deliberation on contemporary reforms in British marriage law, which had decided to remove epilepsy as a cause for marital dissolution, but had retained insanity of one of the spouses as a potential provision for seeking divorces, the Commission explicitly moved to retain the provision that ‘recurrent attacks of epilepsy’. The proposed revision in Section 5 (ii), according to the LCI, was as follows: ‘that at the time of marriage neither party to the marriage—

• Was incapable of valid consent to it in consequence of unsoundness of mind; or
• Though capable of giving a valid consent, was 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
• Was subject to recurrent attacks of insanity or epilepsy’.[11]

the word ‘epilepsy’ has already been omitted from Section 5(ii)(c) of the Hindu Marriage Act by the recent amendment, i.e., with effect from 29.12.1999. The National Law Commission’s 59^th Report on the Hindu Marriage Act and the Special Marriage Act entered into a considered debate on the history of causes for void and voidable marriages in other parts of the world—including the United Kingdom and the United States of America. They concluded that insanity and epilepsy had become relevant causes for dissolving marriages by tracing the evolution of legal constructions of the concepts of ‘insanity’ and unsound mind’. First, that these conditions rendered the individual mentally incompetent to provide fully informed consent to the marriage, even if they were ‘lucid’ at the time of the union. Second, that it was not in the interests of the other spouse (‘who is of sound mind’) that they cohabit with an individual who was mentally incompetent. The third, and possibly most disturbing consideration the Law Commission pointed out was ‘one of eugenics’; or the apprehension that the marriage might lead to the ‘’birth of children who would be abnormal’.[12]

By the 1970s, both the United States and the United Kingdom had dropped epilepsy as a valid cause for marital dissolution, a point which was noted by the LCI report. However, the LCI made an explicit recommendation to continue to include ‘recurrent attacks of epilepsy’ under the list of circumstances which rendered a marriage under the HMA voidable. Rather than refer to the amended 1973 English legal provision which granted people with epilepsy greater marital rights, the LCI chose to retain epilepsy ‘in order to avoid controversy’.[13] The revised provision of Section 5(ii) thus read: ‘…that at the time of the marriage neither party to the marriage…was subject to recurrent attacks of insanity or epilepsy’.

The particular section of the Hindu Marriage Act pertaining to epilepsy was extensively used across India.[14] In 1979, Roshan Lal was granted an annulment on the grounds that his wife had had recurrent attacks of epilepsy before their marriage. Four years later, in the case of V. Bala Krishna vs V. Lalitha, presented to the Andhra Pradesh High Court, the petitioner (VBK) sought the annulment of his marriage to VL, on the same grounds. Despite the interventions of medical and legal professionals on behalf of Lalitha, the High Court granted VBK an annulment, denying that the curability of epilepsy had anything to do with the prospects for complete participation in married life. In the case of Sudha Mehta vs Ravinder Mehta in 1990, the Punjab-Haryana High Court went even further, equating the ‘burden’ of the wife’s epilepsy to that of schizophrenia. The judge drew upon another case in which the wife was found to be suffering from schizophrenia; where ‘husband and wife have lived together for only a short period, it is difficult to visualise an atmosphere of conjugal bliss, so necessary to ensure continual sound mental state of the wife even if she assumed to be of that state now. The husband would always be under the apprehension of the wife suffering a relapse. In such a situation, it would not be reasonable to expect the husband to live with his wife and lead a normal life.’.[15] In 1993, another case before the Madhya Pradesh High Court found a similar conclusion, with the judge stating clearly that medical evidence from two professionals that the frequency of the seizures could be overcome with a treatment regimen was essentially irrelevant to the suit for annulment by the husband.[16]

Even after epilepsy had been removed from the Hindu Marriage Act as a valid cause for marital dissolution, several respondents continue to use epilepsy to attempt to prove that the spouse with epilepsy was of unsound mind and therefore apply for divorce through Section 13(1) (iii) of the Hindu Marriage Act.[18]J  Judges at the high court level consistently equated epilepsy with mental illness, or conflated the two, as the mention of ‘mental epilepsy’ indicates. In other criminal cases, epilepsy has been put forward as cause to discredit respondents in court. For instance, in Prakash and Ajayan vs the State of Kerala, 6 February 2009, the defendants’ lawyer urged the court to discount the testimony of a witness because he ‘”psychiatric treatment”, “a person of pretensions and manipulative behaviour” and a person suffering from epilepsy’.[17] Even as late as 2010, legal representations of epilepsy continue to hold to the idea that it is a ‘mental disorder’, and not a neurological condition; making little real distinction between a psychiatric and neurological condition.

 

[1] For instance, Burris argues that the Helms amendment, which prohibited the portrayal of homosexuality in safe sex messages endorsed and funded by the US government—here the law explicitly endorsed the stigmatization of a particular group,

[2] Scott Burris, ‘Stigma and the Law’, The Lancet, 367(February 11, 2006).

[3] ‘Marriage, Concealment of Epilepsy Grounds for Annulment of Marriage’, Virginia Law Review, 12,5(1926):426-27. States including Wisconsin, Delaware, Connecticut, Missouri, Montana and Maine

[4] Instances have been cited in Lawrence Drew Borten, ‘Sex, Procreation and the State Interest in Marriage’, Columbia Law Review, 102,4(2002):1089-1128.

[5] William Latey, ‘Nullity of Marriage: English and Canon Law’, The International and Comparative Law Quarterly, I6,1(1957):36-48.

[6] Ettore Beghi and Josemir W. Sander, ‘Epilepsy and Driving: Regulations in the European Union Need Harmonisation As Well As Greater Flexibility’, British Medical Journal, 331,7508(9 July 2005):60-61. For instance, several types of epilepsy are perfectly compatible with driving—yet all epilepsies tended to be clubbed together and only in the past few decades have European and North American states begun to incorporate the type of epilepsy into the procedures involved in applying for a driving license.

[7] S.G. Sheth, G. Krauss, A Krumholz, G, Li, ‘Mortality in Epilepsy: Driving Facilities vs Other Causes of Death in Patterns with Epilepsy’, Neurology, 63(2004):1002-7. In the United States, for instance, less than 0.2% of automobile accidents were attributed to active epileptic seizures, while as much as 31 percent of automobile accidents were attributed to alcohol abuse, and 24 percent to the young age of the driver.

[8] Simon Shorvon, ‘Epilepsy and Driving’, British Medical Journal, i310, 6984(8 April 1995): 885-886.

[9] Douglas C. Baynton, ‘Defectives in the Land: Disability and American Immigration Policy, 1882-1924’, Journal of American Ethnic History, 24,3(2005):31-44.

[10] Alison Bashford and Sarah Howard, ‘Immigration and Health: Law and Regulation in Australia, 1901-1958’, Health and History, 6,1(2004):97-112; Alison Bashford and Bernadette Power, ‘Immigration and Health: Law and Regulation in Australia, 1958-2004’.

[11] Law Commission of India, Fifty-Ninth Report on Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, March 1974.

[12] Law Commission of India, 59^th Report, pp.48-49.

[13] Law Commission of India, 59^th Report, p.49.

[14] This post only considered judgements by the High Courts of individual states, it is undeniable that an exploration of the Family Courts across the country should reveal even more than higher court records.

 

[15] Punjab-Harayana High Court, Sudha Mehta vs Ravinder Mehta on 28 March 1990.

[16] Madhya Pradesh High Court, Sunitabai vs Devendra Kumar, 2 Februrary 1993.

[17] Kerala High Court, Prakash and Ajayan vs the State of Kerala, 6^th February, 2009.

[18] Madras High Court, T.R. Rajagopalan vs Usha Rajagopalan, 24 January 1997.