Friday, 12 April 2013
Void versus voidable
There was a time when once a couple had decided that they wanted to marry one another, the biggest hurdle to be overcome was getting the permission of the prospective parents-in-law. Now there are greater hurdles placed by the state. It can declare that you are `intellectually disabled' and thereby forfeit the decision to choose your spouse, even if she wants to have you, notwithstanding your `disability'! Talk of kicking a man when he is down! This post attempts to understand the rationale for this ghastly act by trying to interpret, in lay terms – or more specifically, along the logical lines of thinking I am used to employing in mathematics – the legalese underlying this cavalier attitude that strives to make an already difficult life for the disadvantaged almost impossible!
A few days ago, the papers carried a story of a mass marriage that was conducted not very far from where I live in Chennai, and when the newlywed couples tried to register their marriages, two of the couples were not permitted to do so because it turned out that one spouse of each couple had `borderline disability'. In short, the state would not register their marriage on the `legal premise' that marriages involving mentally ill people are null and void.
My lawyer friend Amba informs me that:
There's a difference between "void" (i.e. it could have never even taken place) and "voidable" marriages under the Hindu Marriage Act. Voidable marriages can be annulled by any of the parties, and "unsoundness of mind" is voidable, which means that the marriage could have very well been registered.
"Unsound mind" for the purpose of consent is seen from the Indian Contract Act: 12. What is a sound mind for the purposes of contracting?
A person is said to be of sound mind for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgement as to its effect upon his interest. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind. So in law, there is no "blanket unsoundness of mind" - whether it is psychosocial disability or an intellectual disability. The actions of the registrar are bad in law, besides being violative of the UNCRPD as well.(Way to go, Amba!)
In terms I understand, this (refusing to register the wedding) seems not unlike asking a 40 year old to solve a problem in high school geometry, and in the very likely event of his not being to solve the problem, to then declare that the person's school-leaving certificate is `null and void' – since being unable to solve simple high school geometry problems surely constitutes some manner of intellectual disability!