Report No. 59

3.14. Considerations relevant.-

The above brief resume will show that, speaking from the social point of view, several considerations seem to have competed with each other for recognition in this field. The first is that the consent of the mentally incompetent person is no consent at all. The second is that it is not in the interests of the other spouse-who is of sound mind-that he or she should be made to live with a person mentally incompetent. The third consideration, which may be called one of eugenics, is that the marriage of a person with mental abnormality might lead to the birth of children who would be abnormal. There might be a fourth consideration also, namely, that even the party who was suffering from mental abnormality, though not of such a nature as to affect the competence to consent, should be free to present a petition for avoiding the marriage.

3.15 to 3.17. This, in fact, is the law in England, under which, subject to specified conditions, a marriage of a person of unsound mind is voidable at the instance of either party [See section 12(1)(c)(d) Act of 1973]1. Giving the right of avoiding to the insane party may not necessarily conflict with section 23(1)(a) in so far as it prevents a party from taking advantage of his own wrong. Such a person would not be taking advantage or his own wrong2, because there is no deceit, and it would be a "most infelicitous use of language" to say so when there is no deceit3. However, it may conflict with the prohibition against taking advantage of one's "own disability" in section 23(1)(a). An express provision over-riding section 23(1)(a) could be inserted.

"Unsound mind" and "insanity" mean the same thing4.

1. Para. 3.12, supra.

2. Section 23(1)(a), Hindu Marriage Act.

3. Cf. Lord Merriman's observations, (with reference to importance) in Harthan v. Harthan, (1948) 2 All ER 639 (644).

4. (a) Smith v. Smith, 1940 Probate 179: (1940) 2 All ER 595. (b) Whysall v. Whysall, 1960 Probate 52: (1959) 3 All ER 389 (395).