Featured Questions

My daughter, eight years old, has been attending a private school in the neighborhood for the past four years. She has some difficulty in writing and identifying characters which has stunted her progress. At home, we have found that with a little extra help she is able to cope, but she doesn’t get this attention from her teachers at school. Recently the school asked us to withdraw her, and look for another school because she wasn’t making progress. Are they entitled to do that? Shouldn’t they provide assistance for my child’s special needs?

While the 2012 amendment to the Right to Education Act 2009 speaks of inclusive education for children with disabilities, denial of reasonable accommodation to students with disabilities is yet not actionable as discrimination against these students. Children with mild learning disabilities face further complications because they cannot be certified to be persons with disabilities either under the Persons with Disabilities Act 1995 or under the added impairments via the National Trust Act (though in many cases children have been certified to have ‘mild mental retardation’). In fact, the right to reasonable accommodation in the education system is yet not acknowledged within the legal system. This has been done in bits and pieces, for instance by the Delhi High Court, which has issued strict directives in 2012 for all schools – including private unaided, to be in a ready state to welcome children with disabilities. The Court “…direct(s) all the recognized aided and unaided private schools in Delhi to appoint Special Educators and to make their buildings/school premises barrier free so as to provide free movement/access to children with disabilities. We further direct the DoE, Govt. NCT of Delhi to ensure compliance of the directions issued by this Court and to take action for de-recognition against the erring schools…schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for Special Educators and further ordain that no school shall refuse admission to children with disability for the reason of not employing Special Educators or not providing barrier free access in the school premises.” You would do well to garner the support of other parents facing similar issues (there will be many) through your local disablity federation and approach your High Court for similar directives in a public interest litigation. Other authorities that you can contact include the State Commission for Protection of Child Rights which is the monitoring authority for the child’s right to education under the Act, if your State Commission is active. You may not be able to approach the State Commissioner for Disabilities if your child is not certified as a person with disability.

I am 32 years old and have been married to my husband for 8 years. We have two children, a six-year-old daughter and a son who is five. Three years ago, my husband started experiencing episodes of mania where his behavior became violent and irrational. When I shared this with some close friends they suggested that it might be a psychiatric issue. My husband was livid when I suggested this to him and outright refused to see a doctor. I took my children to my parents’ house when my husband’s episodes got more frequent. About a fortnight later, I received a call from his boss informing me that he had had a manic episode in the office. He had been taken to a psychiatric facility for an evaluation. My husband has been receiving treatment for bipolar disorder for the last 7-8 months and his condition has improved. However, I still don’t feel safe with him and worry about the safety of my children. Is this a ground for divorce? What would happen to my children?

A diagnosis of a mental illness is not sufficient as a grounds of divorce, under any personal law. For example, the Hindu Marriage Act says that a person may approach the Court for a divorce if their spouse has “…been incurably 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.” The first example would be one where the state of unsound mind needs to be incurable. An example of this could be a person who is comatose. It is the second explanation that is usually invoked in such cases, and Courts have time and again clarified that just a diagnosis or undergoing treatment for a mental disorder is not enough to seek a divorce. In 1988, the Supreme Court said: “The context in which the ideas of unsoundness of 'mind' and 'mental disorder' occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the 'mental disorder'. Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law.” This was reiterated as recently as 2013 by the Supreme Court. Considering the fact that your husband is under treatement and is improving, it would be hard to argue that his disorder is to the extent where you cannot reasonably be expected to live with him. If you are concerned for the safety of your children, take heart in the fact that the perception of violence among persons with mental disorders is much higher than statistical realities, as has been proved in several studies. It would be best to sit with your husband’s therapist or counsellor and address your concerns and clarify your doubts. This should all be done in the presence of your husband, of course, which is the ethical approach, and your husband should be an active and not passive participant in the planning for the future. If your husband refuses to cooperate with your request to be involved in his recovery then you perhaps can consider this to be a form of cruelty. The question of the custody of your children would be decided by means of an application for custody filed by either party, and different factors would come into play in such decision making, including the opnion of the children.

I’m 26 years old and have been working at a leading IT firm for the last three years. A year ago I was diagnosed with bipolar disorder following which I took a leave of absence to receive treatment. I returned to work and things were under control, but recently I was served a notice for termination of employment. I believe this due to my illness as my track record has been exemplary. Do I have a legal recourse?

As on date, Indian law does not provide for non-discrimination in employment on the ground of disability for those working in the private sector. While the Chief Commissioner for Persons with Disabilities has the jurisdiction to look into matters relating to deprivation of rights of Persons with Disabilities, the 1995 Act, which empowers him, limits such complaints to those made by ‘Persons with Disabilities’ as defined under the Act, which requires certification of disability.

One way in which many persons in your position have got some amount of success is where multinational companies, particularly those based in the European Union, the United Kingdom or United States, are involved. Companies based in these countries are mandated to have non-discrimination policies on mental health in employment, in line with the Americans with Disabilities Act 1990, The United Kingdom Equality Act, 2010 or the Employment Equality Directive of the European Union, 2008. If you are willing to write a letter which brings this fact to the notice of the management in India, or escalate the matter to the Human Resource persons at the head office, you may find some success by way of an intervention to either protect your job or ensure you get a healthy severance for the termination of your services. Note that these laws do not apply to overseas offices so you may not be able to proceed legally as non-discrimination being your right, but at the same time it has been effective in several cases.

Amba Salelkar is a lawyer based in Chennai, with a special interest in disability law and policy.

My son is 24 years old and has been suffering from schizophrenia for the past four years. He is currently undergoing treatment and is stable. Now, we wish to get him married. Will his illness pose problems to the marriage in the future? What is the way forward?

A lot about managing psychosocial disabilities is understanding and trust. Full disclosure to the prospective partner is a must for two reasons – one is to ensure that there is trust between the parties and that she is prepared for the support she may be required to give. Second, it precludes any further legal complications that may arise from an allegation of fraud on account of this concealment of fact, which could be used to terminate the marriage, or worse, be construed to have caused mental abuse which may be prosecuted under the Indian Penal Code (Section 498A) or the Prevention of Domestic Violence against Women Act, 2005.

As per Indian law as it stands today, at the time of registration of the marriage if your son is not having a psychosocial episode, the registration will be completely valid. The diagnosis itself, if disclosed before the marriage, will not be a ground for dissolution of the marriage unless there comes a situation where the wife can allege that he is incapable of continuing a marital relationship, if he faces a relapse. Mere diagnosis, whether past or current, is not sufficient to seek a divorce.

Crossing legal hurdles is not the most effective way to ensure a successful relationship. The best way to move forward is by your son and his prospective bride to have an honest conversation, even if facilitated by a therapist, common friend or family member, wherein he can communicate the support that he requires if he has a relapse, including his choices with regard to treatment. As Indian Law at present allows for institutionalization and forced treatment, this is a very important conversation to have. This respects his legal capacity and his right to support within the family.

Amba Salelkar is a lawyer based in Chennai, with a special interest in disability law and policy.