Persistent Vegetative State (PVS) and Hindu Matrimonial Law: Unaddressed Legal Dilemmas
*Shivansh Mudgal & Sneha Sharma
Introduction
Consider a couple with two children whose car hits a pole after a tyre bursts. One spouse survives in a Persistent Vegetative State (PVS): biologically alive, sustained by Clinically Assisted Nutrition and Hydration (CANH), with no realistic prospect of regaining consciousness. The other spouse must manage the children, the household and the treatment alone.
This piece asks what Hindu matrimonial law offers to that spouse. Its scope is confined to the Hindu Marriage Act, 1955 (HMA), the Hindu Minority and Guardianship Act, 1956 (HMGA) and the Guardians and Wards Act, 1890 (GWA); other personal laws and the Special Marriage Act, 1954 raise distinct questions and are not examined. It argues that Hindu law has no ground drafted for PVS, that existing remedies address only parts of the problem, and that Parliament should legislate a dedicated ground and a protective mechanism.
Section 13 of the HMA and the PVS Gap
Divorce by mutual consent under section 13B is unavailable, because the incapacitated spouse cannot consent to or join a petition. The other spouse must rely on a contested ground under Section 13(1), and only two are even arguably relevant.
The first is Section 13(1)(iii), which covers a spouse who “has been incurably of unsound mind” or suffers 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 Explanation defines mental disorder as mental illness, arrested or incomplete development of mind, psychopathic disorder or “any other disorder or disability of mind”. Every limb concerns the mind and how it functions. PVS is different in kind: the cerebral hemispheres are irreversibly damaged while the brain stem keeps working, a failure of the brain rather than a psychiatric disorder. The UK Mental Capacity Act 2005 shows that a legislature can draft for this difference, defining incapacity by an “impairment of, or a disturbance in the functioning of, the mind or brain” (s 2(1)). Section 13(1)(iii) speaks only of the mind.
The case law points the same way. In Ram Narain Gupta v. Rameshwari Gupta (1988) 4 SCC 247, the Supreme Court held that the mere existence of a mental disorder is not enough; its degree must be such that the petitioner cannot reasonably be expected to live with the respondent. That inquiry assumes a spouse whose condition shapes the marriage through conduct, whereas a spouse in PVS neither acts nor responds. A court could stretch “unsound mind” to reach PVS, but no reported decision doing so has come to the authors’ notice, and stretching is no substitute for a clear ground.
The second is Section 13(1)(vii), which requires that the spouse “has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it”. A spouse in PVS is known to be alive, so this presumption of death is never engaged.
BrainStem Death, PVS and the Court’s Jurisprudence
Indian law does address irreversible neurological states, but for other purposes. The Transplantation of Human Organs and Tissues Act, 1994 recognises brain-stem death, certified by a designated medical board, for organ retrieval (ss 2(d), 3). The analogy is one of method: a person in PVS is alive, so the Act cannot justify treating PVS as death, but it shows that Parliament can attach legal consequences to a neurological diagnosis and rely on statutory medical certification as the safeguard.
The Supreme Court has addressed PVS only in treatment decisions. Aruna Ramachandra Shanbaug v. Union of India (2011) 4 SCC 454 distinguished brain death from PVS and allowed passive euthanasia under judicial supervision. Common Cause v. Union of India (2018) 5 SCC 1 read the right to die with dignity into Article 21 and recognised advance directives, which remain uncommon in India. In Harish Rana v. Union of India (2026 INSC 222), the Court treated CANH as medical treatment, permitted its withdrawal for a patient in PVS for over thirteen years on a best-interests standard and urged Parliament to legislate on end-of-life decision-making.
These cases protect patient-centric rights. They show that PVS without prospect of recovery is a category medical boards can certify, and that the Court has invited legislation, but they ask whether treatment should continue, not what the law owes the spouse who lives with the answer.
Guardianship, Property and the Limits of Existing Remedies
Judicial separation under Section 10 of the HMA rests on the same grounds as section 13(1), so it inherits the difficulty above and leaves the marriage, and every question of property and succession, untouched.
Guardianship of the children is the least troubled area. Section 6 of the HMGA names the father as natural guardian “and after him, the mother”, but Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 read “after” as “in the absence of”, meaning absence from the care of the minor for any reason. Welfare is the paramount consideration under section 13 of the HMGA, and Sections 7 and 17 of the GWA offer a court-appointed route. What is missing is speed, for instance where Section 8 of the HMGA requires court permission to deal with a minor’s immovable property.
The real gap lies in the incapacitated spouse’s own affairs. India has no community-of-property regime, so property in that spouse’s name cannot ordinarily be dealt with by the other spouse without legal authority. Joint bank accounts are not automatically frozen; the position depends on the mandate. Under an “either or survivor” mandate either holder can ordinarily operate the account, whereas a “jointly” mandate needs every holder to authorise transactions, which the incapacitated holder cannot do, and a bank’s terms may restrict operation once it learns of the incapacity. No provision designed for PVS lets the other spouse manage those affairs. Divorce would also end intestate succession rights between the spouses under the Hindu Succession Act, 1956, so reform must protect the incapacitated spouse.
What Reform Should Look Like: A Dual Hybrid Framework
Parliament should respond in two connected parts, one on marital status and one on protection.
A dedicated ground- Section 13 of the HMA should add permanent incapacity resulting from PVS, or a comparable permanent disorder of consciousness, as a ground open to either spouse. It should require certification by a designated medical board and an observation window (for example 12 to 24 months) before the condition is treated as permanent. Section 10 should carry the same ground, giving families unwilling to dissolve the marriage a middle path.
A Mandatory Care Trust- Dissolution on this ground should create a Care Trust for the incapacitated spouse, and it must be statutory: under Section 7 of the Indian Trusts Act, 1882 a trust is created by a person competent to contract or, with court permission, on behalf of a minor, and an incapacitated adult is neither. The decree should therefore constitute the trust, funded from marital assets, insurance and the other spouse’s means, as far as the estate allows, with the Act’s machinery (ss. 19, 23, 34) applying. The incapacitated spouse can be a beneficiary (s 9). The trustee should be independent, because Section 60 treats a person with an interest inconsistent with the beneficiary’s as not a proper trustee. Enforcement can build on Section 25 of the HMA, which already allows maintenance to be secured by a charge on immovable property and varied if circumstances change. A next friend should represent the beneficiary, with annual accounts to the court.
A faster route on guardianship and property- The HMGA and GWA should provide an expedited, certificate-based procedure for the other spouse to act for the children and to be appointed manager of the incapacitated spouse’s property, with defined powers and court oversight.
The UK Mental Capacity Act 2005 is a useful comparator. It rests on decision-specific capacity, a best-interests standard (ss 1(5), 4) and Court of Protection deputies for welfare and property (ss 16 to 19), and it bars those assessing life-sustaining treatment from being motivated by a desire to bring about death (s 4(5)). It leaves marital status untouched.
Conclusion
Hindu matrimonial law has no ground drafted for permanent loss of consciousness: section 13(1)(iii) fits only by extension, section 13(1)(vii) does not apply, judicial separation shares the same grounds, and the rules on guardianship, banking and property work in fragments. A dedicated ground backed by medical certification, a court-supervised Care Trust and a faster route to authority over children and property would fill these gaps without leaving the incapacitated spouse unprotected.
Marriage has long been treated as a sacrament, and this reform does not weaken that idea. It ensures that the law does not leave one spouse without a remedy once the other has permanently lost the capacity on which the relationship rests, while keeping its duty of care towards the spouse who cannot speak for themselves.
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