Title: Sexually Transmitted diseases: A Ground for Divorce under Hindu Marriage Act, 1955 Introduction In a secular country like India, a lot of emphasis is given to the various religions practiced within the country including Hindu, Muslims, Parsi, etc and all these religions are governed by their own personal laws. Although as per our constitution, same law is applied to every citizen, every religion has and wants its own personal laws as each religion has its own values, traditions, rituals and customs. The institution of marriage is universal and is mandatory under every religion. It may considered to be a contract, a sacrament or both contract and sacrament in various religions and having a sexual relationship is required for the procreation of children. But sometimes it so happens that due to several reasons the relation between a husband and a wife gets strained and they, either voluntarily or by force want to part ways. Divorce as a concept is not new amongst the Hindus. Before the Hindu marriage act the customary laws, in various incidents, accepted divorce. Baroda was the first Indian state to introduce divorce for all Hindus by legislation1 in 1971. In this research project the researcher, will cover the areas of the sexually transmitting diseases (like leprosy and HIV) in the Hindu marriage which are the reasons or the grounds for divorce. Sexually transmitted diseases (STD) also now referred to as sexually transmitted infections (STI) and Venereal Diseases (VD), are illnesses that can be transmitted between humans by means of sexual behavior including vaginal intercourse, oral sex, and anal sex. STD’s are now referred to as sexually transmitted infections. These diseases are a ground for divorce or judicial separation but they must be in a communicable form. The congenital syphilis is excluded from its ambit. As per the law, whether the disease is curable or was contracted is immaterial. In this research, we have dealt with Leprosy- In case of a virulent and incurable form of leprosy, a petition can be filed by the other spouse based on this ground, Venereal Disease- If either 1 The Baroda Hindu Divorce Act, 1931, referred to in Report of Hindu Law Committee (1947), page 27, paras 109,110. Originally it was essential to have the disease for three years before divorce can be filed for but now. a divorce can be filed by the opposite party. In this project the researcher has dealt with the important issues beginning from the historical background to the meaning and ambit of the STD’s and how it has been incorporated in our legal system and interpreted in various cases in the Indian courts. Sexually transmitted diseases including Acquired Immune Disease Syndrome (AIDS) are accounted to be Venereal Diseases.spouse is suffering from a venereal disease that is communicable. . 1976. it can be filed for immediately. after the Marriage Laws (Amendment) Act. venereal disease. Fifty Ninth Reports on Hindu Marriage Act. the provisions covered by the Hindu Marriage Act. The researcher wants to study the issue in depth and its relevance in the present scenario but it is not very easy to find information regarding such issues as they are critical in nature. Review of Literature: Books referred: 1. conversion. 1955 and some of the important landmark cases under the act have also been considered. Allahabad Law Agency. 1955 And Special Marriage Act. Advocate Khoj available at . 1955. The specific area referred to was the significance of Hindu Marriage Act whose section 13 was taken into consideration which talks about divorce on the ground of living in adultery. 2008 From this book. renunciation of the world by entry into a religious order and lastly wife can petition for divorce on certain special grounds. 1954. the general introduction of leprosy and venereal disease has been taken. Articles Referred 1. Paras Diwan. The researcher has studied the chapter on Divorce under the Hindu Marriage Act in this book. Grounds for divorce in India. March 1974. 2.Statement of Problem: The topic of my research is sexually transmitted disease: ground for divorce under Hindu marriage act. Law Commission of India. Eighth Edition. Family Law. incurable insanity. virulent and incurable leprosy. The decision was most unfortunate and arrived at in haste without fully comprehending the issues and being sensitive to them.htm This Article talks about the stigma and discrimination faced by the patients who are suffering from leprosy even though medicine has now found a cure for it.advocatekhoj. 2. Z hospital on AIDS. Even in the eyes of law. The time has come to made necessary amendments that do not discriminate against leprosy-affected people. a divorce can be filed by the other spouse. Leprosy – In case of a ‘virulent and incurable’ form of leprosy. But now things have changed and the article clearly says that today leprosy is a curable disease and prior most of the laws were made when cure was not there.com/library/lawareas/divorceinindia/7. X v. 1955 clearly states that leprosy is a ground for divorce.in/news-leprosy-discrimination-even-in-the-eyes-of-law-11362990496. Section 13 (1) of the HMA.php?Title=Grounds%20for %20Divorce%20in%20India This article lays down the grounds for divorce in India which includes leprosy and venereal diseases. The decision of the Supreme Court sent shock waves among the HIV community throughout the world. 02 September 2011 at 09:22 available at http://tamilnadu. The Court overlooked the larger picture while deciding the current matter and . Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable. Legal Services India available at http://www. Leprosy discrimination.http://www.legalservicesindia.indiaeveryday. The Sexually transmitted diseases like AIDS are accounted to be venereal diseases. 3.htm The landmark judgement of this case was on sexually transmitted diseases.com/articles/a1ds. a petition can be filed by the other spouse based on this ground. grants man divorce.failed to recognise that its decision would impact not just the Appellant but the entire AIDS struck community at large. It was held that when a spouse is HIV. which would defeat the very objective of prevention of transmission of such diseases.cms In this case the Madurai bench of the Madras high court has granted divorce to a man on the ground that his wife was HIV-positive. he shall be punishable under section 269 & 270 of the Indian Penal Code. The court had taken away the persons fundamental right to marry. In this case the court had held that the Appellants right to marry was suspended until complete cure of the Appellants dreadful disease. TNN. equating the condition to a venereal disease. L Saravanan. The Court based this decision on various Statutes which give right to spouse to seek divorce on ground of the other suffering from a communicable venereal disease such as AIDS. they were setting a precedent which would only drive the disease underground. 4. Court equates HIV + with veneral diseases.indiatimes. the court had also failed to recognize that by allowing a doctor to break his duty to maintain secrecy. . Moreover.com/city/chennai/Court-equates-HIV-withvenereal-disease-grants-man-divorce/articleshow/19734016.positive. The Court had held that in the event the Appellant did decide to marry while suffering from such dreadful disease. the other spouse is entitled for divorce under the Hindu Marriage Act. The Times of India available at http://timesofindia. Objectives: 1 2 3 To analyse the sexually transmitted diseases as a ground for divorce under Hindu Law. 1955 as a ground of divorce? 2. Methodology: The Researches has followed doctrinal method of research. Various books. Whether sexually transmitted diseases are a ground of divorce under the Hindu Marriage Act. Research Questions: 1. . articles and cases pertaining to the research topic have been studied. 1955. 1955. 1955 and why this clause on Sexually Transmitted Disease (STD) was inserted under the Hindu Marriage Act. To analyse certain case laws related to the research topic. To understand the relevance of the topic under the Hindu marriage act. How is a case of sexually transmitted diseases interpreted in the Indian courts Scope: The scope of this research is limited to the sexually transmitted diseases as a ground of divorce under the Hindu Marriage Act. Sexually Transmitted Diseases Sexually transmitted diseases (STD) also now referred to as sexually transmitted infections (STI) and Venereal Diseases (VD). a person may be infected. and anal sex. . In the 1980s. Prior to the inventions of modern medicines. The first well-recorded European outbreak of what is now known as syphilis occurred in 1494 when it broke out among French troops after then the disease swept across Europe. killing more than five million people. any type of sexual activity and also most often caused by viruses and bacteria. AIDs emerged into the public consciousness as sexually transmitted diseases that could not be cured by modern medicine. STD’s are now referred to as sexually transmitted infections (since these conditions involve the transmission of an infectious organism between sex partners) as it has a broader meaning. and may potentially infect others. Today. oral sex. more than 20 different STDs have been identified. which leads rapidly to death unless treated. sexually transmitted diseases were generally incurable and treatment was limited to treating the symptoms of the disease. are illnesses that can be transmitted between humans by means of sexual behavior including vaginal intercourse. without having a disease or can be spread through by contact with blood during sexual activity. AIDs in particular has a long asymptomatic period-during which time HIV can replicate and the disease can be transmitted to others which is followed by a symptomatic period. is suffering from venereal disease he must be restrained from entering into marriage. i It is a ground for divorce or judicial separation under matrimonial laws of most Indian communities including the Hindu Marriage Act. the Supreme court has equated HIV + with venereal diseases.Venereal Disease A venereal disease is a disease (such as gonorrhea or syphilis) that is passed from one person to another through sexual intercourse.2 If one of the spouses is suffering from a serious disease that is easily communicable. But having regard for the fact that venereal disease in a communicable form has been 2 http://www. a divorce can be filed by the other spouse. the decree of divorce cannot be passed as it would be amount taking advantage of one’s own wrong. The court granted divorce to a man on the basis that his wife was HIV + and it was held in this case that HIV infection being a communicable health hazard. a person testing positive for the virus should be considered an acceptable ground for divorce. prior from marriage. If the case is so. it was not named in the Hindu Marriage Act as one of the grounds for dissolution of marriage. it indicates that if a person.”iii Congenital syphilis is not included within the expression “virulent venereal disease” or “venereal disease in a communicable form. 1955. under section 23(1) (a).iv Divorce was granted to wife when husband was discovered to be HIV positive. The Sexually transmitted diseases like AIDS are accounted to be venereal diseases. In the case of Mr. The Hindu Marriage Act does not say that the disease should not have been contracted from the petitioner. In a landmark judgment in April 2013. Justice Ramanathan had held in this case that – “In the year 1955. HIV was not heard of and.com/dictionary/venereal%20disease . X v.ii The ground under the HMA runs as: the respondent “has been suffering from venereal disease in a communicable form.” but syphilis and gonorrhoea are the most common form of venereal disease. Z hospital.merriam-webster. It was held in this case by the court that since venereal disease is a ground for divorce. therefore. It is immaterial whether it is curable or it was contracted innocently. It comprises a number of contagious diseases that are most commonly acquired at the time of sexual intercourse. mentioned as one of the grounds for divorce." . Therefore. any such disease will also come under the provision of the Section 13(v). it cannot be contended that HIV-positive condition is not included under the section and therefore divorce cannot be granted. the other spouse can file a petition for divorce on this basis. Initially infections are without symptoms and typically remain this ay for 5 to 20 years. contagious and results in disfigurement.vi Leprosy is a ground for divorce and judicial separation under most of the matrimonial laws of the Indian communities.”vii According to the Hindu Marriage Act. For leprosy to be a ground for divorce under HMA it must be both – virulent and incurable. Malignant and Venomous leprosy are the two virulent forms of leprosy.v Leprosy is an infectious disease. Therefore. Under the Hindu marriage act. is a chronic infection caused by the bacbacteria Mycobacterium leprae and Mycobacterium leprimatosis. also known as Hansen’s disease.Leprosy Leprosy. The stigma against the disease due to its disfiguring effects that leads to isolation of its victims and the society shuns them. . one of the causes of permanent disability in the world. the ground runs: respondent “has been suffering from virulent and incurable form of leprosy. It is important to note that 55% of leprosy cases in the world are in India. 1955 if either the husband or the wife is suffering from leprosy that is both virulent and also incurable. Leprosy can now be treated with multi drug therapy and early stages of disability and infections can be evaded. It is chronic. leprosy in its early stages is curable and certain amount of time must elapse before it becomes incurable. It was on the petitioner had to show that the disease had been affecting the respondent for at least three years preceding the filing of the petition. Also. Incurable and virulent form of leprosy is a ground for divorce (or judicial separation) and the petitioner need not prove any time period for relief. whether or not the petitioner had communicated the disease to the respondent is now immaterial. Also. After the amendment. Leprosy in virulent and incurable form was a ground for judicial separation if had been persisting for at least three years prior to the date of petition. for Venereal diseases. if the petitioner had caused the infection to the respondent. the relief. the time limit of Virulent and incurable leprosy has been removed. And in the case of venereal diseases. . which he could claim was only divorce while the other party could have sought either divorce or the lesser relief of judicial separation. it was essential that the disease is communicable for it to be a ground for divorce under HMA.Amendments in grounds for divorce in 1976 Prior to the 1976 amendment. The court held that if the appellant decided to get married. he would be punishable under the Indian Penal Code. The Trial Court had granted divorce and first appellate court had allowed the appeal. The Appellant had appeared before the Supreme Court contending that the principle of Duty of care applicable to people in medical profession included the Duty to maintain confidentiality and the said duty had a correlative right vested in the patient that whatever came to the knowledge of the doctor would not be divulged. was suffering from AIDS and he had not contracted the disease and apprehended that he might if he continued his sexual relationship with her and so he filed a petition for divorce. Malarvizhi @ S. his marriage was called of. 1955. Kokila (Respondent) on 17 February 2011 In this case the appellant (husband) is the petitioner and he had filed for divorce under section 13(1) (5) of the Hindu Marriage Act. P. The respondent felt that the blood . The current petition was filed by the petitioner so as to pass a direction directing both parties to undergo medical examination to find out whether they were suffering from AIDS but the wife contrasted it stating that it was irrelevant to decide the appeal.The Appellants blood was to be transfused to another and therefore a sample thereof was taken at the Respondents Hospital and the appellant was found to be HIV+ which was disclosed by the hospital authorities without the appellants consent and as a result of which. The Court had held in this case that in the event of a conflict between the Appellants fundamental right to privacy and his to be wife.s fundamental right to be informed about any threat to her life/health. Ravikumar (Petitioner) vs. . This decision was based on various statutes. the Court held that the duty to maintain secrecy in every Doctor-Patient relationship was also not absolute and such duty could be broken when needed. her right to be informed will override the Appellants right to privacy. The Court further held that the Appellants right to marry was suspended until he was completely cured of the disease. the respondent. His argument was that he had married the respondent with whom he had a child and during tests he found out that his was.Case Laws on Sexually Transmitted Diseases MR X (Appellant) Versus Hospital Z (Respondent) (1998)8 Supreme Court Cases 296 In this case . Further. and Chennai to find out whether they are suffering from AIDS . The petition was allowed and the parties were directed to appear before the Dean. In this case it was proved during medical examination that the respondent was HIV + while the petitioned was not.test taken earlier was not true and thus wanted both parties to take a blood test in a government institution. Madras Medical College Hospital. Spouse should not be granted divorce if the disease is in its early stages and is curable. Asia Law House. S. 1st edition. Diseases such as leprosy and venereal diseases are a ground for divorce under the Hindu marriage act so as to save the opposite party from harm. The judiciary has recently even prevented a man from getting married once he has been diagnosed with AIDS. References Books: 1.Conclusion It can be concluded from this research that sexually transmitted diseases are those illnesses which can be transmitted between humans by sexual activity. Justice P. Paras Diwan. Dr.0 2. Twentieth Edition. the judiciary has granted divorce if the spouse has been suffering from any of these diseases including AIDS. http://www. Certain amendments have also been made in 1976 so as to ensure the protection of people and thus reducing the time limit for granting a divorce if the spouse is suffering from venereal diseases.advocatekhoj. Advocate Khoj available at 3. Modern Hindu law. Narayan. The other person may contract the disease which may even prove to be death causing for the spouse.php?Title=Grounds %20for%20Divorce%20in%20India . Even in case laws. Hindu Law.php?topic=1628. Divorce Laws/ Husband files for divorce as wife suffering from Venereal disease. Allahabad Law Agency 2. But medical sciences have now advanced and these diseases can be prevented to a certain extent.com/library/lawareas/divorceinindia/7.legalserviceindia.com/lawforum/index. http://www. Grounds for divorce in India. Hyderabad Articles: 1. But it is important to amend the law as far as leprosy is concerned with regard to advancements in medical science. Legal Services India available at http://www.htm 5. Court equates HIV + with veneral diseases. TNN. L Saravanan. Z hospital on AIDS.cms . Leprosy discrimination. The Times of India available at http://timesofindia.com/city/chennai/Courtequates-HIV-with-venereal-disease-grants-man-divorce/articleshow/19734016.com/articles/a1ds.indiatimes.htm 6. 02 September 2011 at 09:22 available at http://tamilnadu. grants man divorce.4.indiaeveryday. Even in the eyes of law. X v.in/news-leprosy-discrimination-even-in-the-eyes-of-law1136-2990496.legalservicesindia. advocatekhoj.ihttp://www.goforthelaw. vi http://www.htm .org/index.php/about-leprosy/facts vii Section 13 (i)(iv) HMA .com/articles/fromlawstu/article42.com/library/lawareas/divorceinindia/7. World Health Organization.tlmindia. Jan 2014._ftn12 iii Section 13(1)(v) of the Hindu Marriage Act iv AIR 1999 SC 495 v "Leprosy Fact sheet N°101".php?Title=Grounds%20for%20Divorce%20in%20india ii http://www.
Report "Sexually Transmitted diseases A Ground for Divorce under Hindu Marriage Act 1955-Guneet Banga-Nirma University.docx"