KIRIT P.

MEHTA SCHOOL OF LAW, MUMBAI

A PROJECT SUBMITTED

ON

LEPROSY AND VENEREAL DISEASES AS A GROUND FOR

DIVORCE

In compliance to partial fulfilment of the marking scheme for

Semester VII of 2018-19 in the subject of FAMILY LAW.

SUBMITTED TO: Prof. ISHNOOR

SUBMITTED BY: NIKIT BARYA (A008)
ABSTRACT

In India divorce and separation are perceived to be relatively rare events. While quantitative
data are lacking, there is a rich multi-disciplinary literature on various aspects of marital
stability in India. It is necessary to have sexual relationship, to procreate and upbringing of
children, but sometime it happens that due to some reasons the relation of husband and wife
no longer going good due to several reasons hence, they voluntarily or by force want to
separate which means to say that they want to part their ways. There are sexual transmitted
diseases such as leprosy and venereal diseases which are incurable in some form and
therefore a ground for divorce. In this research paper the researcher, will cover the areas of
the sexually transmitting diseases in various laws which are the reasons or the grounds for
divorce and the role of judiciary in granting divorce on such point.

Keywords : Divorce, venereal, leprosy, sexually transmitted, virulent, incurable, judicial

separation.

INTRODUCTION

All over the civilized world, marriage is a very important social institution. Whether
considered as a sacrament or a contract marriage gives rise to status. It confers a status of
husband and wife on the parties to marriage and it confers a status of legitimacy on the
children of marriage. In India, Marriage and Divorce is treated as part of the personal law of
the parties considered mainly by reference to their religious profession. With the
advancement of time and social awareness, several acts have been passed by the government
to make the present day divorce procedure in India more progressive with respect to gender
affairs and related sensitive issues.1

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 rule
in all the matrimonial laws, is based on number of grounds upon which the spouses of
marriage can seek the remedy to terminate the marriage bond.

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

1
Sexually Transmitted diseases A Ground for Divorce under Hindu Marriage Act 1955 , Sexually Transmitted
Infection Sexual Intercourse (2018).
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.2

OBJECTIVES OF THIS RESEARCH PAPER

The objective of this research paper is to analyse the sexually transmitted diseases as a
ground for divorce under Indian Divorce Laws and to understand the relevance of the topic,
the researcher would also discuss various cases laws related to sexual transmitted diseases.

VENEREAL DISEASES AS A GROUND FOR DIVORCE

General definition:

Venereal Diseases are illnesses that have a significant probability of transmission between
humans by means of human sexual behaviour, including vaginal intercourse, oral sex, and
anal sex.3

Venereal disease comprises a number of contagious diseases that are most commonly
acquired in sexual intercourse4. Included in this group are both a destroyer of life (Syphilis)
and a preventer of life (Gonorrhea). The group includes at least three other diseases:
chancroid, lymphogranuloma venereum and granuloma inguinale. The most common form of
venereal disease is Syphilis and Gonorrhea, and of these two, former is considered to be more
dangerous. Gonorrhea is considered to be treatable and in most of the cases complete cure
can be obtained. Syphilis in early stage is also curable. Congenital syphilis is not a disease In
a Communicable form and is thus not considered to be ground of divorce.5

Legal concept

The Parsi Marriage and Divorce Act also provides venereal disease and its infliction to the
petitioner as a ground for divorce. Text of the relevant section of the Act runs as under

2
Dr. Paras Diwan, Modern Hindu law, Twentieth Edition, Allahabad Law Agency 2016.
3
E Pollock and E ·R. Clutterbuck Dictionary ed. 2 vol. 1.
4
Venereal Disease is a result of intercourse, i.e. it originates from it and may be communicable.
5
Divorce under various personal laws: a comparative study, Shodhganga.inflibnet.ac.in (2018),
http://shodhganga.inflibnet.ac.in/bitstream/10603/39005/14/14_chapter%206.pdf.
“ ..Or has infected the plaintiff with the disease. Provided that the divorce shall not be granted
on this ground if the suit has been filed more than two years (ii) after the plaintiff came to
know of the infection”.6

The Dissolution of Muslim Marriage Act 19397

“Provides venereal disease itself as a ground for divorce…It goes on to say that the
husband… is suffering from….virulent venereal disease”

The Special Marriage Act provides-

“Has been suffering from venereal diseases in a communicable form…” 8

Similarly the Hindu Marriage Act, l955 lays down

“Has been suffering from venereal disease in a communicable form”9

Venereal disease is not a ground for divorce or judicial separation under the Indian Divorce
Act, 1869. On the other hand, it is a ground of divorce under the Hindu Marriage Act, 1955,
Special Marriage Act, 1954, the Dissolution of Muslim Marriage Act, l939 and Parsi
Marriage and Divorce Act, 1936. It is also a ground of judicial separation under the first two
statutes. While under the former two statutes the ground is in identical language, under the
last two statutes its language is slightly different. Under the former two statutes venereal
disease has to be in a communicable form, while under the Dissolution of Muslim Marriage
Act, 1939 the disease should be virulent. Under the Parsi Marriage and Divorce Act, 1936
the requirement is that the defendant had infected the plaintiff with the disease.

Thus, under Indian Statutes, the question as to whether the petitioner was ignorant or it was
within his or her knowledge that the other partner whom he or she was going to marry was
suffering from any venereal disease, does not arise. The minimum period before which a
petition for dissolution of marriage cannot be filed of this ground is different in different
statutes. Under the Parsi Marriage and Divorce Act 1936 petition can be presented after
expiry of a minimum period of two years. Further, under that Act the period is to be reckoned
from the date of infection of the disease. However, the provisions of the other Indian statutes,

6
The Parsi Marriage and Divorce Act, 1936, sec.32(e).
7
The Dissolution of Muslim Marriage Act, 1939 sec 2( vi).
8
The Special Marriage Act,1954, sec. 27(f).
9
The Hindu Marriage Act, 1955, sec.13 (1) (y).
viz. the Hindu Marriage Act, 1955, the Special Marriage Act, l954, Dissolution of Muslim
Marriage Act, 1939 , do not provide for any such time-bar and only suffering from venereal
disease will be sufficient for a decree of divorce upon presentation of a petition at any time.
The words for a period of not less than three years immediately preceding the presentation of
the petition under the Hindu Marriage Act, 1955, has since been omitted by (Act No.68).
Marriage Laws Amendment Act, 1976 to take it at par with the provisions of Special
Marriage Act, 1954.

In the absence of case law in India it is difficult to ascertain the meaning and scope of
communicable. There is confusion as to whether it means communicable to husband or wife
only or it includes any person other than the wife or husband. In England it has been laid
down that communicable means communicable to any person, so that where the wife's
syphilis was communicable to a child of the marriage but not to the husband, the husband
was entitled to a decree on the ground of his wife's venereal disease. It is, therefore, height
that venereal disease in a communicable form be made a ground for divorce under unified
law of divorce throughout the territory of India. Indian Divorce Act, 1869 is required to be
amended without delay in deference to the equality provision of the Constitution. In India all
other family laws had already been amended in order to accommodate this ground in them
barring the Indian Divorce Act. Therefore unification of divorce laws will be more pragmatic
if this ground is included in the provisions of the Indian Divorce Act as well.10

LEPROSY AS A GROUND FOR DIVORCE

General definition:

Leprosy is an infectious disease, chronic, contagious, resulted in disfigurement, one of the

causes of permanent disability in the world and is primarily a disease of the poor.

The stigma against the disease due to its disfiguring effects causes its victims to be isolated
and shunned. The disease is now readily treatable with multi-drug therapy and can be used in
the early stages of infection, disability and disfigurement can be avoided.11

10
Premchand Dommaraju, Divorce and Separation in India, 2016 (42) 2 · June 2016.
11
Kounteya Sinha, India has highest number of new leprosy patients - Times of India :The Times of India
(2018), http://articles.timesofindia.indiatimes.com/2010-02-08/india/28115221_1_new-leprosy-mycobacterium-
leprae-highest-number (last visited Sep 20, 2018).
Probably, this apathy towards lepers created a movement in favour of lepers and great leaders
all over the world favoured a human approach towards them. Gandhiji did a lot to ameliorate
their lot. Mother Teresa is also engaged the same work. All over the world, humanists,
sociologists and social workers have been leading movement for a human approach towards
lepers. However, in most systems leprosy has been a ground for divorce.

It is submitted that having a humanist approach towards lepers is one thing, but to compel a
healthy spouse to live with a leper is another matter. A bridge has to be built between them.
We should not allow our minds to be swayed by feelings of emotional loathing and revulsion
with which leprosy patients have been treated throughout human history in all countries
throughout the world and that we should take up a very human and balanced outlook and
accept leprosy as simply another disorder that requires medical attention. That this is a
correct social approach to leprosy should not provide any justifications for compelling a
person to live with a spouse who is suffering from an aggravated form of leprosy and who
can give him and his children leprosy almost any moment in their daily life.

Legal concept

In India this disease is a common problem for all irrespective of their differences in caste,
sect and religion but surprisingly some of the family laws, not all, have only provided for
leprosy as ground for divorce. Such omission do not appear to be deliberate they are rather
the results of reckless legislations in haste.

With the exception of the Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act,
1936, leprosy is a ground of divorce under all other Indian personal laws. Under the Hindu
Marriage Act, 1955 and the Special Marriage Act, 1954 it is both a ground of divorce and
judicial separation. Under Muslim law it is only wife‘s ground for divorce but there is some
On the point of leprosy the Muslim law is not clear.

There is a difference of opinion between prophet Mohommad and Haneefa on the one band
and Abu Yusuf on the other hand. Prophet Mohommad says that the wife is entitled to an
option. Abu Yusuf says that the wife is not entitled to ask for divorce on the round of
husband's leprosy. The Dissolution of Muslim Marriage Act12, allows the wife to divorce her
husband, if the latter suffers from leprosy. Text of the statute makes it obvious that the

12
The Dissolution of Muslim Marriage Act, 1939, sec. 2 (vi).
respondent must be suffering from the disease at the time of presentation of the petition for
divorce.

While petitioner is seeking relief, on a case under the Hindu Marriage Act, the petitioner
must prove

(i) that the respondent has been suffering from leprosy

(ii) that the leprosy is of virulent and incurable form13

According to the Hindu Marriage Act, 195514 if either the husband or the wife is suffering
from leprosy that is both virulent and also incurable, the other spouse can file a petition for
divorce on this basis. For leprosy to be a ground for divorce under HMA it must be both
virulent and incurable. Therefore, leprosy in its early stages is curable and certain amount of
time must elapse before it becomes incurable.

In interpreting the term virulent in connection with a case on leprosy under the Hindu
Marriage Act15, the Supreme Court held that since the word virulent is not used by medical
experts in describing any particular type of leprosy, the meaning of the word has to be found
in the dictionaries, the meaning of the word ‘virulent’ appears in different dictionaries i.e.
The Shorter Oxford English Dictionary etc.16 But, whatever be the dictionary meaning of the
term ‘virulent’ advancement of medical science has now made leprosy mostly curable at any
stage. In the light of this advancement in medical science classification of leprosy should be
made on the basis of their curability and incurability and not on any common sense basis like
virulent and non-virulent leprosy.

AMENDMENTS IN GROUNDS FOR DIVORCE IN 1976

Prior to the 1976 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.

And in the case of venereal diseases, it was essential that the disease is communicable for it
to be a ground for divorce under HMA. 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.
13
Annapurnamma Vs Appa Rao AIR· 1963 A.P. 312.
14
Section 13 (i) (iv) Hindu Marriage Act.
15
Swarajya Lakshmi vs GG Padma Rao AIR 1974 SC 165.
Also, if the petitioner had caused the infection to the respondent, the relief, which he could
claim was only divorce while the other party could have sought either divorce or the lesser
relief of judicial separation.

After the amendment, the time limit of Virulent and incurable leprosy has been removed.
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.

Also, for Venereal diseases, whether or not the petitioner had communicated the disease to
the respondent is now immaterial.

CASE LAWS ON SEXUALLY TRANSMITTED DIESEASE

SWARAJYA LAKSHMI VS. G. G. PADMA RAO17

Facts of the case:

The appellant was suffering from the lepromatous form of leprosy. The respondent" husband,
filed a petition under s. 13(1) (iv) (Virulent and incurable form of leprosy) of the Hindu
Marriage Act, 1955, for the dissolution of the marriage. The ground were that the appellant
had, for a period of not less than 3 years immediately preceding the presentation of the
petition, been suffering from a virulent end incurable form of leprosy. The High Court, in
appeal, granted the decree. Dismissing the appeal to this Court.

Issues before the court:

The issue before the court was that, what is the relevancy of motives of spouses of their
parents.

Judgement by the court:

The form leprosy from which the appellant was suffering was both virulent and incurable and
it was a fit case for granting the decree. The Legislature must be presumed to have known
about their effect on leprosy when the Hindu Marriage Act, 1955, was passed. If it be true
that all types of leprosy are curable by sulphone drugs the legislature would not have
provided for the grant of divorce on the ground of incurable leprosy. It is true that the social
approach to leprosy should be that one should take a very humane outlook and accept leprosy
as simply another disorder that requires medical attention.
17
Swarajya Lakshmi vs. G. G. Padma Rao 1974AIR 165, 1974SCR (2) 97.
But that does not provide any justification for compelling a husband to live with a wife who
is suffering from an aggravated form of leprosy and who ran communicate it to him and his
children almost any moment in their daily life even though the legislature by statute has given
the husband a way of relief. The court cannot take into account while deciding the question
the motives of the spouses for applying for divorce or of their parents in arranging the
marriage.

ANNAPURNA VS. NABAKISHORE SINGH18

Facts of the case:

The appellant is the wife of the respondent who filed an application under Section 13(1)(iv)
of the Hindu Marriage Act (Act 25 of 1955) hereinafter referred to as the Act, asking for
dissolution of the marriage by a decree of divorce. The ground were, that the appellant has
been suffering from a virulent and incurable form of leprosy for a period not less than three
years immediately preceding the presentation of the petition. Without delivering a final
judgment, the learned District Judge passed the following interlocutory order, after discussion
of some of the evidence. The Miscellaneous Appeal has been filed against this order.

Issues before the court:

In this case the onus is on the husband to establish that the leprosy is virulent and incurable.

Judgement by the court:

The order was that she should undergo treatment under any specialist for six months and if at
the end of that she is not free from the disease, hers is a bad case coming under 20 per cent
that are Incurable and thereafter the husband would be free to bring it to the notice of the
Court for passing a decree of divorce. The order passed by the learned District Judge militates
against the very object of Section 13(1)(iv) of the Act. Even if the husband-petitioner
succeeds in proving that the wife suffers from a virulent form of leprosy, the petitioner cannot
succeed unless it is further proved that it is an incurable type.

The impugned order of the learned District Judge is set aside and he is directed to deliver a
final judgment on the evidence on record in accordance with law as soon as possible after
giving opportunities to the parties to present their arguments. The Civil Revision is allowed,
but there will be no order as to costs.
18
Annapurna vs. Nabakishore Singh AIR 1965 Ori 72.
CONCLUSION

It can be concluded from this research that sexually transmitted diseases are those illnesses
which can be transmitted between humans by sexual activity. The legislature and the
judiciary have shown there serious concern on this issue of sexually transmitted disease .But
medical sciences have now advanced and these diseases can be prevented to a certain extent.

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 other person may contact the
disease which may even prove to be death causing for the spouse. 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.

Even in case laws, the judiciary has granted divorce if the spouse has been suffering from any
of these diseases including AIDS. The judiciary has recently even prevented a man from
getting married once he has been diagnosed with AIDS. But it is important to amend the law
as far as leprosy is concerned with regard to advancements in medical science. Spouse should
not be granted divorce if the disease is in its early stages and is curable.
BIBLOGRAPHY

BOOKS:

 Dr. Paras Diwan, Modern Hindu law, Twentieth Edition, Allahabad Law Agency

 Justice P. S. Narayan, Hindu Law, 1st edition, Asia Law House, Hyderabad.

Articles:

 Divorce Laws/ Husband files for divorce as wife suffering from Venereal disease.
http://www.legalserviceindia.com/lawforum/index.php?topic=1628.0
 Leprosy discrimination, Even in the eyes of law, 02 September 2011 at 09:22
available at http://tamilnadu.indiaeveryday.in/news-leprosy-discrimination-even-in-
the-eyes-of-law-1136-2990496.html.
 Premchand Dommaraju, Divorce and Separation in India, 2016 (42) 2 · June 2016.
 Kounteya Sinha, India has highest number of new leprosy patients - Times of India
:The Times of India (2018), http://articles.timesofindia.indiatimes.com/2010-02-
08/india/28115221_1_new-leprosy-mycobacterium-leprae-highest-number (last
visited Sep 20, 2018).

Cases:

 Swarajya Lakshmi Vs. G. G. Padma Rao

 Annapurna Vs. Nabakishore Singh

 Annapurnamma Vs Appa Rao Air

Acts:

 The Parsi Marriage and Divorce Act, 1936.

 The Dissolution of Muslim Marriage Act, 1939.

 The Special Marriage Act,1954.

 The Hindu Marriage Act, 1955.