“AIDS AS A GROUND FOR DIVORCE”

FINAL DRAFT SUBMITTED IN THE PARTIAL FULFILLMENT OF THE COURSE

TITLED

FAMILY LAW- I

SUBMITTED TO SUBMITTED BY

MRS.POOJA SRIVASTAVA NAME- SANKET SHIVANSH

TEACHER ASSOCIATE COURSE-BBA.,LLB(HONS.)

ROLL NO. - 2036

SEMESTER – 3RD

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA-800001

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DECLARATION BY THE CANDIDATE

I, SANKET SHIVANSH, student of Chanakya National Law University hereby declare that the
work reported in the B.B.A.LL.B. (HONS.) project report entitled: “AIDS AS A GROUND
FOR DIVORCE “submitted at Chanakya National Law University, Patna is an authentic record
of my work carried out under the supervision of Mrs.Pooja Srivastava. I have not submitted this
work elsewhere for any other degree or diploma. I am responsible for the contents of my Project
Report.

(Signature of the Candidate)

NAME: SANKET SHIVANSH

ROLL NO: 2036

COURSE: B.B.A., LL.B. (Hons.)

SEMESTER: 3RD

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ACKNOWLEDGEMENT

I would like to thank my faculty Mrs.Pooja Srivastava whose guidance helped me a lot with
structuring of my project. I take this opportunity to express my deep sense of gratitude for his
guidance and encouragement which sustained my efforts on all stages of this project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present
way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped me
out at every stage of my project.

THANK YOU

NAME: SANKET SHIVASH

ROLL NO: 2036

COURSE: B.B.A., LL.B. (Hons.)

SEMESTER: 3rd

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 CONTENTS

CHAPTER1: INTRODUCTION .................................................................................................... 5

CHAPTER2: VENEREAL DISEASES & AIDS AS A GROUND FOR DIVORCE ................... 9
VENEREAL DISEASE .............................................................................................................. 9
LEPROSY ................................................................................................................................. 11
CHAPTER3: AMENDMENTS IN GROUNDS FOR DIVORCE IN 1976 ................................. 12
CHAPTER4: CASE LAWS ON SEXUALLY TRANSMITTED DISEASES ............................ 13
CHAPTER5: CONCLUSION AND SUGGESTION ................................................................... 15
BIBLIOGRAPHY ......................................................................................................................... 16
ARTICLES ............................................................................................................................... 16
BOOKS ..................................................................................................................................... 16

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 CHAPTER1: INTRODUCTION

In a secular nation like India, a great deal of accentuation is given to the different religions
rehearsed inside the nation including Hindu, Muslims, Parsi, and so forth and every one of these
religions are represented by their very own laws. Despite the fact that according to our
constitution, same law is connected to each resident, each religion has and needs its very own
laws as every religion has its own qualities, conventions, ceremonies and traditions.

The establishment of marriage is all inclusive and is required under each religion. It might be
viewed as an agreement, a ceremony or both contract and holy observance in different religions
and having a sexual relationship is required for the reproduction of kids. In any case, some of the
time it so happens that because of a few reasons the connection between a spouse and a wife gets
stressed and they, either deliberately or by power need to go separate ways. Separation as an idea
isn't new among the Hindus. Before the Hindu marriage act the standard laws, in different
occurrences, acknowledged separation. Baroda was the principal Indian state to present
separation for all Hindus by enactment in 1971.

In this research the researcher, will cover the zones of the sexually transmitting disease (like
infection and HIV) in the Hindu marriage which are the reasons or the justification for
separation.

Sexually Transmitted Disease (STD) likewise now alluded to as sexually transmitted infections
(STI) and Venereal Diseases (VD), are ailments that can be transmitted between people by
methods for sexual conduct including vaginal intercourse, oral sex, and anal sex. Sexually
transmitted diseases are presently alluded to as sexually transmitted infections. These diseases
are a ground for separation or legal partition however they should be in a transmittable structure.
The intrinsic syphilis is rejected from its ambit. According to the law, regardless of whether the
illness is treatable or was contracted is insignificant. 1

1
Grounds for divorce in India, Advocate Khoj available at
http://www.advocatekhoj.com/library/lawareas/divorceinindia/7.php?Title=Grounds%20for%20Divorce%20in%20I
ndia

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In this research, we have managed Leprosy if there should be an occurrence of a destructive and
hopeless type of uncleanliness, an appeal can be recorded by the other companion dependent on
this ground, Venereal Disease-If either life partner is experiencing a venereal ailment that is
transmittable, a separation can be documented by the contrary party. Sexually transmitted
maladies including Acquired Immune Disease Syndrome (AIDS) are accounted to be Venereal
Diseases. Initially it was basic to have the illness for a long time before separation can be
petitioned for however now, after the Marriage Laws (Amendment) Act, 1976, it tends to be
petitioned for right away.

In this venture the analyst has managed the significant issues starting from the recorded
foundation to the importance and ambit of the STD's and how it has been fused in our legitimate
framework and translated in different cases in the Indian courts.2

AIMS AND OBJECTIVE

 To study about the sexually transmitted diseases (especially AIDS) as a ground for
divorce.
 To study the issue in depth and its relevance in the present scenario as it is not very easy
to find information regarding such issues as they are critical in nature.
 To analyze certain case laws related to the research topic.

HYPOTHESIS

Sexual Transmitted Diseases are made a ground for divorce because it is a threat to the life of
other partner.

2
Leprosy discrimination, Even in the eyes of law, 02 September 2011 at 09:22 available
athttp://tamilnadu.indiaeveryday.in/news-leprosy-discrimination-even-in-the-eyes-of-law-1136-2990496.htm

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RESEARCH METHODOLOGY
The researcher will use doctrinal mode of research for the completion of the project.

RESEARCH QUESTION

 What are venereal diseases and how are they treated in the Hindu Marriage Act, 1955?
 Whether Sexually Transmitted Diseases are a ground of divorce under the Hindu
Marriage Act, 1955?
 Why this clause on Sexually Transmitted Disease (STD) was inserted under the Hindu
Marriage Act, 1955 as a ground of divorce?
 How is a case of sexually transmitted diseases interpreted in the Indian courts?

REVIEW OF LITERATURE:

Books referred:

1. Law Commission of India, Fifty Ninth Reports on Hindu Marriage Act, 1955 And Special
Marriage Act, 1954, March 1974.

The researcher has studied the chapter on Divorce under the Hindu Marriage Act in this book.
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,
conversion, incurable insanity, virulent and incurable leprosy, venereal disease, renunciation of
the world by entry into a religious order and lastly wife can petition for divorce on certain special
grounds.

2. Family Law, Paras Diwan, Allahabad Law Agency, Eighth Edition, 2008

From this book, the general introduction of leprosy and venereal disease has been taken, the
provisions covered by the Hindu Marriage Act, 1955 and some of the important landmark cases
under the act have also been considered.

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LIMITATION OF STUDY

The researcher has time limitations in completing this project.

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CHAPTER2: VENEREAL DISEASES & AIDS AS A GROUND 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 (since these conditions involve the transmission of an
infectious organism between sex partners) as it has a broader meaning; a person may be infected,
and may potentially infect others, without having a disease or can be spread through by contact
with blood during sexual activity, any type of sexual activity and also most often caused by
viruses and bacteria.

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. Prior to the inventions of modern medicines, sexually transmitted
diseases were generally incurable and treatment was limited to treating the symptoms of the
disease. In the 1980s, AIDs emerged into the public consciousness as sexually transmitted
diseases that could not be cured by modern medicine. 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, which leads rapidly to death unless treated.
Today, more than 20 different STDs have been identified.3

VENEREAL DISEASE

A venereal disease is a disease (such as gonorrhea or syphilis) that is passed from one person to
another through sexual intercourse.4

3
http://www.advocatekhoj.com/library/lawareas/divorceinindia/7.php?Title=Grounds%20for%20Divorce%20in%20
india
4
http://www.merriam-webster.com/dictionary/venereal%20disease

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If one of the spouses is suffering from a serious disease that is easily communicable, a divorce
can be filed by the other spouse. The Sexually transmitted diseases like AIDS are accounted to
be venereal diseases.5

It is a ground for divorce or judicial separation under matrimonial laws of most Indian
communities including the Hindu Marriage Act, 1955. It comprises a number of contagious
diseases that are most commonly acquired at the time of sexual intercourse.6

The ground under the HMA runs as: the respondent “has been suffering from venereal disease in
a communicable form.” 7 Congenital syphilis is not included within the expression “virulent
venereal disease” or “venereal disease in a communicable form.” but syphilis and gonorrhoea are
the most common form of venereal disease.

In the case of Mr. X v. Z hospital8, Divorce was granted to wife when husband was discovered to
be HIV positive. It was held in this case by the court that since venereal disease is a ground for
divorce, it indicates that if a person, prior from marriage, is suffering from venereal disease he
must be restrained from entering into marriage. It is immaterial whether it is curable or it was
contracted innocently. The Hindu Marriage Act does not say that the disease should not have
been contracted from the petitioner. If the case is so, under section 23(1) (a), the decree of
divorce cannot be passed as it would be amount taking advantage of one’s own wrong.

In a landmark judgment in April 2013, the Supreme court has equated HIV + with venereal
diseases. 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 divorce9.

5
http://www.advocatekhoj.com/library/lawareas/divorceinindia/7.php?Title=Grounds%20for%20Divorce%20in%20
india
6
http://www.goforthelaw.com/articles/fromlawstu/article42.htm - _ftn12
7
Section 13(1)(v) of the Hindu Marriage Act
8
AIR 1999 SC 495
9
Court equates HIV + with veneral diseases, grants man divorce, L Saravanan, TNN, The Times of India available
at http://timesofindia.indiatimes.com/city/chennai/Court-equates-HIV-with-venereal-disease-grants-man-
divorce/articleshow/19734016.cms

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Justice Ramanathan had held in this case that – “In the year 1955, HIV was not heard of and,
therefore, it was not named in the Hindu Marriage Act as one of the grounds for dissolution of
marriage. But having regard for the fact that venereal disease in a communicable form has been
mentioned as one of the grounds for divorce, any such disease will also come under the provision
of the Section 13(v). Therefore, it cannot be contended that HIV-positive condition is not
included under the section and therefore divorce cannot be granted."

LEPROSY
Leprosy, also known as Hansen’s disease, is a chronic infection caused by the bacbacteria
Mycobacterium leprae and Mycobacterium leprimatosis. Initially infections are without
symptoms and typically remain this ay for 5 to 20 years10

Leprosy is an infectious disease. It is chronic, contagious and results in disfigurement, one of the
causes of permanent disability in the world. The stigma against the disease due to its disfiguring
effects that leads to isolation of its victims and the society shuns them. Leprosy can now be
treated with multi drug therapy and early stages of disability and infections can be evaded.

It is important to note that 55% of leprosy cases in the world are in India.11

Leprosy is a ground for divorce and judicial separation under most of the matrimonial laws of the
Indian communities. Under the Hindu marriage act, the ground runs: respondent “has been
suffering from virulent and incurable form of leprosy.”12

According to the Hindu Marriage Act, 1955 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. Malignant and Venomous leprosy are the two virulent forms of
leprosy.13

10
Leprosy Fact sheet N°101". World Health Organization. Jan 2014.
11
http://www.tlmindia.org/index.php/about-leprosy/facts
12
Leprosy Fact sheet N°101". World Health Organization. Jan 2014.
13
Section 13 (i)(iv) HMA

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 CHAPTER3: 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. 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.14

14
Section 13 (i)(iv) HMA

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 CHAPTER4: CASE LAWS ON SEXUALLY TRANSMITTED DISEASES

MR X (Appellant) Versus Hospital Z (Respondent) (1998)8 Supreme Court Cases 296

In this case - 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,
his marriage was called of. . 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.

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, her right to be informed will override the Appellants right to privacy.
Further, 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. The Court further held that the
Appellants right to marry was suspended until he was completely cured of the disease. This
decision was based on various statutes, The court held that if the appellant decided to get
married, he would be punishable under the Indian Penal Code.15

P. Ravikumar (Petitioner) vs. Malarvizhi @ S. 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, 1955. His argument was that he had married the respondent
with whom he had a child and during tests he found out that his was, the respondent, was
suffering from AIDS and he had not contracted the disease and apprehended that he might if he

15
Mr. X (Appellant) vs. Hospital Z (Respondent) (1998)8 Supreme Court Cases 296

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continued his sexual relationship with her and so he filed a petition for divorce. The Trial Court
had granted divorce and first appellate court had allowed the appeal.

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 respondent felt that the blood
test taken earlier was not true and thus wanted both parties to take a blood test in a government
institution. In this case it was proved during medical examination that the respondent was HIV +
while the petitioned was not. The petition was allowed and the parties were directed to appear
before the Dean, Madras Medical College Hospital, and Chennai to find out whether they are
suffering from AIDS16

16
P. Ravikumar (Petitioner) vs. Malarvizhi @ S. Kokila(Respondent) on 17 February 2011

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 CHAPTER5: CONCLUSION AND SUGGESTION

The hypothesis that the researcher took before starting research work stands true. The basic
objective of such provision is to safeguard the health and body of the other partner. There can be
no justification as to why not to safeguard the other partner from potential threats which may
extend to threat to life.

It can be concluded from this research that sexually transmitted diseases are those illnesses
which can be transmitted between humans by sexual activity. 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 contract 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.

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 BIBLIOGRAPHY

The researcher has consulted following sources to complete the final proposal:

Secondary Source

Articles
 Grounds for divorce in India, advocatekhoz.com (2015),
http://www.advocatekhoj.com/library/lawareas/divorceinindia/7.php?Title=Grounds%20f
or%20Divorce%20in%20India (last visited Jul 23, 2019).
 Deepa Das Acevedo, Developments in Hindu Law from the Colonial to the Present, 7
Religion Compass (2013).
 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
athttp://tamilnadu.indiaeveryday.in/news-leprosy-discrimination-even-in-the-eyes-of-
law-1136-2990496.htm
 X v. Z hospital on AIDS, Legal Services India available at
http://www.legalservicesindia.com/articles/a1ds.htm
 Court equates HIV + with veneral diseases, grants man divorce, L Saravanan, TNN, The
Times of India available at http://timesofindia.indiatimes.com/city/chennai/Court-
equates-HIV-with-venereal-disease-grants-man-divorce/articleshow/19734016.cms

Books
 Diwan, P. (1974). Modern Hindu law. Allahabad: Allahabad Law Agency.
 Agarwal, R. (1958). Hindu Law (25th ed.). Allahabad: Central Law Agency.
 Gandhi, B. (2008). Hindu law. Lucknow: Eastern Book Co.

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