Bombay High Court Refuses To Grant Divorce To Artist Who Falsely Accused Wife Of Being HIV Positive

A division bench of Justices Nitin Jamdar and Sharmila Deshmukh dismissed an artist's appeal from 2011 against a Family Court order refusing divorce under Section 13 (1)(i-a) (i-b) and (v) of Hindu Marriage Act, 1955.

"Petitioner cannot be permitted to take advantage of his own wrong. In spite of the report… which shows the test result as HIV DNA "not detected", the Petitioner has refused to co-habit with the Respondent and defamed the Respondent (wife) in the society by informing relatives and friends that the Respondent (wife) has tested positive."

While the Family Court dismissed the husband's divorce petition filed in 2008, another court party allowed the wife's DV complaint against the husband. The parties were married on March 16, 2003.

The husband submitted that his wife suffered from Tuberculosis and he was providing her with the necessary medical facilities. However, she was whimsical, short-tempered and stubborn and misbehaved with her family. Their fights caused him mental agony, he claimed. A year after the marriage, the wife contracted "herpes" and her HIV test turned out positive, again causing him mental agony. Moreover, she left the house in 2005.

Apparently when she returned to her matrimonial home two years later, she was asked to return as the mother-in-law was mentally disturbed. The man's lawyer argued that there was an irretrievable breakdown of marriage.

Conversely, the wife claimed that she had tested negative for HIV. Despite this the man was spreading rumours about her causing her a great deal of mental agony. She submitted through her lawyer that her "social life was destroyed." Moreover, under section 12 of the DV proceedings a court had directed the husband to pay Rs 5 lakh towards damages and a 1-BHK flat for her accommodation.

In its order the bench noted that the husband failed to give details of any specific incidents of his parents being treated badly. There were also no details of quarrels between the two. However, the man revealed during the cross-examination that his wife hadn't mentally or physically tortured him. Regarding allegations about being HIV positive, the bench noted that no report was produced to demonstrate the same.

The woman had examined a scientist in National Aids Research Institute who identified the tests conducted in his laboratory showing that the petitioner was not suffering from HIV.

"The burden was cast upon the Petitioner to prove that the Respondent was suffering from venereal disease in a communicable form. There is not an iota of evidence produced by the Petitioner that the Respondent had tested positive for HIV, which caused him mental agony or that the Respondent has treated him with cruelty," the bench observed.

The court also rejected the husband's allegation of desertion based on his admission that he asked his wife to leave the matrimonial home following his mother's objection.

"In our opinion, the Petitioner has failed to prove the essential ingredients of desertion i.e. both the factum of separation and animus deserendi," the bench said and dismissed his appeal.

Case Title: Prasanna Krishnaji Musale versus Mrs. Neelam Prasanna Musale

Citation: 2022 LiveLaw (Bom) 456  

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