A person suffering from Hepatitis B which could be communicated by sexual access is not a ground which is available under Section 13 of the Hindu Marriage Act, the court said while dismissing
The Punjab and Haryana High Court, has held that merely because a spouse is having a Sexually Transmitted Disease, and consequentially the other spouse being not possible for that reason, does not constitute ‘cruelty’ for the purpose of getting divorce under Section 13 of the Hindu Marriage Act. Justice K. Kannan said that, though it has been held that refusal of sexual access is a ground for divorce, having a communicable disease does not afford a spouse a ground for divorce under the scheme of the Hindu Marriage Act.
The Civil revision petition was filed by the Husband, aggrieved by an order of Trial court, declining an application filed by him seeking direction for medical examination of his wife. He claimed that his wife suffers from Hepatitis B, an infectious illness which is transmissible by exposure to infectious blood or body fluids such as semen and vaginal fluids and hence the sexual access to his wife suffering from Hepatitis B will be communicated to himself and he will be denied of the sexual access to the wife. This, according to the husband, will constitute cruelty.
Having a ‘Communicable disease’ is no ground for divorce
The court observed that,if a spouse refuses sexual access to his/her partner, such a voluntary refusal would itself constitute a cruelty and afford a ground for divorce. But, the apprehension of the husband is that if he has access to the wife, he will get infected with Hepatitis B, is no ground for divorce. The court observed “A person suffering from Hepatitis B which could be communicated by sexual access is not a ground which is available under Section 13. Perhaps it is - the Parliament to look into the issue of whether any illness in communicable form could afford ground for divorce. So long as legislation does not provide for such a course, it is not possible for allowing for the husband to make out a case for examination of the wife to assess whether she is suffering from Hepatitis B or not.”
Cruelty is to seek divorce from an ailing wife
The court further came down heavily on the husband saying that, instead of being sympathetic to an ailing wife, instead he made her illness a ground for divorce. The court remarked“In a typical Indian social condition if husband is suffering from illness, it is hardly ever likely that a wife will abandon the husband. If the husband is ill, she will spin herself around him and give her life and blood for the husband to restore good health. What could happen to a normal human being and more particularly, to the woman does not unfortunately happen to a man. Ours is a male dominated society and it leads to several ills. The present petition itself is an example of how cruel a man can be to a woman in a matrimonial relationship.”
Justice Kannan further remarked “Was the husband cruel to the wife by resorting to divorce in her difficult times of illness or the wife guilty of cruelty in contracting an illness unwittingly? The trial Court will decide it. Hopefully, it will not be tough answer.”
Though in different set of facts, the Supreme Court recently had refused to grant a ‘mutual divorce’ between a husband and his ailing wife, on the ground that in the divorce- settlement agreement, the husband is promising to do something which he is already duty bound, is not a valid consideration for the settlement. The Apex Court had said that it is a duty of the husband to take care of the health and safety of the wife and to provide facilities for the treatment of his wife. Though in a very different context, the High Court in this case, has followed the stand taken by the Apex court while considering the Divorce application filed by Husbands against their ailing wife.
Read the Judgment here.