Spouse suffering from Hepatitis B, a sexually communicable disease is not a ground for divorce

(A) When couples tie the nuptial knot, they swear to be at each other’s side in sickness and in health. So should a spouse be allowed to wriggle out of this commitment when other spouse is afflicted with a serious disease?

Answering in the negative, the Courts have ruled that:

(i) Hepatitis B was not a medically certified “Venereal Disease”, therefore, it could not be interpreted as being covered under the Hindu Marriage Act.

(ii) just because a spouse (wife and for that matter even husband) is carrying Hepatitis B (perceived to be a sexually transmittable disease) and, hence, the spouse is apprehensive about maintaining sexual relations she/ he does not have a legally valid case for divorce.

The crux of the cases was whether the spouse (husband and for that matter even wife) could seek divorce on the grounds of cruelty since it would have been risky for him/her to have sex with his wife/husband.

(1)If either spouse is suffering from a “venereal disease in any communicable form”, Section 13(v) of the Hindu Marriage Act allows the other to get a divorce.

(2) Because spouse’s (wife and for that matter even husband) medical condition made sex dangerous, the spouse should not be forced to stay on in a sexless marriage, which the courts had previously held as cruel.

Though it has been held that refusal of sexual access amounts to cruelty and is a ground for divorce, having a communicable disease does not afford a spouse (Husband or Wife) a ground for divorce under the scheme of the Hindu Marriage Act.

The essence of the message is:  Having a communicable disease does not afford a spouse: Husband or Wife: a ground for divorce under the scheme of the Hindu Marriage Act, although the judgments by court of law may have wife ( or even husband) as Respondent. 

Cruelty is to seek divorce from an ailing spouse (wife or for that matter husband).

Moreover, any of the spouse: Husband or Wife: may contract a communicable disease unwittingly i.e. without being aware: unintentionally.

Also, it is the duty of the spouse (Wife or husband) to take care of the health and safety of the other spouse and to provide facilities for the treatment of her/his spouse.

(B) Every communicable disease does not afford a spouse a ground for divorce under the scheme of the Hindu Marriage Act.

Hepatitis B is an infectious illness which is transmissible by exposure to infectious blood or body fluids such as semen and vaginal fluids. Consequently, the sexual access to woman/man suffering from Hepatitis B will be communicated to the husband/wife himself and she/he will be denied of the sexual access to the wife/husband.

A person suffering from Hepatitis B which could be communicated by sexual access is not a ground which is available under Section 13.

(C) Central Government Act

Section 13 in The Hindu Marriage Act, 1955

13 Divorce. —

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

(iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or

(v) has 18 [***] been suffering from venereal disease in a communicable form

(D) 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.

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO. 702 OF 2015
Vennangot Anuradha Samir versus Vennangot Mohandas Samir
……………………J.
(M.Y. Eqbal)

…………………….J.
(C. Nagappan

New Delhi
December 02, 2015

(E)  It is no doubt true that clause (v) of sub-clause (1) of Section 13 of the Act provides the ground for divorce i.e. if either of the spouse has been suffering from venereal disease in a Communicable form.

Venereal disease is defined as "transmitted by sexual intercourse" in the second edition of Butterworths Medical Dictionary.

While Hepatitis B Antigen is defined thus:

"Hepatitis B antigen Also known as Australia antigen, Australia/Serum Hepatitis (Au/SH) antigen and Hepatitis-associated antigen (H.A.A.) but these terms are now obsolete. It is found in association with hepatitis type B only, and consists of 20 nm spherical or bacillary bodies found in the serum of those who have, or have had, type B hepatitis…………… It was originally discovered in the serum of an Australian aborigine as part of a search for minor serum proteins but is distributed world-wide. Antibody to the antigen (anti-HBs) develops slowly in convalescence and probably correlates with the immunity to reinfection."

Also: Hepatitis B was not a medically certified “Venereal Disease”, therefore, it could not be interpreted as being covered under the Hindu Marriage Act.

Perhaps it is for 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 spouse (husband or wife) to make out a case for examination of the other spouse (husband or wife)  to assess whether he/she is suffering from Hepatitis B or not.

(F) Family Court was not justified in concluding that Hepatitis-B (HBs Ag+) is venereal disease. In fact there is no medical record to establish that the appellant suffered from venereal disease.

3. Parties are related as wife and husband respectively. Respondent-husband instituted MC No.34/2011 before the District Judge, Family Court, Gulbarga for a decree of divorce by declaring the marriage solemnized on 13.12.2009 with the appellant as dissolved.

The allegation of the ……… was that the appellant was suffering from HBs Ag+ i.e. Hepatitis-B in a communicable form.

That petition was opposed by filing statement of objections…..

5. The Family Court having regard to the material on record framed points for consideration, the first of which reads thus:

"Whether the petitioner proves that the respondent has been suffering from venereal disease i.e. HBs Ag+ in a communicable form?"

The Family Court without recording reasons or findings over the nature of disease known as Hepatitis- B and venereal disease, nevertheless concluded that the appellant suffered from Hepatitis-B, which was 'venereal disease', and accordingly answered the point for consideration to allow the petition and declare the marriage between the parties dissolved by the order dated 22nd September, 2012 in MC No.34/2011.

Hence this appeal by the wife.

6. Having heard the learned counsel for the parties, and examined the order impugned, it is no doubt true that clause (v) of sub-clause (1) of Section 13 of the Act provides the ground for divorce i.e. if either of the spouse has been suffering from venereal disease in a communicable form. Venereal disease is defined as "transmitted by sexual intercourse" in the second edition of Butterworths Medical Dictionary

9. Although learned counsel for the respondent- husband submits that a report was downloaded from the internet disclosing that Hepatitis-B is venereal disease, we are not inclined to accept that submission in the absence of relevant material constituting substantial legal evidence of the said fact.

We are afraid that the respondent-husband having not subjected himself to a medical test, to ascertain if he is the carrier of the HBs Ag+ disease communicable through sexual intercourse, would not be entitled to a divorce in the light of Section 13 (1) (a) of the Act.

10. In the result, this appeal is allowed. The order impugned is quashed and the proceeding remitted for consideration, afresh, after extending reasonable opportunity of hearing to the parties concerned, including adducing additional evidence, if any, and thereafter to pass orders strictly in accordance with law.

Smt. Triveni W/O Anil Kumar ... vs Anil Kumar S/O Ramesh Vajantri
MFA No.30182/2013
MISCELLANEOUS FIRST APPEAL No.30182/2013 (FC)
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
Author: Ram Mohan K.N.Keshavanarayana

(G) Wife (spouse) suffering from Sexually Transmitted Disease is not ‘cruelty’ to seek divorce.The apprehension of the husband (spouse) is that if he has access to the wife, he will get infected with Hepatitis B, is no ground for divorce.

The High Court in this case, has followed the stand taken by the Apex court while considering the Divorce application led by Husbands against their ailing wife……. 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.

C.M. No.23380-CII of 2015

For the reasons stated in the application, order passed by this Court on 30.10.2015 is recalled and the revision petition is restored to its original number. Application is allowed.

2. I requested the counsel to argue on merits and he refers to me to the fact that the Hepatitis B is an infectious illness which is transmissible by exposure to infectious blood or body fluids such as semen and vaginal fluids. Consequently, the sexual access to woman (spouse) suffering from Hepatitis B will be communicated to the husband (spouse) himself and he will be denied of the sexual access to the wife (spouse). This, according to the husband, will constitute cruelty.

3. I must observe that the cruelty which is contemplated under Section 13 as ground for divorce is that after the solemnization of the marriage, the respondent has treated the petitioner with cruelty. (emphasis supplied). Cruelty must be a voluntary act of person who visits cruelty on the other. If a woman refuses sexual access, there are authorities to the effect that such a voluntary refusal would itself constitute a cruelty and afford a ground for divorce. This is not a case where the woman is complained of as having denied sexual access to the husband. On the other hand, the apprehension of the petitioner is that if he has access to the wife, he will get infected with Hepatitis B. I am afraid this argument is not sound, for every communicable disease does not afford a spouse a ground for divorce under the scheme of the Hindu Marriage Act. Section 13 provides for certain forms of illnesses in a spouse as affording a ground for divorce which include under Clause (iv) where the person has been suffering from a virulent and incurable form of leprosy and clause (v) states that a person has been suffering from venereal disease in communicable form. Both could be illnesses which could be transmitted by sexual access. These are the only two instances of illnesses, apart from mental illness, which afford a ground for a spouse to seek for divorce. A person suffering from Hepatitis B which could be communicated by sexual access is not a ground which is available under Section 13.

4…………….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 a tough answer.

5. The civil revision is dismissed.

C.R No.237 of 2014 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.237 of 2014 (O&M)
Nirmal Singh
Versus
Smt. Reeta
CORAM:HON'BLE MR. JUSTICE K. KANNAN
C.M. No.23380-CII of 2015
C.R. No.237 of 2014
Date of Decision.04.11.2015

 

Kumar Doab 
on 05 April 2017
Published in Family Law
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