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 refual 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. 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
husband to make out a case for examination of the wife to assess whether
she is suffering from Hepatitis B or not.
4. A spouse suffering from an illness is surely traumatic and it
should under the normal circumstance give place to evoking compassion
and greater empathy for the other spouse. Unfortunately, here, the
husband does not feel sympathetic to an ailing wife and wants to make the
illness a ground for divorce. Law, as it stands, is compassionate at least in
that sense and rightly, there is no ground for affording a divorce for a
husband against a wife complaining of illness. 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. 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?
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.237 of 2014 (O&M)
Date of Decision.04.11.2015
Nirmal Singh .
V
Smt. Reeta
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. The petition is filed against the order declining an application
filed by the husband who sought the direction for medical examination that
the wife was suffering from Hepatitis B. The Court observed that there is
no scope for such examinmation and compulsion to be brought against the
wife. The husband is on revision. The Court had already ordered notice to
the respondent and the notice has been served but there is no appearance
for the respondent.
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 infectitious blood or body fluids such as semen and vaginal
fluids. Consequently, the sexual access to woman suffering from Hepatitis
B will be communicated to the husband himself and he will be denied of
the sexual access to the wife. This, according to the husband, will
constitute cruelty.
3. I must obseve 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 refual 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. 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
husband to make out a case for examination of the wife to assess whether
she is suffering from Hepatitis B or not.
4. A spouse suffering from an illness is surely traumatic and it
should under the normal circumstance give place to evoking compassion
and greater empathy for the other spouse. Unfortunately, here, the
husband does not feel sympathetic to an ailing wife and wants to make the
illness a ground for divorce. Law, as it stands, is compassionate at least in
that sense and rightly, there is no ground for affording a divorce for a
husband against a wife complaining of illness. 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. 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.
5. The civil revision is dismissed.
(K. KANNAN)
JUDGE
November 04, 2015
No comments:
Post a Comment