IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
15. .04.2013 CORAM: THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN CMSA.No.40 of 2008 and M.P.No.1 of 2010 P.Ravikumar : Petitioner/Respondent Vs. Malarvizhi @ S.Kokila : Respondent/Petitioner PRAYER: This Civil Miscellaneous Appeal filed under section 28 of Hindu Marriage Act r/w section 100 C.P.C, against the judgment and decree passed in C.M.A.No.16 of 2007 on the file of the Additional District Judge, Fast Track Court No.2, Salem, dated 31.01.2008, reversing the order and decree in HMOP No.37 of 2006, dated 03.04.2007 on the file of the learned Subordinate Judge Court, Sankari. For Petitioner : Mr.M.S.Palanisamy For Respondent : Mr.N.Manokaran
The husband is the appellant. The appellant filed HMOP No.37 of 2006 on the file of the learned Subordinate Judge, Sankari, for divorce on the ground that the respondent/wife is afflicted with HIV positive, which is in a communicable form and therefore, the marriage between the him and the respondent has to be dissolved. 2.The respondent/wife denied that she was afflicted with HIV and further stated that her husband/appellant is a driver and he is going to various places and if at all, she is afflicted with HIV positive, she must have got it only through her husband and the blood sample taken from her cannot reveal that she is afflicted with HIV positive and by practicing fraud, the appellant/husband must have created records in collusion with the Doctor, who is related to her husband and she also came forward to give her blood sample through court to find out whether she is afflicted with HIV positive or not. 3.The learned Sub court decreed the petition and held that the certificates produced by the husband, namely Ex.P2 to P4 would prove that the appellant is not having HIV positive and the wife is having HIV positive. Therefore, the wife would not have got that disease from her husband and therefore, the husband has made out a case for divorce. 4.The respondent/wife filed an appeal in CMA No.16 of 2010 on the file of the Additional District Court [Fast Track Court No.2], Salem and the learned Assistant District Judge allowed the appeal and set aside the decree of divorce holding that without examining the Doctor, the certificates Exs.P2 to P4 cannot be relied on and the appellant failed to prove that the respondent/wife is afflicted with HIV. Aggrieved by the same, this appeal is filed. 5.The following substantial questions of law arise for consideration in this second appeal:- 1.Whether the rejection of the petition based on the ground that AIDS is not one of the diseases, as mentioned in section 13(v) of the Hindu Marriage Act is not correct? 2.Whether the appellant has proved that the respondent is afflicted with HIV positive in the absence of examining the Doctor?. 6.It is submitted by the learned counsel for the appellant that when the Hindu Marriage Act was passed in the year 1995, nobody thought of the disease HIV positive, which was found latter and therefore, the same was not mentioned along with the venereal disease, as stated in section 13(v) of the Hindu Marriage Act and further submitted that HIV positive is also connected with sexually transmitted disease and therefore, even though the disease was not specifically mentioned in the section, when it is proved that a person is afflicted with HIV positive, the other spouse is entitled to file a petition for divorce under section 13(v) of the Hindu Marriage Act. 7.The learned counsel further submitted that HIV positive in a communicable form is a ground for divorce and when the respondent/wife is having HIV positive, the lower appellate court ought to have confirmed the decree passed by the trial court. He further submitted that though, the appellant did not examine the Doctor to prove the certificates Exs.P2 to P4, in the counter the respondent admitted that she must have acquired the disease only from her husband and to rule out any possibility, the husband examined himself and the certificates also disclosed that he was not suffering from HIV positive and therefore, the husband would not have contributed the HIV positive disease to the wife and therefore, the wife must have acquired that disease from others and HIV positive is a sexually transmitted disease and therefore, the appellant/husband is entitled to the decree of divorce. 8.The learned counsel further submitted that though, the wife had stated in her counter that she was prepared to give her blood sample through the court to prove that she was not afflicted with HIV positive, she has not come forward to give her blood sample and therefore, the conduct of the respondent would also lead to the inference that she is having HIV positive and therefore, the non examination of the Doctor cannot be a ground to reject Exs.P2 to P4. 9.On the other hand, Mr.N.Manokaran, the learned counsel for the respondent submitted that a certificate by an expert cannot be received in evidence without examining the expert and no attempt was made by the appellant to examine the Doctors or the persons, who took the blood sample and analyzed the blood to prove that the blood taken from the respondent/wife contains HIV positive and therefore, the lower appellate court rightly held that without examining the Doctor, the certificates cannot be believed and the appellant has not proved that the wife is suffering from HIV positive. 10.The learned counsel further submitted that even though, the respondent/wife had stated in the counter, expressing her willingness to give her blood sample through court, no one can be compelled to give blood sample and that is against the personal liberty enshrined under Article 21 of the Constitution of India and therefore, merely because the wife refused to give the blood sample, it cannot be presumed that she is afflicted with HIV positive. He, therefore, submitted that when the husband has come forward with the specific case that the wife is having HIV positive, he has to prove the same and without proving the same, he is not entitled to the relief prayed for. 11.The learned counsel further submitted that under the Hindu Marriage Act, when a person is having venereal disease in a communicable form, the other spouse can apply for divorce and the above Act does not say that in a case of HIV positive, the other spouse can apply to the court for divorce and therefore, the petition is also not maintainable. 12.As stated supra, the husband filed an application for divorce on the ground that the wife is afflicted with HIV positive and the blood samples of both the parties were taken and his blood sample was not reactive to HIV positive and the wife's blood sample was reactive to HIV positive and therefore, she would not have acquired that disease from him. In the counter, the respondent admitted that her blood sample was taken and alleged that the Doctor was a relative of her husband and in collusion with the Doctor, the medical report has been fabricated and even assuming that the respondent/wife is having HIV positive, she must have acquired the same from her husband only as she never had any sexual relationship with anybody, except her husband and the husband is a driver going to various places and therefore, he might have acquired the disease and the appellant/husband has to prove that he was not having HIV positive and also agreed to send her blood sample for analysis through court and stated in para 9 of the counter that she is prepared to file a petition for analyzing her blood sample through court and that would give a quietus to the allegations made against her. Nevertheless, she has not come forward to give her blood sample. Therefore, the trial court granted divorce on the based of the certificates Ex.P2 to P4. 13.No doubt, normally the certificate of a Doctor or an expert cannot be admitted in evidence without examining the Doctor or expert. But in this case, it has been prima facie established by the appellant/husband that the wife is having HIV and he does not have that disease. Though, the wife also came forward to give her blood sample to prove her innocence, nevertheless she did not come forward during trial or during the first appeal. Therefore, an order was passed by me, in this appeal on 17.02.2011 on the petition filed by the appellant/husband in M.P.No.1 of 2010 in CMSA No.40 of 2008 directing both the parties to appear before the Dean, Madras Medical College Hospital, Chennai, to give the blood sample to find out whether they are having AIDS or not. Unfortunately, the respondent/wife did not appear before the Dean, Madras Medical College Hospital, Chennai. The appellant/husband has appeared before the Medical Officer and gave his blood sample and a report was sent by Dr.V.V.Palani, Medical Superintendent In-charge, Rajiv Gandhi Government General Hospital, Chennai-3 stating that the appellant is not reactive to HIV positive and also submitted a report to that effect. Thereafter, another learned Judge of this court passed an order, dated 31.01.2012 directing the wife/respondent to give her blood sample and the Director & Professor, Institute of Venereology, Madras Medical College, Chennai-600 003, by letter, dated 20.04.2012 informed that the respondent did not appear to give blood sample. Therefore, despite opportunities given to the respondent to prove her innocence, the respondent did not avail the opportunities. 14.Illustration 'g' to section 114 of the Indian Evidence Act says that the evidence, which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Section 106 of the Evidence Act says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Whether the respondent is afflicted with HIV positive or not, is within the peculiar knowledge of the respondent and whether she is afflicted with the disease or not can be found out only by examining her blood and without examining the blood, it is not possible to find out whether the respondent is afflicted with HIV positive or not. 15.Though, in the counter, the respondent stated that she was prepared to give her blood sample to prove her innocence, she has not come forward and despite opportunities given to her by this court, she did not use those opportunities. Therefore, it is not possible for the husband/appellant to prove his case, except by producing the certificates regarding the blood sample. The respondent did not deny the giving of her sample and the only objection was without examining the Doctor, the certificate should not have been acted upon and the appellant might have played fraud in collusion with the Doctor and obtained a certificate that the wife was suffering from HIV positive. Even accepting the case of the respondent that without examining the Doctor, the certificate cannot be acted upon, when the respondent did not come forward to give her blood sample and only by analyzing the blood sample, it can be found, whether a person is afflicted with HIV positive or not, the presumption under section 114 can be drawn against the respondent and I hold that the husband/appellant has proved that the wife is afflicted with HIV positive. Therefore, substantial question of law No.2 is answered in favour of the appellant. 16.Venereal disease as stated in section 13(v) of the Hindu Marriage Act, 1955 means a communicable infection transmitted by sexual intercourse. HIV positive is also a disease transmitted through sex. In the year 1955, HIV was not heard of and therefore, that was not named in the Act, as one of the grounds. But having regard to the fact that venereal disease in a communicable form has been mentioned as one of the grounds for divorce, any disease related to venereal disease in a communicable form, will also come under the provision of section 13(v) of the Hindu Marriage Act and therefore, it cannot be contended that a petition cannot be filed on the ground that HIV positive is not included in section 13(v) and therefore, divorce cannot be granted. 17.Further, the following information about HIV+ was down loaded from Google, which would prove that HIV+ is also related to venereal disease and it is always in a communicable form. "Acquired immune deficiency syndrome (AIDS) is an infectious disease caused by the human immunodeficiency virus (HIV). There are two variants of the HIV virus, HIV-1 and HIV-2, both of which ultimately cause AIDS. AIDS was first recognized in the United States 1981 in homosexual men. Today is seen in both homosexual and heterosexual men and women. AIDS is the advanced form of infection with HIV virus. AIDS can be transmitted in several ways. The risk factors for HIV transmission vary according to the method of transmission. Sexual contact. People at greatest risk are those who do not practice safer sex by always using a condom, those who have multiple sexual partners, those who participate in anal intercourse, and those who have sex with a partner who has HIV infection and/or other sexually transmitted diseases (STDs). In the United States and Europe, most cases of sexually transmitted HIV infection result from homosexual contact, whereas in Africa, the disease is spread primarily through sexual intercourse among heterosexuals. Most people with AIDS in the United States are between 25 and 44 years of age. Transmission in pregnancy. High-risk mothers include women sexually active with bisexual men, intravenous drug users, and women living in neighborhoods with a high rate of HIV infection among heterosexuals. The chances of transmitting the disease to the child are higher in women in advanced stages of the disease. Breast feeding increases the risk of HIV transmission as HIV passes into breast milk. The rate of pediatric HIV transmission in the United States had decreased substantially because of HIV testing and improved drug treatment for infected mothers, so fewer than 1% of AIDS cases now occur in children under age 15. In the developing world, mother to infant transmission remains epidemic. In 2006, AIDS was the single most common cause of death in children under age 5 in South Africa, while worldwide children account for about 10% of all AIDS cases. Exposure to contaminated blood. Risk of HIV transmission among intravenous drug users increases with the frequency and duration of intravenous use, frequency of needle sharing, number of people sharing a needle, and the rate of HIV infection in the local population. In 2006, about 19% of men with AIDS and 25% of women with AIDS contracted the disease through sharing needles during intravenous drug injection. With the introduction of new blood product screening in the mid-1980s, HIV transmission through blood transfusions became rare in the developed world. However, contaminated blood is still a significant source of infection in the developing world. Needle sticks or body fluid splashes among health care professionals. Transmission through theses sources accounts for fewer than 0.3% of all HIV infections in the United States. This rate reflects the emphasis on universal safety precautions (e.g., use of gloves, face shields, proper disposal of needles) among health care professionals and first responders. HIV is not transmitted by handshakes or other casual non-sexual contact, coughing or sneezing, or by bloodsucking insects such as mosquitoes. Therefore, when a spouse is having that disease, the other spouse is entitled to get the declaration of divorce. Hence, substantial question of law No.1 is answered in favour of the appellant. 18.In the result, the appeal is allowed and the judgment and decree of the first appellate court is set aside and the judgment and decree of the trial court granting divorce is restored. Consequently, connected Miscellaneous Petition is closed. No costs. 15 .04.2013 Index:Yes/No Internet:Yes/No er R.S.RAMANATHAN,J er To, 1.The Additional District Judge, Fast Track Court No.2, Salem. 2.The Subordinate Judge, Sankari. Pre-delivery judgment made in CMSA No.40 o”
15. 04.2013