Title: Sexually Transmitted diseases: A Ground for Divorce under Hindu Marriage Act,

1955

Introduction
In a secular country like India, a lot of emphasis is given to the various religions practiced within
the country including Hindu, Muslims, Parsi, etc and all these religions are governed by their
own personal laws. Although as per our constitution, same law is applied to every citizen, every
religion has and wants its own personal laws as each religion has its own values, traditions,
rituals and customs.
The institution of marriage is universal and is mandatory under every religion. It may considered
to be a contract, a sacrament or both contract and sacrament in various religions and having a
sexual relationship is required for the procreation of children. But sometimes it so happens that
due to several reasons the relation between a husband and a wife gets strained and they, either
voluntarily or by force want to part ways. Divorce as a concept is not new amongst the Hindus.
Before the Hindu marriage act the customary laws, in various incidents, accepted divorce.
Baroda was the first Indian state to introduce divorce for all Hindus by legislation1 in 1971.
In this research project the researcher, will cover the areas of the sexually transmitting diseases
(like leprosy and HIV) in the Hindu marriage which are the reasons or the grounds for divorce.
Sexually transmitted diseases (STD) also now referred to as sexually transmitted infections (STI)
and Venereal Diseases (VD), are illnesses that can be transmitted between humans by means of
sexual behavior including vaginal intercourse, oral sex, and anal sex. STDs are now referred to
as sexually transmitted infections. These diseases are a ground for divorce or judicial separation
but they must be in a communicable form. The congenital syphilis is excluded from its ambit. As
per the law, whether the disease is curable or was contracted is immaterial.
In this research, we have dealt with Leprosy- In case of a virulent and incurable form of leprosy,
a petition can be filed by the other spouse based on this ground, Venereal Disease- If either
1 The Baroda Hindu Divorce Act, 1931, referred to in Report of Hindu Law Committee (1947),
page 27, paras 109,110.

spouse is suffering from a venereal disease that is communicable, a divorce can be filed by the
opposite party. Sexually transmitted diseases including Acquired Immune Disease Syndrome
(AIDS) are accounted to be Venereal Diseases. Originally it was essential to have the disease for
three years before divorce can be filed for but now, after the Marriage Laws (Amendment) Act,
1976, it can be filed for immediately.
In this project the researcher has dealt with the important issues beginning from the historical
background to the meaning and ambit of the STDs and how it has been incorporated in our legal
system and interpreted in various cases in the Indian courts.

Statement of Problem:
The topic of my research is sexually transmitted disease: ground for divorce under Hindu
marriage act, 1955. The researcher wants to study the issue in depth and its relevance in the
present scenario but it is not very easy to find information regarding such issues as they are
critical in nature.

Review of Literature:
Books referred:
1. Law Commission of India, Fifty Ninth Reports on Hindu Marriage Act, 1955 And Special
Marriage Act, 1954, March 1974.
The researcher has studied the chapter on Divorce under the Hindu Marriage Act in this book.
The specific area referred to was the significance of Hindu Marriage Act whose section 13 was
taken into consideration which talks about divorce on the ground of living in adultery,
conversion, incurable insanity, virulent and incurable leprosy, venereal disease, renunciation of
the world by entry into a religious order and lastly wife can petition for divorce on certain special
grounds.
2. Family Law, Paras Diwan, Allahabad Law Agency, Eighth Edition, 2008
From this book, the general introduction of leprosy and venereal disease has been taken, the
provisions covered by the Hindu Marriage Act, 1955 and some of the important landmark cases
under the act have also been considered.

Articles Referred
1. Grounds for divorce in India, Advocate Khoj available at

http://www.advocatekhoj.com/library/lawareas/divorceinindia/7.php?Title=Grounds%20for
%20Divorce%20in%20India
This article lays down the grounds for divorce in India which includes leprosy and venereal
diseases.

Leprosy In case of a virulent and incurable form of leprosy, a petition can be filed by
the other spouse based on this ground.

Venereal Disease If one of the spouses is suffering from a serious disease that is easily
communicable, a divorce can be filed by the other spouse. The Sexually transmitted
diseases like AIDS are accounted to be venereal diseases.

2. Leprosy discrimination, Even in the eyes of law, 02 September 2011 at 09:22 available at
http://tamilnadu.indiaeveryday.in/news-leprosy-discrimination-even-in-the-eyes-of-law-11362990496.htm
This Article talks about the stigma and discrimination faced by the patients who are suffering
from leprosy even though medicine has now found a cure for it.
Section 13 (1) of the HMA, 1955 clearly states that leprosy is a ground for divorce. But now
things have changed and the article clearly says that today leprosy is a curable disease and prior
most of the laws were made when cure was not there. The time has come to made necessary
amendments that do not discriminate against leprosy-affected people.

3. X

v.

hospital

on

AIDS,

Legal

Services

India

available

at

http://www.legalservicesindia.com/articles/a1ds.htm
The landmark judgement of this case was on sexually transmitted diseases. The decision of the
Supreme Court sent shock waves among the HIV community throughout the world. The decision
was most unfortunate and arrived at in haste without fully comprehending the issues and being
sensitive to them. The Court overlooked the larger picture while deciding the current matter and

failed to recognise that its decision would impact not just the Appellant but the entire AIDS
struck community at large.
In this case the court had held that the Appellants right to marry was suspended until complete
cure of the Appellants dreadful disease. The Court based this decision on various Statutes which
give right to spouse to seek divorce on ground of the other suffering from a communicable
venereal disease such as AIDS. The Court had held that in the event the Appellant did decide to
marry while suffering from such dreadful disease, he shall be punishable under section 269 &
270 of the Indian Penal Code. The court had taken away the persons fundamental right to marry.
Moreover, the court had also failed to recognize that by allowing a doctor to break his duty to
maintain secrecy, they were setting a precedent which would only drive the disease underground,
which would defeat the very objective of prevention of transmission of such diseases.

4. Court equates HIV + with veneral diseases, grants man divorce, L Saravanan, TNN, The Times
of India available at http://timesofindia.indiatimes.com/city/chennai/Court-equates-HIV-withvenereal-disease-grants-man-divorce/articleshow/19734016.cms
In this case the Madurai bench of the Madras high court has granted divorce to a man on the
ground that his wife was HIV-positive, equating the condition to a venereal disease.
It was held that when a spouse is HIV- positive, the other spouse is entitled for divorce under the
Hindu Marriage Act.

Objectives:
1
2
3

To analyse the sexually transmitted diseases as a ground for divorce under Hindu Law.
To understand the relevance of the topic under the Hindu marriage act, 1955.
To analyse certain case laws related to the research topic.

Research Questions:
1. Whether sexually transmitted diseases are a ground of divorce under the Hindu Marriage
Act, 1955 and why this clause on Sexually Transmitted Disease (STD) was inserted under
the Hindu Marriage Act, 1955 as a ground of divorce?
2. How is a case of sexually transmitted diseases interpreted in the Indian courts

Scope:
The scope of this research is limited to the sexually transmitted diseases as a ground of divorce
under the Hindu Marriage Act, 1955.

Methodology:
The Researches has followed doctrinal method of research. Various books, articles and cases
pertaining to the research topic have been studied.

Sexually Transmitted Diseases

Sexually transmitted diseases (STD) also now referred to as sexually transmitted infections (STI)
and Venereal Diseases (VD), are illnesses that can be transmitted between humans by means of
sexual behavior including vaginal intercourse, oral sex, and anal sex. STDs are now referred to
as sexually transmitted infections (since these conditions involve the transmission of an
infectious organism between sex partners) as it has a broader meaning; a person may be infected,
and may potentially infect others, without having a disease or can be spread through by contact
with blood during sexual activity, any type of sexual activity and also most often caused by
viruses and bacteria.
The first well-recorded European outbreak of what is now known as syphilis occurred in 1494
when it broke out among French troops after then the disease swept across Europe, killing more
than five million people. Prior to the inventions of modern medicines, sexually transmitted
diseases were generally incurable and treatment was limited to treating the symptoms of the
disease. In the 1980s, AIDs emerged into the public consciousness as sexually transmitted
diseases that could not be cured by modern medicine. AIDs in particular has a long
asymptomatic period-during which time HIV can replicate and the disease can be transmitted to
others which is followed by a symptomatic period, which leads rapidly to death unless treated.
Today, more than 20 different STDs have been identified.

Venereal Disease
A venereal disease is a disease (such as gonorrhea or syphilis) that is passed from one person to
another through sexual intercourse.2
If one of the spouses is suffering from a serious disease that is easily communicable, a divorce
can be filed by the other spouse. The Sexually transmitted diseases like AIDS are accounted to be
venereal diseases. i
It is a ground for divorce or judicial separation under matrimonial laws of most Indian
communities including the Hindu Marriage Act, 1955. It comprises a number of contagious
diseases that are most commonly acquired at the time of sexual intercourse.ii
The ground under the HMA runs as: the respondent has been suffering from venereal disease in
a communicable form.iii Congenital syphilis is not included within the expression virulent
venereal disease or venereal disease in a communicable form. but syphilis and gonorrhoea are
the most common form of venereal disease.
In the case of Mr. X v. Z hospital,iv Divorce was granted to wife when husband was discovered to
be HIV positive. It was held in this case by the court that since venereal disease is a ground for
divorce, it indicates that if a person, prior from marriage, is suffering from venereal disease he
must be restrained from entering into marriage. It is immaterial whether it is curable or it was
contracted innocently. The Hindu Marriage Act does not say that the disease should not have
been contracted from the petitioner. If the case is so, under section 23(1) (a), the decree of
divorce cannot be passed as it would be amount taking advantage of ones own wrong.
In a landmark judgment in April 2013, the Supreme court has equated HIV + with venereal
diseases. The court granted divorce to a man on the basis that his wife was HIV + and it was held
in this case that HIV infection being a communicable health hazard, a person testing positive for
the virus should be considered an acceptable ground for divorce.
Justice Ramanathan had held in this case that In the year 1955, HIV was not heard of and,
therefore, it was not named in the Hindu Marriage Act as one of the grounds for dissolution of
marriage. But having regard for the fact that venereal disease in a communicable form has been
2 http://www.merriam-webster.com/dictionary/venereal%20disease

mentioned as one of the grounds for divorce, any such disease will also come under the provision
of the Section 13(v). Therefore, it cannot be contended that HIV-positive condition is not
included under the section and therefore divorce cannot be granted."

Leprosy
Leprosy, also known as Hansens disease, is a chronic infection caused by the bacbacteria
Mycobacterium leprae and Mycobacterium leprimatosis. Initially infections are without
symptoms and typically remain this ay for 5 to 20 years.v
Leprosy is an infectious disease. It is chronic, contagious and results in disfigurement, one of the
causes of permanent disability in the world. The stigma against the disease due to its disfiguring
effects that leads to isolation of its victims and the society shuns them. Leprosy can now be
treated with multi drug therapy and early stages of disability and infections can be evaded.
It is important to note that 55% of leprosy cases in the world are in India.vi
Leprosy is a ground for divorce and judicial separation under most of the matrimonial laws of the
Indian communities. Under the Hindu marriage act, the ground runs: respondent has been
suffering from virulent and incurable form of leprosy.vii
According to the Hindu Marriage Act, 1955 if either the husband or the wife is suffering from
leprosy that is both virulent and also incurable, the other spouse can file a petition for divorce on
this basis. For leprosy to be a ground for divorce under HMA it must be both virulent and
incurable. Therefore, leprosy in its early stages is curable and certain amount of time must elapse
before it becomes incurable. Malignant and Venomous leprosy are the two virulent forms of
leprosy.

Amendments in grounds for divorce in 1976

Prior to the 1976 amendment, Leprosy in virulent and incurable form was a ground for judicial
separation if had been persisting for at least three years prior to the date of petition.
And in the case of venereal diseases, it was essential that the disease is communicable for it to be
a ground for divorce under HMA. It was on the petitioner had to show that the disease had been
affecting the respondent for at least three years preceding the filing of the petition. Also, if the
petitioner had caused the infection to the respondent, the relief, which he could claim was only
divorce while the other party could have sought either divorce or the lesser relief of judicial
separation.
After the amendment, the time limit of Virulent and incurable leprosy has been removed.
Incurable and virulent form of leprosy is a ground for divorce (or judicial separation) and the
petitioner need not prove any time period for relief.
Also, for Venereal diseases, whether or not the petitioner had communicated the disease to the
respondent is now immaterial.

Case Laws on Sexually Transmitted Diseases

MR X (Appellant) Versus Hospital Z (Respondent) (1998)8 Supreme Court Cases 296
In this case - The Appellants blood was to be transfused to another and therefore a sample thereof
was taken at the Respondents Hospital and the appellant was found to be HIV+ which was
disclosed by the hospital authorities without the appellants consent and as a result of which, his
marriage was called of. . The Appellant had appeared before the Supreme Court contending that
the principle of Duty of care applicable to people in medical profession included the Duty to
maintain confidentiality and the said duty had a correlative right vested in the patient that
whatever came to the knowledge of the doctor would not be divulged.
The Court had held in this case that in the event of a conflict between the Appellants
fundamental right to privacy and his to be wife;s fundamental right to be informed about any
threat to her life/health, her right to be informed will override the Appellants right to privacy.
Further, the Court held that the duty to maintain secrecy in every Doctor-Patient relationship was
also not absolute and such duty could be broken when needed. The Court further held that the
Appellants right to marry was suspended until he was completely cured of the disease. This
decision was based on various statutes, The court held that if the appellant decided to get
married, he would be punishable under the Indian Penal Code.
P. Ravikumar (Petitioner) vs. Malarvizhi @ S. Kokila (Respondent) on 17 February 2011
In this case the appellant (husband) is the petitioner and he had filed for divorce under section
13(1) (5) of the Hindu Marriage Act, 1955. His argument was that he had married the respondent
with whom he had a child and during tests he found out that his was, the respondent, was
suffering from AIDS and he had not contracted the disease and apprehended that he might if he
continued his sexual relationship with her and so he filed a petition for divorce. The Trial Court
had granted divorce and first appellate court had allowed the appeal.
The current petition was filed by the petitioner so as to pass a direction directing both parties to
undergo medical examination to find out whether they were suffering from AIDS but the wife
contrasted it stating that it was irrelevant to decide the appeal. The respondent felt that the blood

test taken earlier was not true and thus wanted both parties to take a blood test in a government
institution. In this case it was proved during medical examination that the respondent was HIV +
while the petitioned was not. The petition was allowed and the parties were directed to appear
before the Dean, Madras Medical College Hospital, and Chennai to find out whether they are
suffering from AIDS

Conclusion
It can be concluded from this research that sexually transmitted diseases are those illnesses
which can be transmitted between humans by sexual activity. But medical sciences have now
advanced and these diseases can be prevented to a certain extent.
Diseases such as leprosy and venereal diseases are a ground for divorce under the Hindu
marriage act so as to save the opposite party from harm. The other person may contract the
disease which may even prove to be death causing for the spouse. Certain amendments have also
been made in 1976 so as to ensure the protection of people and thus reducing the time limit for
granting a divorce if the spouse is suffering from venereal diseases.
Even in case laws, the judiciary has granted divorce if the spouse has been suffering from any of
these diseases including AIDS. The judiciary has recently even prevented a man from getting
married once he has been diagnosed with AIDS. But it is important to amend the law as far as
leprosy is concerned with regard to advancements in medical science. Spouse should not be
granted divorce if the disease is in its early stages and is curable.
References

Books:
1. Dr. Paras Diwan, Modern Hindu law, Twentieth Edition, Allahabad Law Agency
2. Justice P. S. Narayan, Hindu Law, 1st edition, Asia Law House, Hyderabad

Articles:
1. Divorce Laws/ Husband files for divorce as wife suffering from Venereal disease.
http://www.legalserviceindia.com/lawforum/index.php?topic=1628.0
2. Grounds for divorce in India, Advocate Khoj available at
3. http://www.advocatekhoj.com/library/lawareas/divorceinindia/7.php?Title=Grounds
%20for%20Divorce%20in%20India

4. Leprosy discrimination, Even in the eyes of law, 02 September 2011 at 09:22 available at
http://tamilnadu.indiaeveryday.in/news-leprosy-discrimination-even-in-the-eyes-of-law1136-2990496.htm
5. X v. Z hospital on AIDS, Legal Services India available at
http://www.legalservicesindia.com/articles/a1ds.htm
6. Court equates HIV + with veneral diseases, grants man divorce, L Saravanan, TNN, The
Times of India available at http://timesofindia.indiatimes.com/city/chennai/Courtequates-HIV-with-venereal-disease-grants-man-divorce/articleshow/19734016.cms

ihttp://www.advocatekhoj.com/library/lawareas/divorceinindia/7.php?Title=Grounds%20for%20Divorce%20in%20india
ii http://www.goforthelaw.com/articles/fromlawstu/article42.htm - _ftn12
iii Section 13(1)(v) of the Hindu Marriage Act
iv AIR 1999 SC 495
v "Leprosy Fact sheet N101". World Health Organization. Jan 2014.
vi http://www.tlmindia.org/index.php/about-leprosy/facts
vii Section 13 (i)(iv) HMA