PUNJAB AND HARYANA HIGH COURT
Before:- K. Kannan, J.
C.R. No. 237 of 2014 (O&M). D/d. 4.11.2015.
Nirmal Singh – Appellant
Versus
Reeta – Respondent
For the Appellant :- G.S. Jaswal, Advocate.
For the Respondent :- None.
JUDGMENT
K. Kannan, J. (Oral) – 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.
C.R. No. 237 of 2014
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 examination 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 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 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.
