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IN THE HIGH COURT OF KARNATAKA
S.G. Pandit, Vijaykumar A. Patil, JJ.
Ganesh – Appellant
Versus
Sharada – Respondent
Miscellaneous First Appeal No. 100144 of 2014
Decided On : 29-05-2023
HINDU MARRIAGE - Dissolution of Marriage - Hindu Marriage Act, 1955 - Sec. 13 - The court discussed Section 13 of the Hindu Marriage Act, which allows for the dissolution of marriage on specific grounds, including the presence of a communicable venereal disease. The court interpreted the requirement for the appellant to prove that the respondent was suffering from a communicable venereal disease, specifically HIV, and found that the appellant failed to provide sufficient evidence to support this claim. The court emphasized the burden of proof on the appellant and concluded that the Family Court's dismissal of the petition was justified based on the lack of evidence.
Fact of the Case:
The appellant sought dissolution of marriage on the grounds that the respondent was HIV positive, which he claimed was a communicable venereal disease. The marriage took place on 2/5/2007, and a child was born to the couple. The respondent developed health issues after a blood transfusion, leading to her HIV diagnosis. The appellant argued that he could not continue the marital relationship due to this diagnosis.
Finding of the Court:
The court found that the appellant failed to prove that the respondent was suffering from a communicable venereal disease as defined under Section 13 of the Hindu Marriage Act. The court noted that the appellant's assertions were not supported by credible evidence, and the Family Court's conclusion that the appellant had not established grounds for divorce was upheld.
Issues: Whether the appellant proved that the respondent was suffering from HIV as a communicable venereal disease under Section 13 of the Hindu Marriage Act, and whether the Family Court erred in dismissing the petition for dissolution of marriage.
Ratio Decidendi: The court held that the burden of proof lies with the appellant to establish the grounds for divorce under Section 13, specifically that the respondent was suffering from a communicable venereal disease. The lack of medical evidence to support the claim of HIV as a communicable disease led to the dismissal of the appeal.
Final Decision: The appeal was dismissed, affirming the Family Court's decision to deny the dissolution of marriage due to insufficient evidence provided by the appellant.
Key Points: - The appeal under Sec. 28 of the Hindu Marriage Act challenges the Family Court's dismissal of the husband's petition for dissolution of marriage in M.C.No.21/2012 (!) (!) . - Marriage occurred on 2/5/2007, a male child was born, respondent developed health issues post-blood transfusion at SDM Hospital, Dharwad, and was diagnosed HIV positive, while appellant tested negative (!) . - Respondent denied malafide intent, claimed initial HIV negative test at Karjagi, affirmed willingness to lead marital life using safe methods despite HIV, and sought dismissal (!) . - Appellant failed to prove respondent suffered from communicable venereal disease (HIV) under Sec. 13(1)(v), lacking medical/expert evidence beyond bald assertions (!) (!) . - Family Court correctly dismissed petition, emphasizing husband's duty to care for wife; no error in findings (!) (!) . - Appeal dismissed, upholding Family Court's decision due to insufficient evidence (!) (!) .
JUDGMENT
VIJAYKUMAR A. PATIL, J.
This appeal under Sec. 28 of the Hindu Marriage Act, 1955 has been filed against the Judgment dtd. 3/10/2013 passed by the Additional Senior Civil Judge, Haveri, in M.C.No.21/2012 by which the petition filed by the appellant seeking dissolution of marriage has been dismissed.
2. Facts giving rise to filing of this appeal briefly stated are that, the marriage of the appellant with the respondent took place on 2/5/2007 as per the Hindu customs and rituals. It is averred that, the couple were living together in the appellant's house and from the wedlock male child namely Shivakumar was born and when the respondent wife was feeding the child she has developed nodes in her breasts. She was taken to KIMS Hospital, Hubballi for removing the nodes, they were not happy with the treatment provided therein, she was shifted to SDM Hospital, Dharwad. In the said Hospital two bottles of blood were transfused and after recovery when she returned home, after some time she experienced boils over her skin and she was taken to District Hospital, Haveri, where blood test was conducted and she was detected as HIV positive, the same was also confirmed by the SDM Hospital, Dharwad. It is further averred that, prior to her admission at SDM Hospital she was HIV negative and Doctor at SDM Hospital were surprised to know about the infection of HIV to the respondent wife due to blood transfusion and thereafter, they have provided treatment for HIV. It is also averred that, the appellant was also subjected to blood test and he was found HIV negative. On coming to know about the infection of HIV the appellant has decided that he cannot have matrimonial relationship with his wife and there were no conjugal relationship and for the said reason they have developed matrimonial discard and the appellant has decided to end the matrimonial relationship as he is unable to lead marital life with the respondent-wife due to the disease. Hence, filed the petition seeking for dissolution of marriage.
3. The respondent-wife entered appearance before the Family Court and filed objections contending that, the petition is filed with a malafide intention and she has taken specific contention that the marriage has taken place in Karjagi villge of Haveri district and therefore, she questioned the jurisdiction of Hubballi Court. It is averred that, the petition is filed under Sec. 13 of the Hindu Marriage Act, without specifying the sub-sec. under which the petition is filed and the same is liable to be rejected. The respondent has also averred that, she has not disputed the relationship between the parties and birth of the child. It is averred that, the appellant who has taken her to KIMS Hospital at Hubballi and then to the SDM Hospital, Dharwad, where she was transfused with two bottles of blood and thereafter she has recovered from the illness and went to the matrimonial house, it is her father- in-law and mother-in-law have sent her to her parents house stating that, she should come to the matrimonial home after recovery of the disease and when she noticed that rashes developed on her skin after seven to eight months of her discharge from the SDM Hospital, Dharwad, she has contacted the Doctor at Government Hospital, Karjagi where she was detected HIV negative after the blood test and again she was subjected to blood test at the SDM, where they have declared her HIV positive. It is further averred that, she is ready to lead married life with the appellant by using safe and preventive methods even though she has infected with HIV and it is the appellant who has deprived her conjugal happiness by deserting her. It is also averred that, the appellant can use safe methods and have sexual intercourse with the respondent and lead the happy life despite the fact that, she is HIV positive she is ready and willing to lead life with appellant and they have male child. It is contended that, there is a tremendous development in the field of science to p
AI
The court established that the burden of proof for claiming dissolution of marriage on the grounds of a communicable venereal disease lies with the petitioner, and mere assertions without credible ev....
The sufferance of a venereal disease in a communicable form, such as HIV, by one spouse can justify the grant of a divorce decree under Section 13(1)(v) of the Hindu Marriage Act, 1955.
Cruelty – Family Court has erred in recording finding that despite judgment in petition filed by respondent for restitution of conjugal rights, appellant has failed to join company of respondent and ....
The burden of proving the ground of cruelty in seeking dissolution of marriage lies with the party alleging it, and the evidence presented must be sufficient to support the claim.
Allegations of cruelty and non-consummation must be substantiated by clear and cogent evidence; mere claims do not justify divorce under the Indian Divorce Act.
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