Order:-The appellant-husband is the petitioner herein. He filed H.M.O.P.No.37 of 2006 for divorce under section 13(1)(5) of the Hindu Marriage Act.

2. The case of the appellant/petitioner was that he married the respondent and a child was born to them and it was found during the test that the respondent is having AIDS and he apprehends that if he has sexual relationship with his wife, the respondent, he may also get the disease and he is not having AIDS and therefore, filed petition for divorce.

3. The respondent contested the petition stating that the appellant has taken her to a doctor known to him and with the connivance of the doctor, a certificate was obtained as if she is having AIDS and even assuming that she has got the disease, she must have afflicted with the disease only through her husband as he is working as Driver going to various places.

4. The Trial Court granted divorce and the first appellate court allowed the appeal. Hence, the petitioner filed the above appeal. The petitioner also filed the present petition seeking for a direction directing the petitioner as well as the respondent to undergo medical examination to find out whether they are having AIDS and the application is contested by the wife stating that the application is not relevant to decide the appeal.

5. Mr.M.S.Palanisamy, learned counsel for the petitioner submitted that the respondent doubted the blood test taken earlier and suspected foul play and therefore, to get rid of the suspicion, both the parties may be directed to undergo blood test by a Government recognised institution, for HIV and if the petitioner also proves positive to HIV test, the case of the respondent can be considered and the blood test result of the respondent also would prove that no fraud has been practised on her while blood test was taken earlier.

6. On the other hand, Mr.N.Manoharan, learned counsel for the respondent submitted that the respondent cannot be forced to undergo medical test and it is against Articles 20 and 21 of the Constitution of India and in the recent judgment of the Supreme Court in Selvi v. State Of Karnataka 2010 CIJ 251 IPJ; ((2010) 7 SCC 263), it has been deprecated by the Honourable Supreme Court and therefore, the petition is not maintainable. Mr.Manoharan, learned counsel for the respondent further submitted that the lower appellate court allowed the appeal on the ground that it was not proved that the respondent proved positive to HIV during blood test and under section 13(1)(5) of the Hindu Marriage Act, a marriage cannot be dissolved on the ground that one of the spouses is having AIDS and to decide the appeal, the blood test is not necessary.

7. Heard both the counsel. It is the specific case of the appellant/petitioner that he is not having AIDS and it was proved during medical examination that the respondent proved positive to HIV and therefore, he applied for divorce and the lower appellate court disbelieved the certificate on the ground that the doctor was not examined to prove that he was not afflicted with HIV and therefore, the respondent could have contracted the disease from him and with a view to prove that the earlier blood test report was not obtained by practising fraud, a direction has to be given directing the parties to undergo medical test for HIV.

8. It is also seen from the judgment of the lower appellate court that the lower appellate court allowed the appeal filed by the respondent only on the ground that the petitioner/appellant has not proved that the respondent tested positive to HIV and that is not a ground for granting divorce.

9. In the judgment reported in (2010) 7 SCC 263 cited supra, the Honourable Supreme Court dealt with Narcoanalysis, polygraph and BEAP tests and held that those tests are violative of Articles 20(3) and 21 of the Constitution of India. The Honourable Supreme Court in that judgment upheld the act of taking blood sample and held that that will not be violative of Article 20(3)

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