IMPORTANT POINT
When a spouse is having that HIV disease, other spouse is entitled to get declaration of divorce.

R.S. Ramanathan, J.—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 responde