GANESH Vs. SHARADA

JUDGEMENT

(1.) 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 prevent the spread of HIV and the respondent is availing treatment for the said disease and there are fair chances of total cure and sought for dismissal of the petition.