NIRMAL SINGH Vs. REETA

JUDGEMENT

(1.) 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.

(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 obseve 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. 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.