Spouse’s illness no ground for seeking divorce: HC

Saurabh Malik

Tribune News Service

Chandigarh, November 6

A man who takes a woman as his lawfully wedded wife in health cannot part ways with her in her sickness, the Punjab and Haryana High Court has said in a significant judgment.

The high court has made it clear that every communicable disease does not afford a spouse a ground for divorce under the Hindu Marriage Act. A person could seek divorce in case the partner was suffering from a virulent and incurable form of leprosy or 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.”

Justice K Kannan also made it clear a spouse could not be allowed to seek partner’s medical examination for checking ailments such as Hepatitis B; and such an act would reflect cruelty on his part.

Acting on a petition filed by a husband for divorcing wife suffering from Hepatitis B, Justice Kannan said there was no ground for a husband to divorce his wife complaining of illness.

Elaborating upon the law, Justice Kannan asserted cruelty under Section 13 of the Act was a ground for divorce in case a spouse treated the other half with cruelty after marriage. Cruelty must be a voluntary act. Judgments suggested voluntary refusal would constitute cruelty and afford a ground for divorce if a woman refused “sexual access”.

Referring to the case in hand, Justice Kannan asserted the woman was not blamed for denying “sexual access” to husband. Rather, the petitioner’s apprehension was of contracting Hepatitis B due to access.

“A person suffering from Hepatitis B, which could be communicated by sexual access, is not a ground available under Section 13. Perhaps, it is for 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….

“In typical Indian social condition, if husband is suffering from illness, it is hardly ever likely that a wife will abandon him…. The present petition itself is an example of how cruel a man can be to a woman in a matrimonial relationship”.

“Was the husband cruel to wife by resorting to divorce in her difficult times of illness or the wife guilty of cruelty in contracting an illness unwittingly? The trial court will decide it. Hopefully, it will not be tough answer”.