Madras High Court
P.Ravikumar vs Malarvizhi @ S.Kokila on 17 February, 2011
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 17.2.2011 Coram The Honble Mr.Justice R.S.RAMANATHAN M.P.No.1 of 2010 in Civil Miscellaneous Second Appeal No.40 of 2008 P.Ravikumar Petitioner vs. Malarvizhi @ S.Kokila Respondent For petitioner : Mr.M.S.Palanisamy For respondent : Mr.N.Manoharan Prayer:- Petition for directing the petitioner and respondent to undergo blood test with an authorised Government recognised institution for HIV. 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) 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) of the Constitution of India. The Honourable Supreme Court relied upon the decision of the US Supreme Court in BREITHAUPT v. ABRAM (1 L Ed 2d 448:352 US 432(1956)) wherein the contentious issue was whether a conviction based on involuntary blood test violated the due process of law and held in para 203 as follows:-
"This line of precedents shows that the compelled extraction of blood samples in the course of a medical examination does not amount to "conduct that shocks the conscience". There is also an endorsement of the view that the use of "force as may be reasonably necessary" is mandated by law and hence it meets the threshold of "procedure established by law"."
10. Further, in para 211 and 212 in the said judgments, the Honourable Supreme Court has held as follows:-
"211. For example, in 'X' v. Hospital 'Z' ((1998) 8 SCC 296), it was held that a person could not invoke his "right to privacy" to prevent a doctor from disclosing his HIV positive status to others. It was ruled that in respect of HIV positive persons, the duty of confidentiality between the doctor and patient could be compromised in order to protect the heal of other individuals. With respect to the facts in that case, Saghir Ahmad,J. Held: (SCC p.307, para 29) ... When a patient was found to be HIV(+), its disclosure by the doctor could not be violative of either the rule of confidentiality or the patient's right of privacy as the lady with whom the patient was likely to be married was saved in time by such disclosure, or else, she too would have been infected with a dreadful disease if marriage had taken place and been consummated.
212. However, a three-Judge Bench partly overruled this decision in a review petition. In 'X' v. Hospital 'Z' ((2003) 1 SCC 500), it was held that if an HIV positive person contracted marriage with a willing partner, then the same would not constitute the offences defined by Sections 269 and 270 of the Penal Code. (Section 269 IPC defines the offence of a "negligent act likely to spread infection of disease dangerous to life" and Section 270 contemplates a "malignant act likely to spread infection of disease dangerous to life".)"
11. In the judgment reported in M.VIJAYA v. SINGARENI COLLIERIES CO. LTD. (AIR 2001 AP 502), it has been held as follows:-
"There is an apparent conflict between the right to privacy of a person suspected of HIV not to submit himself forcibly for medical examination and the power and duty of the State to identify HIV infected persons for the purpose of stopping further transmission of the virus. In the interests of the general public, it is necessary for the State to identify HIV positive cases and any action taken in that regard cannot be termed as unconstitutional as under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion, will not be in breach of Article 27 of the Constitution of India."
12. The above decision was approved by the Honourable Supreme Court in the decision reported in (2010) 7 SCC 263 cited supra. In the decision reported in SHARDA v. DHARMPAL ((2003) 4 SCC 493), the Honourable Supreme Court considered this question in detail and held that taking of blood sample will not amount to violation of Article 20(3) and 21 of the Constitution of India. The Honourable Supreme Court also upheld that directing a person to give blood sample for the purpose of finding out whether he has proved positive to HIV or not will not amount to violation of Articles 20(3) and 21 of the Constitution of India.
13. Therefore, the contention of the learned counsel for the respondent that the respondent cannot be compelled to give her blood sample cannot be accepted when the appellant has come forward to give blood sample to prove his innocence and also to prove that he could not have communicated the disease to his wife the respondent, and therefore, the respondent ought to have submitted herself for medical examination when she alleged that earlier blood sample was obtained by practising fraud and the results could have been manipulated. Whether the result of the blood test can be a ground for deciding the case is immaterial at this stage. Therefore, I find merit in the contention of the petitioner.
14. In the result, the petition is allowed. The petitioner and the respondent are directed to appear before the Dean, Madras Medical College Hospital, Chennai within a period of fifteen days from the date of receipt of copy of this order for giving blood sample to find out whether they are having AIDS or not.
15. The Dean Madras Medical College Hospital, Chennai is directed to get the blood sample and submit the report in a sealed cover to this court within a period of fifteen days from the date of taking the sample from the parties.
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