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2023 DIGILAW 718 (KAR)

Ganesh v. Sharada

2023-05-29

S.G.PANDIT, VIJAYKUMAR A.PATIL

body2023
JUDGMENT VIJAYKUMAR A. PATIL, J. 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. 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. 4. In support of the appellant's case he has examined himself as P.W.1 and produced documents as Ex.P.1 and P.2. 4. In support of the appellant's case he has examined himself as P.W.1 and produced documents as Ex.P.1 and P.2. The respondent has examined herself as R.W.1 and produced the document as Ex.R.1. The Family Court based on the pleading and evidence on record vide impugned Judgment dtd. 3/10/2013 was pleased to dismiss the petition filed by the appellant-husband, being aggrieved by the same the petitioner has filed this appeal. 5. Learned counsel Sri. N.P.Vivekmehta for the appellant submits that, the Family Court has committed error in considering the pleading and evidence on record and has come to conclusion that, the appellant has failed to prove his case and dismissed his petition filed under Sec. 13 of the Hindu Marriage Act, 1955. It is submitted that, the material on record establishes that the respondent-wife has been infected with the HIV and the said disease is communicable and the said disease is incurable, the Court below has not appreciated this fact and has erroneously rejected the petition. It is further submitted that, the Family Court has erred in dismissing the petition without properly appreciating the evidence and without appreciating the fact that the respondent-wife has admitted that she is HIV positive. The Family Court has not appreciated the fact that, the appellant cannot lead married life with the respondent-wife as the disease is incurable. It is also submitted that, the Family Court has failed to appreciate the fact that, the appellant has deprived the pleasure from the respondent as she is unable to perform sexual intercourse with the appellant. These aspects have not been properly considered by the Family Court and erroneously dismissed the petition filed by the husband. Hence, sought to allow the appeal by dissolving the marriage. In support of his contention he has relied the decision of the Hon'ble High Court of Madras in the case of P.Ravikumar Vs. Malrvizhi @ S. Kokila in CMSA No.40/2008 dtd. 15/4/2013. 6. Per contra, Sri. Hence, sought to allow the appeal by dissolving the marriage. In support of his contention he has relied the decision of the Hon'ble High Court of Madras in the case of P.Ravikumar Vs. Malrvizhi @ S. Kokila in CMSA No.40/2008 dtd. 15/4/2013. 6. Per contra, Sri. Prashant V. Mogali, learned counsel for the respondent supports the impugned Judgment and submits that the Family Court has appreciated the pleading and evidence on record and has come to the conclusion that, the appellant should not lose the hope and he should be positive and optimist and it is his duty to protect and nourish his wife till her last breath and has come to the conclusion that the appellant has not made out sufficient ground to seek a decree of divorce only for the reason that his wife is infected with HIV, when there is no fault from herself. He sought for the dismissal of the appeal. 7. We have considered the submissions made by the learned counsels for the appellant, respondent and have perused the memorandum of appeal and records of the Family Court. 8. It is not in dispute that the marriage between the appellant and the respondent took place on 2/5/2007 as per the Hindu customs and rituals and from the wedlock, a male child has been born. It is also not in dispute that, the respondent wife has taken treatment for removal of nodes from her breasts initially at KIMS Hospital, Hubballi and thereafter SDM Hospital, Dharwad and she was transfused with two bottles of blood during the treatment and after quite some time she has noticed that there are boils/rashes on her skin, hence, she was taken to the Hospital where it was informed that, she has been infected with HIV disease. Keeping in mind the above factual matrix and on meticulous examination of pleading and evidence on record, it is evident that the appellant has deposed before the Family Court reiterating the averments made in the petition which have been specifically denied by the respondent-wife in her written statement and her testimony. The appellant has filed the petition before the Family Court under Sec. 13 without specifying under which subsec. he is invoking jurisdiction of the Family Court for seeking dissolution of a marriage. The appellant has filed the petition before the Family Court under Sec. 13 without specifying under which subsec. he is invoking jurisdiction of the Family Court for seeking dissolution of a marriage. On perusal of pleading and evidence on record, it can be fairly inferred that the appellant has filed petition basing his grounds under Sec. 13 (1) (V) "has been suffering from venereal disease in a communicable form" . The heavy burden is on the appellant to prove before the Family Court that, the respondent-wife is suffering from HIV disease and the said disease is venereal disease in a communicable form. In our considered view the appellant has failed to establish a fact before the Family Court that, the respondent wife is suffering from HIV disease and the said disease is venereal disease and communicable. The appellant except making bald assertion in the pleading and the same are reiterated in his evidence has not placed any evidence before the trial Court to come to conclusion that the respondent is suffering from HIV disease and the said disease is venereal disease and communicable. The appellant has failed to lay proper foundation to establish the grounds for dissolution of the marriage, except the self serving statement of the appellant, no evidence has been placed before the Family Court to dissolve the marriage. In the absence of any experts/Doctors evidence it would be difficult for this Court to come to conclusion that the HIV disease is incurable disease, venereal disease and communicable disease. The Family Court has recorded categorical finding that, it is the duty of the appellant- husband to take care of the respondent-wife during the difficult times and he can lead happy married life with the respondent. We do not find any error or perversity in the aforesaid finding calling for interference. The appellant has failed to place any material before Court to come to conclusion that the appellant is unable to lead marital life with the respondent and in the absence of any cogent and acceptable evidence, we do not find any merit in the plea of the appellant. The appellant has relied on the decision of the learned Single Judge of Madras High Court, and it has only the persuasive value. The fact and circumstance of the case on hand is different from that of case referred supra. 9. The appellant has relied on the decision of the learned Single Judge of Madras High Court, and it has only the persuasive value. The fact and circumstance of the case on hand is different from that of case referred supra. 9. The Family Court on meticulous appreciation of pleading, evidence on record has given categorical finding that the appellant has failed to prove the grounds for dissolution of marriage and dismissed the petition, we do not find any reason or error in the aforesaid finding calling for interference in the present appeal. 10. For the aforementioned reasons, we do not find any merit in the appeal, the same fails. 11. Hence, the appeal is dismissed. No orders as to costs.