We may now examine the right based on confidentiality in the context of marriage.
Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and on on this planet.
Mental and physical health is of prime importance in a marriage, as one of the objects of the marriage is the procreation of equally healthy children. That is why, in every system of matrimonial LAW, it has been provided that if a person was found to be suffering from any, including venereal disease, in a communicable form, it will be open to the other partner in the marriage to seek divorce. Reference, for instance, may be made to Section 13(i)(v) of the Hindu Marriage Act, 1955 which provides as under:
“13. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
(i) xx xx xx
(v) HAS BEEN SUFFERING FROM VENEREAL DISEASE IN A COMMUNICABLE FORM.”
So also Section 2 of the Dissolution of Muslim Marriages Act, 1939 sets out that if the husband is suffering from a virulent venereal disease, a woman married under Muslim LAW to such person shall be entitled to obtain a decree for dissolution of her marriage.
Under the Parsi Marriage and Divorce Act, 1936, one of the grounds for divorce set out in Section 32 is that the defendant has, since the marriage, infected the plaintiff with venereal disease.
Under the Indian Divorce Act, 1869, the grounds for dissolution of a marriage have been set out in Section 10 which provides that a wife may petition for dissolution if her husband was guilty of incestuous adultery, bigamy with adultery or of rape, sodomy or bestiality.
Under Section 27 of the Special Marriage Act, the party to a marriage has been given the right to obtain divorce if the other party to whom he or she was married was suffering from venereal disease in a communicable form.
The emphasis, therefore, in practically all systems of marriage is on a healthy body with moral ethics. Once the LAW provides the “venereal disease” as a ground for divorce to either husband or wife, such a person who was suffering from that disease, even prior to the marriage cannot be said to have any right to marry so long as he is not fully cured of the disease. If the disease, with which he was suffering, would constitute a valid ground for divorce, was concealed by him and he entered into marital ties with a woman who did not know that the person with whom she was being married was suffering from a virulent venereal disease, that person must be injuncted from entering into marital ties so as to prevent him from spoiling the health and, consequently, the life of an innocent woman.
REF: AIR 1999 SC 495 : (1998) 1 Suppl. SCR 723 : (1998) 8 SCC 296 : JT 1998 (7) SC 626 : (1998) 6 SCALE 230
Categories: Judicial Dictionary