The suspension of the legal right to marry of people living with HIV/AIDS - Child's rights.
Issues involved:
Right to health
Universal Declaration of Human Rights (Article 25)
Article12.1 International Covenant on Economic, Social and Cultural Rights
Concept of discrimination Article 14,15,16 of Constitution of India
Fundamental Rights Chapter (Part III) of the Constitution
Article 21 Right to Health
Article 27
Vincent Parikulangara v Union of India 1987 (2) SCC 165 AIR 1987 SC 990
Supreme Court of India delivered a judgement in Sept 98 that the law imposes a duty on a person living with HIV/AIDS effect of spreading the infection of his own discease, which is obviously dangerous to life, to the woman he marries.
Supreme Court of India - Right to Marry
Mr. X v. Hospital Z (1998) 8 SCC 296, AIR 1998 SCW 3662 -- Supreme Court of India (Right to Marry)
MR. X (The Appellant) obtained the Degree of MBBS in 1987. In June, 1990 he joined a state Government's state medical and health service as Assistant Surgeon Grade-I. In September, 1991 he joined the further course of Diploma in Opthamalogy which he completed in April, 1993. In August, 1993 he resumed his duties in the State Health service as Assistant Surgeon Grade - I.
Mr. X's uncle who was a minister in the state government was ailing from a disease which was provisionally diagnosed as Aortic Anuerism. He was advised to go to the 'Z' Hospital and Mr. X was directed by the Government of the State to accompany the said patient to the South of India for treatment. He was posted for surgery on May 31, 1995 which, however, was cancelled due to shortage of blood. On June 1, 1995 Mr. X and his driver were asked to donate blood for the operation. Their blood samples were taken and the result showed that Mr. X's blood group was A(+ve). However, Mr. X was not disclosed the result of his tests at all.
In August 1995 the appellant proposed marriage to one Ms. 'Y' which was accepted and the marriage was proposed to be held on December 12, 1995. In the meantime the Hospital informed the minister that Mr. X's blood had tested positive for HIV. When he came to know of this Mr. X himself called of the marriage. The appellant went again to the respondents' hospital where several tests were conducted and he was confirmed HIV(+ve). Since the marriage had been settled but was subsequently called off, several people including the members of the appellant's family and persons belonging to his community became aware of the appellant's HIV(+ve) status. This resulted in severe criticism of the appellant and he was ostracized by the community. The appellant left his State around November 26, 1995.
The appellant then approached the National Consumer Disputes Redressal Commission for damages against the respondents, on the ground that the information which was required to be kept confidential at common law and under medical ethics was disclosed illegally and, therefore, the respondents were liable to pay damages. The Commission dismissed the Petition summarily by its order dated 3rd July 1998 on the ground that the appellant may seek his remedy in the civil court.
Mr. X therefore approached the Supreme Court. The question of law before the court was whether the National Consumer Forum had the jurisdiction to entertain a case in which the plaintiff was HIV positive and whose status was disclosed by the hospital to 3rd parties. The Supreme Court, however, chose to pass a judgment on merits of the issues and held:
a. Although the doctor-patient confidentiality was important and part of the medical ethics incorporated by the then Medical Council Act, a patient's right to confidentiality was not enforceable in a situation where the patient is HIV positive, if he stood the risk of spreading it to his prospective spouse.
b. Since HIV is fatal and the life of the spouse has to be saved, the right to privacy of the patient is not absolute in this situation and may be restricted. There is nothing wrong, therefore, in Hospital informing the prospective spouse of Mr. X's HIV status.
c. Since Indian matrimonial laws provide venereal disease as a ground for divorce, a person suffering from a VD has no right to get married till s/he is fully cured and such right must be treated as a 'suspended right'.
d. Since acts likely to spread communicable diseases is a crime under the Indian Penal Code, the failure of the hospital to inform the spouse of the disease would make them participant criminals.
e. Patients suffering from 'AIDS' deserve full sympathy; they are entitled to all respects as human beings. They must have their avocation and jobs etc. cannot be denied to them.
Against this Judgement application were filed to review and clarify.
Do HIV positive patients have a right to marry?
Prof Gopinath N Shenoy
A very interesting issue recently came up before the Hon’ble Supreme Court of India. The issue was to decide whether an HIV positive patient has a right to marry! Justice S Saghir Ahmad, decided this issue along with many other issues and said that every young man or, for that matter, a woman’s right to marry cannot be accepted in the absolute terms in which it is being contended. With regard to age and biological needs, a person may have a right to marry but this right is not without a duty.
Ifa person is suffering from any communicable venereal disease or is impotent so that the marriage has a chance of resulting in a complete failure or that his wife would seek divorce from him on that ground, that person is under a moral, as also a legal duty to inform the woman with whom the marriage is proposed that he was not physically healthy and that he was suffering from a disease which was likely to be communicated to her.
Marriage is the sacred union of two healthy bodies of opposite sexes, legally permissible. It has to be mental, psychological and a physical union. When two souls thus unite, a new soul comes into existence. That is how, the life goes 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 venereal disease in a communicable form, it will be open to the other partner in the marriage to seek divorce. Reference can be made to Section 13(i)(v) of the Hindu Marriage Act, 1955 which provides that any marriage solemnised, whether before or after the commencement of the 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 has been suffering from venereal disease in a communicable form.
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 incestous 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.
In this situation, the right to marry and duty to inform about his ailment are vested in the same person. Moreover, so long as the person is not cured of the communicable venereal disease or impotency, the right to marry cannot be enforced through a court of law and shall be treated to be a ‘Suspended Right’.
Learned Justice Sagir Ahmed expressed another aspect of this matter as well. Sections 269 of the Indian Penal Code provided that whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both (negligent act likely to spread infection of disease dangerous to life).
Section 270 of the Indian Penal Code also states whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both (malignant act likely to spread infection of disease dangerous to life).
These two sections spell out two separate and distinct offences by providing that if a person, negligently or unlawfully, does an act which he knew was likely to spread the infection of a disease, dangerous to life, to another person, then the former would be guilty of an offence, punishable with imprisonment for the term indicated therein. Therefore, if a person suffering from the dreadful disease Aids, knowingly marries a woman and thereby transmits infection to that woman, he would be guilty of offences indicated in Sections 269 and 270 of the Indian Penal Code.
Learned Justice Sagir Ahmed was of the opinion that the above statutory provisions thus impose a duty upon the infected person not to marry as the marriage would have the effect of spreading the infection of his own disease, which obviously is dangerous to humanity,
apart from the woman whom he marries. Aids is the product of undisciplined sexual impulse. This impulse, being the notorious human failing if not disciplined, can afflict and overtake anyone how high so ever or, for that matter, how low he may be in the social strata.
The patients suffering from the dreadful disease Aids deserve full sympathy. They are entitled to all respects as human beings. Their society cannot, and should not be avoided, which otherwise, would have bad psychological impact upon them. They have to have their avocation. Government jobs or service cannot be denied to them as has been laid down in some American decisions (School Board of Nassau Country, Florida vs. Airline (1987) 107 S Ct 1123; Chalk vs USDC CD of Cal (9th Circuit 1988) 840 2F 2d 701; Shuttleworth vs Broward Cty (SDA Fla 1986) 639 F Supp 654; Raytheon vs Fair Employment and Housing Commission, Estate of Chadbourne (1989) 261 Cal Reporter 197). But, sex with them or possibility thereof has to be avoided as otherwise they would infect and communicate the dreadful disease to others. The Court cannot assist that person to achieve that object.
Infringement of ’Suspended Right to Marry’ could not be legally compensated by damages either in torts or common law. Subsequent to this ruling of the Hon’ble Supreme Court another petition was filed before a three-Judge-Bench of the same Court. The issue to be decided was whether it was right and proper to demolish the right to marry in all HIV patients. The issue was also whether an HIV positive patient could marry an infected or an uninfected person after disclosing that he suffered from the dreadful disease.
The three-Judge-Bench decided that the decision supra was decided by learned Justice Sagir Ahmed without hearing all concerned groups (especially the NGOs) who are active in this field. Therefore the learned three-judge-bench was pleased to expunge the observation made by Justice Sagir Ahmed in this regards thus restoring the rights of an HIV infected person to marry.
http://www.expresshealthcaremgmt.com/20040115/legalities01.shtml
Ghandikota P, Johari V; International Conference on AIDS.
Int Conf AIDS. 2000 Jul 9-14; 13: abstract no. WePpE1349.
P. Ghandikota, 7/10 Botawala Building 2nd Floor Horniman Circle, Fort, Mumbai 400023, India, Tel.: +91 22 267 6213/ 267 6219, Fax: +91 22 270 25 63, E-mail: aidslaw@vsnl.com
Issue: The position of protecting the rights of the unborn child, whose parents are both HIV-positive, by legally suspending the right to marriage of PLWHAs in India, relies on hypothetical scenarios and presupposed notions that cannot ethically or legally justify the suspension of the fundamental right to marriage by a court of law.
Description: It is possible for discordant couples or couples wherein both partners are HIV-positive to live healthy marital lives, which includes the possibility of bearing HIV-negative children. Specifically, the risk of transmission of the HIV-virus from mother to child can now be reduced to a negligible amount with appropriate medical intervention, such as AZT treatment. Furthermore, the couple may choose to adopt a child. From a legal standpoint and under common law, the court does not have right to intervene on behalf of the unborn child.
Conclusion: The reliance on notions of self versus other further marginalises people living with HIV/AIDS. The solution to preventing the spread of the virus to vulnerable groups, including children of HIV-positive parents, should be centered on creating an affirmative and enabling environment whereby positive persons and their families are able to access the proper social and medical services available.
Protest against ruling on HIV marriage
Lawyer Anand Grover called for public protest against the Supreme Court ruling suspending the AIDS-affected person's right to marry. He said the right to marry is a fundamental right and no court of law can 'suspend' it. The apex court did not take cognisance of the fact that HIV-positive people get married with full, free and informed consent of their partner who may or may not have HIV positive status. "The restriction on the marriages of HIV- infected persons can have serious repercussions. The isolation of such persons will drive the epidemic underground, as doctors and hospitals will not maintain confidentiality with regard to their HIV status," he said. He said the apex court was right in making it a moral and legal right for an HIV-positive person to disclose his/her status to the prospective spouse.
Lawyer calls for protest on SC ruling in HIV marriage case. Indian Express, September 5,1999.
June 2000
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