HIV Patients' Right To Marry. Module 4

HIV Patients' Right To Marry
Indian-Bangladeshi laws in perspective
http://www.thedailystar.net/law/2008/02/02/index.htm
One of the hotly debated legal issues of the present time is whether HIV patients should have right to marry. Though a good number of countries have already enacted laws giving legal right to marry to the AIDS patients, it is still undecided in most of the countries of the globe. India and Bangladesh are two neighbouring countries which do not have any specific legislation settling the issue, though HIV/AIDS is considered to be a great threat to both Indian and Bangladeshi society. This write-up examines the present legal position regarding this issue in both the countries.

According to Islamic law and other modern laws, marriage is a civil contract which permits two persons of opposite sexes to live together. A successful marital life requires both mental or psychological and physical union of two persons. That is why the conditions for contract of marriage include both mental and physical elements. For entering into a marriage contract, a person has to attain a specified age, has to be mentally and physically healthy. Like any other contract, if any of these mental or physical conditions is not fulfilled, a person cannot marry. Even after marrying, if any of the conditions becomes absent, for example, if any of the spouses becomes insane or sexually incapable, the spouse is allowed to come out of that contract marital bondage. All these issues are regulated by laws of marriage and divorce.
Almost all marriage laws - for example, personal laws of Muslim, Hindu, Christian, Persian, as well as Special Marriage Act - provide the 'venereal disease' or 'sexually transmitted disease' as a ground for divorce to either husband or wife. HIV positive or AIDS is also a 'sexually transmittable disease'. Hence, legally HIV positive is also treated as a valid ground for divorce. (However, when recently an Indian court allowed divorce on the ground of HIV, it created huge controversy among the citizenry. In an earlier article titled 'whether HIV should be a valid ground for divorce' -- which can be found in The Daily Star, 17 Nov 2007 or at www.thedailystar.net/law/index.htm - I discussed about the controversy.) Now, if HIV positive is treated as a valid ground for divorce, it might also be treated as a legal incapacity to enter into a marriage contract. Then comes a question whether an HIV patient has right to marry.

Neither the Indian nor the Bangladesh Constitution has specifically recognised right to marry as a fundamental right. Though some legal experts argue that the right to marry is constitutive of one's right to life and that this right cannot be qualified on the basis of the health status of the person, seemingly, it is a legal right for only those who are mentally and physically capable. This, however, does not mean that a person suffering from a disease that makes him/her sexually incompetent loses his/her right to marry. When a person suffers from sexual disease, his/her right to marry becomes suspended only, and it revives again when the person recovers from the disease.

But when the disease is HIV positive or AIDS, which is medically treated as rarely recoverable, does the AIDS patients lose their right to marry? Suppose, an innocent 25 years youth is in some way infected with HIV positive and there is no possibility to recover from it, should his/her right to marry be suspended lifelong? These are questions to which there are no clear-cut answers in Indian or Bangladesh laws.

Legally, every young person has right to marry and to enter into a marriage contract. But unlike any commercial contract, responsibilities of the contract of marriage are not limited only within the contractual parties. Marriage is the foundation of a family as well as social relations. A couple owes a great responsibility to the family and society. In other words, right to marry is not an absolute one; it has to correspond to some other duties. For example, among the various objectives of a marriage, two prime objectives are to legalise the sexual intercourse between two persons of opposite sexes, and to procreate children. But through marriage, law does not only give right to two adult persons to satisfy their biological needs and to give birth to legitimate children, but also does impose a duty not to harm their life partner and children in any way. If a person is not able to perform this duty, he/she cannot exercise his/her right to marry.

Undoubtedly, HIV/AIDS is a deadly disease which can easily be transmitted to husband from wife and vice versa through sexual intercourse and it may infect the baby in the womb. Apparently, both Bangladeshi and Indian laws do not permit an HIV/AIDS patient to marry a healthy person and to infect their future innocent generation. These laws not only disallow it but also regard it as an offence. The penal provisions regarding this are same in both countries.

Section 269 of the Penal Code provides 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.

Again, section 270 of the 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.

Hence, if a person suffering from the dreadful disease AIDS, knowingly marries a man or woman and thereby transmits infection to that person, he/she would be guilty of offences indicated in sections 269 and 270 of the Penal Code.

But if the global character of AIDS, its spread, infections, and human rights of the AIDS patients are taken into consideration, such a swiping legal decision cannot be made. And logically, the above mentioned legal provisions should not be applicable to a case of HIV/AIDS. In fact, these legal provisions were made at a time when HIV/AIDS was not detected. These provisions were made taking in consideration the other common diseases that are curable by proper treatment.

However, in absence of clear statutory provisions or policy guidelines, it is the court to decide whether these legal provisions will be applicable to a case of HIV/AIDS. So far as I know, no Bangladeshi court has faced the issue till today. But Indian courts faced this issue almost a decade ago. In November 1998, a Division Bench of the Supreme Court of India held that if an HIV patient after knowing that s/he has been suffering from such dreadful disease decides to marry s/he shall be punishable under section 269 & 270 of the Indian Penal Code.

This judgement not only equated HIV to a 'venereal disease in a communicable form' but also observed that “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.”

Of course, the court observed that the patients suffering from the dreadful disease AIDS deserve full sympathy. They are entitled to all respects as human beings. They should not be avoided, which otherwise, would have bad psychological impact upon them. 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.

At least one point is clear from these observations that the honourable Supreme Court Bench failed to take note that HIV also spreads through other non-sexual means, and any innocent person can be a victim of HIV/AIDS anytime.

The decision of the Supreme Court sent shock waves in the HIV community throughout the world. Subsequently another petition was filed before the Supreme Court against this judgment. A three-Judge-Bench decided that the earlier above decision was made without hearing all concerned groups (especially the NGOs) who are active in this field. Therefore, the learned three-judge-bench expunged the observations made in the abovementioned judgment and restored the rights of an HIV infected person to marry.

Nevertheless, the debate whether HIV/AIDS patients should have right to marry is not over. However, the overwhelming opinion world wide is that law should not take away the right of an HIV/AIDS patient to marry, as it is a basic human right. What law can do is to provide guidelines how they should exercise their right to marry. For example, as Indian Supreme Court guided, an HIV positive person must disclose his/her status to the other party. Then, if an infected or uninfected person knowingly wants to marry an HIV/AIDS patient, law should not bar them. Again after marriage, their right to parenthood shall be suspended; so long scientific development ensures that HIV/AIDS parents can give birth to an uninfected baby.

In fact, HIV/AIDS is not just a disease. It is a global problem. So, all the issues related to AIDS should be decided globally. The world community should come forward to adopt a unique policy based upon human rights of HIV patients. Hopefully, UNAIDS has already been working for this purpose. Among the 12 International Guidelines on HIV/AIDS and Human Rights provided by UNAIDS, guideline 3 is very much pertinent here. It says, states should review and reform public health laws to ensure that they adequately address public health issues raised by HIV/AIDS, that their provisions applicable to casually transmitted diseases are not inappropriately applied to HIV/AIDS and that they are consistent with international human rights obligations.

When it is important to see how much of these guidelines are being followed by the states, it must be kept in mind that law and policy is never a complete solution of any problem, but a partial solution only. As it is claimed by AIDS activists, the basis of discrimination against people living with HIV/AIDS is fear, and this fear comes mostly from wrong or distorted information. So, along side law and policy but with the same gravity, these countries must adopt a sufficient measure to correct misunderstandings about HIV.

Suspension of HIV positive person's Right to marriage. Module 4

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.

http://gateway.nlm.nih.gov/MeetingAbstracts/ma?f=102238690.html

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.

http://www.lawyerscollective.org/hiv-aids/activities/legal-services-sc-right-to-marry

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.

References:

http://gateway.nlm.nih.gov/MeetingAbstracts/ma?f=102241237.html

http://www.aegis.org/conferences/iac/2000/WePpE1349.html

http://www.issuesinmedicalethics.org/074pr106.html

http://www.heart-intl.net/HEART/Legal/Comp/newsletters_3.pdf

Paper in:

June 2000