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Synopsis

A Division Bench of Justice Nitin Jamdar and Justice Sharmila U Deshmukh of the Bombay High Court has refused to grant divorce to a man who had falsely claimed that his wife was HIV positive.

The husband had claimed that his wife was suffering from tuberculosis and he had helped her get treatment for the same. Subsequently, the husband claimed that his wife contracted herpes and after conducting all the tests his wife tested positive for HIV which caused him and his family mental agony.

The wife was then staying at her matrimonial house and when she returned back to her husband’s house, she was asked to go back by the husband at his mother’s request.

The husband then filed a petition for divorce on the grounds that his wife had HIV. However, the wife denied the allegation and filed an application under the Domestic Violence Act seeking a sum of Rs. 5 lakh and accommodation. The Family Court rejected the petition of the husband and partly allowed the application filed by the wife.

The husband then moved the High Court challenging the order of the Family Court.

The High Court rejected the husband’s argument that there was an irretrievable breakdown of the marriage and said that:

“Apart from the fact that the ground of irretrievable breakdown of marriage has not been taken in the Appeal Memo, we find that on the ground of irretrievable breakdown of marriage, the Petitioner cannot be permitted to take advantage of his own wrong.”

The bench said that the husband himself had refused to cohabit with his wife even though the HIV DNA was not detected. The court said,

“Inspite of the report at Exh 27 which shows the test result as HIV DNA “not detected”, the Petitioner has refused to co-habit with the Respondent and defamed the Respondent in the society by informing relatives and friends that the Respondent has tested positive. The submission of the Ld. Counsel for Petitioner seeking grant of divorce on ground of irretrievable break down of marriage is liable to be rejected outright.”

Further, the court noted that the petitioner had not examined any expert to establish that his wife was HIV positive. The order read,

“The burden was cast upon the Petitioner to prove that the Respondent was suffering from venereal disease in a communicable form. The Petitioner has not examined any expert to establish that Respondent is a HIV positive patient, and on the contrary the report which is at Exhibit-27 shows that HIV-1 and HIV-2 DNA not detected. There is not an iota of evidence produced by the Petitioner that the Respondent had tested positive for HIV, which caused him mental agony or that the Respondent has treated him with cruelty.”