Venereal diseases, also known as sexually transmitted diseases(‘STD’), form a ground for divorce in India under the personal and the secular laws of divorce, (Jewish customs being an exception). In the Hindu Marriage Act as well as the Special Marriage Act, the divorce can be granted if the respondent “has been suffering from venereal disease in a communicable form”. While, under The Dissolution of Muslim Marriage Act, if “The husband is suffering from a virulent venereal disease”the wife can seek divorce. As per the Parsi Marriage and Divorce Act, a spouse can seek divorce if the other spouse has infected him or her with a venereal disease. Lastly, under the Divorce Act, the spouse is entitled to divorce if the respondent is suffering from any venereal disease, for a period of not less than two years immediately preceding the presentation of petition.
A spouse can approach the court of law under the providential fault ground, and can get his or her marriage dissolved. Nevertheless, there are certain drawbacks in the law that disables the patient-spouse, i.e. the one suffering from STD, from safeguarding his/her interest, thus, preventing him/her to properly contest the case in the absence of adequate legal recourse. In the present article, the authors will try to analyze and find the effective solution to the highlighted problems.
The significant and ignored ‘curability’ factor under divorce laws
All the personal and secular laws regarding divorce, except in Jews, ignore the ‘curability’ factor of significance in venereal diseases. The innocent-spouse, i.e. the one other than the spouse suffering, qualifies to seek divorce even if the disease is ‘curable’. We have to keep in mind the fact that most STDs are curable. For instance, common STDs like Chlamydia, Syphilis, Gonorrhea, Crabs and Trichomoniasis, are majorly curable with the assistance of antibiotics and antiviral medications. These medications are often accessible and affordable. The ‘curability factor’ of the disease, if taken into consideration, would avoid unnecessary divorce. It would, thereby, contribute in protecting the institution of marriage. Therefore, it is important to qualify ‘venereal disease’ with a word ‘incurable’ through an amendment in divorce laws in order to exclude ‘curable’ venereal diseases from the grounds of divorce.
In these laws, the second requisite is to ensure the presence of sufficient time span to the patient-spouse. This will provide the time for the treatment in cases where it is curable, before which the divorce cannot be sought. Consequently, it will safeguard the interest of the party suffering from ‘curable’ venereal disease. However, it can sometimes be uncertain as to how long will the person take to recover from the disease. There can also be a case, where it would be clear that the time span required to cure it would be very broad. In both these cases, it would be a gross injustice to the innocent spouse to keep him or her in a marital bond for an unreasonably long period. Therefore, a statutory time limit has to be determined in order to make law justifiable. The task of determining a legitimate time span is a policy decision that is to be taken after due consultations with various stakeholders based on empirical and scientific evidence.
Absence of incurable venereal disease ‘simpliciter’ as a fault ground under Parsi Marriage & Divorce Act, 1936-88
As discussed above, under the Parsi Marriage and Divorce Act, 1936, a spouse can sue for divorce only when the respondent spouse has infected him or her with venereal disease, that is, respondent’s STD is not a ground for divorce until unless he or she gets contracted with it.
In Gollins v. Gollins and William v. William, the court held that the purpose of divorce law is not to punish the guilty spouse (or patient-spouse) but to protect the innocent one. These landmark judgments of the 1960s mark the turning point in the jurisprudence of divorce laws globally. Protection of innocent party was preferred over punishment of the party at fault, especially in the matters of providential faults.
Why our laws are incompetent to achieve the actual objective of divorce laws even after sixty years? Why are our legislators still indifferent towards the grievance of the innocent party? Why is ‘incurable venereal disease simpliciter’ not a ground of divorce for a Parsi spouse? Moreover, what is there to protect if the patient spouse has infected the innocent spouse?
In Shakuntala v. Om Prakash, Justice Leila Seth observed that a normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. However, when a person is suffering from any STD, it is medically advisable to avoid sexual intercourse in order to prevent the transmission of the disease. In such a case, it is hardly possible for an innocent spouse to enjoy the normal course of the conjugal life. Hence, it is blatant injustice to the innocent spouse to disallow him or her to seek divorce on the ground that the “respondent is suffering from incurable venereal disease”. Therefore, it is a pressing need to abolish the grossly unreasonable condition of ‘Contract the disease first’ attached to the provision, and allow the presence of incurable venereal disease ‘simpliciter’ as ground for divorce.
An unreasonable time span under Christian’s Divorce Act, 1869-2001
As discussed above, a Christian spouse can seek a decree of divorce only when the respondent spouse is suffering from venereal disease, for a period of not less than two years immediately preceding the presentation of petition. It means that an innocent party has to qualify the criterion enumerated in the provision, by waiting for two years, in order to get the decree of divorce. What is the reason to bind the innocent spouse in marital bond with someone suffering from an ‘incurable’ venereal disease?
There are STDs that are incurable like Human papillomavirus (HPV), Human Immunodeficiency Virus (HIV) & Herps Simplex Virus (HSV). HPV can even lead to genital, cervical or oral cancer, and HIV to AIDS. Consequently, it will neither be possible for a patient-spouse to fulfill his or her marital obligations, nor for an innocent spouse to live a normal conjugal life. Thus, the question regarding the logical basis for not allowing the innocent spouse from getting his or her marriage dissolved when the other spouse has been suffering from an incurable STD is significant. Such disease, since incurable, would not cure even after the stipulated time of two years. This would only add mental agony, and result in suppression of his or her liberty.
Hence, in cases of incurable venereal diseases, the time span of two years is arbitrary. Therefore, scrapping of this mandatory two-year time span is quintessential in ensuring the removal of baseless delay in furtherance of the freedom of innocent spouse from the unsustainable matrimonial bond.
Poorly drafted legislations with numerous inefficiencies, inadequate consultation and insufficient examination are matter of fact in India, consequently, hindering the due course of justice. Therefore, it becomes a duty of the legislators to take cognizance of these shortcomings, and bring the required reforms in these matrimonial legislations without a further ado, so that law can achieve its actual objective. In this pursuit, the authors suggest amendments to the respective legislations:
- All the divorce laws, whether personal or secular, to include ‘curability’ factor, and thus avoid injustice to the spouses suffering with curable STDs. Consecutively, in such matters, a fixed time span is to be ascertained on scientific and empirical lines before which the decree of divorce cannot be sought.
- Parsi Marriage & Divorce Act is to be amended to remove the ‘contract the disease first’ which is a condition precedent for the grant of divorce decrees. This will protect the innocent spouse from medical consequences.
- Christian’s Divorce Act to delete the mandatory two year time-span at least in cases concerning ‘incurable’ venereal diseases to protect the freedom of innocent spouses from matrimonial bonds of unsustainable character.
- All divorce laws to include ‘incurable venereal disease simpliciter’ as a ground for the dissolution of marriages.
The suggestions made above, if incorporated, will lead us a way forward towards the ends of Justice.
Shubham Saxena and Aditya Puri are second-year law students (B.A LLB) pursuing their graduation from Dharmashastra National Law University, Jabalpur, Madhya Pradesh.