Swarajya Lakshmi Vs. G. G. Padma Rao
[1973] INSC 189 (19 October 1973)
MUKHERJEA, B.K.
MUKHERJEA, B.K.
MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 165 1974 SCR (2) 97 1974
SCC (1) 58
ACT:
Hindu Marriage Act (25 of 1955), s.
13(i)(iv)-Virulent and incurable form of leprosy. what is-Relevancy of motives
of spouses of their parents.
HEADNOTE:
The appellant was suffering from the
lepromatous form of leprosy, and the respondent" husband, filed a petition
under s. 13(1)(iv) of the Hindu Marriage Act, 1955, for the dissolution of the
marriage on the ground that the appellant had, for a period of not less than 3
years immediately preceding the presentation of the petition, been suffering
from a virulent end incurable form of leprosy. The High Court, in appeal,
granted the decree.
Dismissing the appeal to this Court,
HELD: The form leprosy from which the
appellant was suffering was both virulent and incurable and it was a fit case
for granting the decree. [105E-F) (1)The term virulent is not a medical term
The decisions of the Privy, Council and the different High Courts in India
where the word virulent' had been used for interpreting the Hindu Law on the
subject of exclusion from inheritance have used it to describe leprosy of the
most serious and aggravated type. The emphasis in the Hindu religious and legal
texts was on the competence of a man to perform his social and religious
obligations. No word had been used in those texts which could be referred to as
the corresponding Sanskrit word for 'virulent. Therefore, those decisions do
not give any sure and reliable guidance for interpreting the word 'virulent in
the section. [100E; 101E-F] Rangayya Chetti v. Thanikachalla Mudali & Ors..
I.I.R. 19 Mad. 74, Ananta v. Ramabai. I.L.R. 1 Born. 554, Rantabai v. Harizabai,
I.L.R. 48. Bom. 363, (P.C.) Kayarana Pathan v. Subbaraya Thavan, I.L.R. 38 Mad.
250, Karali Charan Pal v. Ashutosh Nandi, I.L.R. 50 Cal. 604, referred to.
(2)'Virulent' according to the dictionary
means 'malignant and infectious' Almost all medical authorities recognise
lepromatous leprosy as malignant and contagious. [102B-C] , (3)(a) The disease
can also be described a* an incurable form of leprosy. Sulphone treatment which
has made undoubtedly a great advance on the previous methods of treatment of
leprosy does not guarantee complete cure.
There are also other efficacious drugs but
even so experts do not yet consider that, with all the advances in
physiotherapy, surgery or orthopedic surgery, It is possible either to cure the
disease completely to correct the deformities and mutilations that are often
produced by the disease. [ 105A-B, C-E] (b)Further sulphone drugs were
discovers about 1941 and the Legislature must be presumed to have known about
their effect on leprosy when the Hindu Marriage Act, 1955, was passed. If it be
true that all types of leprosy are curable by sulphone drugs the legislature would
not have provided for the grant of divorce on the ground of incurable leprosy.
[105B-C] (4) It is the true that the social
approach to leprosy should be that one should take a very humane and balanced
outlook and accept leprosy as simply another disorder that requires medical
attention. But that does not provide any justification for compelling a husband
to live with a wife who is suffering from an aggravated form of leprosy and who
ran communicate it to him and his children almost any moment in their daily
life even though the legislature by statute has given the husband a way of
relief. The only consideration being the welfare of the spouses and of the
children, if any, of the marriage, the court cannot take into account while
deciding the question the motives of the spouses for applying for divorce or of
their parents in arranging the marriage. [106A-B, C-E] -L447SCI/74.
98
CIVIL APPELLATE JURISDICTION: Civil appeal
No. 2248 of 1970.
Appeal by special leave from the judgement
'and Order dated the 2nd July, 1969, of the Andhra Pradesh High Court at
Hyderabad in appeal against order No. 224 of 1966.
Y. S. chitle K. Rajendra Choudhury and Veena
Devi, for the appellant.
R. Vasudev Pillai and P. Kesava Pillai, for
the respondent.
The Judgment of the Court was delivered by
MUKHERJEA, J.--This appeal by special leave is directed against the judgment
and order dated July 22, 1969 of the High Court of Judicature, Andhra Pradesh
at Hyderabad in connection with a petition filed by respondent Dr. G. G.Padma
Rao against the appellant Swarajya Lakshmi under, Sec. 13(1)(iv) of the Hindu
Marriage Act, 1955 for the dissolution of the marriage between them by a decree
of divorce on the ground that the appellant had for a period of not less than
three years immediately preceding the presentation of the petition been
suffering from a virulent and incurable form of leprosy. The appellant and the
respondent were married on June 17, 1963. The appellant was then 20 and the
respondent, her husband, was 28 years of age. The appellant, we are told, was
taken away by her parents of New Delhi only two, days after the, marriage she
returned to Hyderabad to live with her husband only towards the end of August
1963. Almost immediately thereafter in the month of September her 'husband
discovered that she was suffering both from Leporsy and Tuberculosis. He being
a 'doctor started treating the wife immediately. Not content with his own
treatment he consulted also two experts namely Dr. C. V. Ethirajuju and Dr.
Shanti Narayan Mathur. At one point of time the respondent seriously
contemplated admitting the appellant to a leper home, but the appellant was
taken away by her father to New Delhi in May 1964 as she was then expecting a
child, On June 4, 1965 the respondent filed a petition under the Hindu Marriage
Act (hereinafter referred to as the said Act) for, dissolution of his marriage
with the appellant. At the time of Presenting this petition he made an
application under Sec. 14(1) of the said Act before the City Civil Court at
Hyderabad for permission to present the petition before three years had elapsed
from the date of the marriage on the ground that the case was one of
exceptional hardship to the respondent. The permission was granted and the
petition was thereafter beard on evidence. On February 22, 1966 the, Second
Additional. Chief Judge, City Civil Court, Hyderabad who heard the Petition
passed an order by which he held (a) that Swarajya Lakshmi, the appellant, had
been suffering from an incurable and virulent form of leprosy for a period not
less than three years immediately preceding the presentation of the petition
but (b) that the petition was, premature on the ground that the parties to the
petition had not been husband and wife for a period of three years. The learned
Second Additional Chief Judge dismissed the petition on these findings. The
respondent thereupon went on appeal to the High Court of Andhra Pradesh. A
Division Bench beard that appeal.
99 By an order dated July 22, 1969 the
Division Bench allowed the appeal, set aside the order of the court below and
granted a decree for divorce in favour of the respondent under Sec. 13 (1) (iv)
of the said Act. From this judgment, appellant Swarajya Lakshmi has now come by
special leave on appeal to this Court. The main controversy between the parties
before us turned round the question : Was the prosy of Swarajya Lakshmi of an
incurable and virulent form ? Both parties seem to be agreed at Swarajya
Lakshmi was suffering from the lepromatous form of leprosy. The respondent
contends that this was an incurable and virulent form of leprosy while it was
contended on behalf of the appellant that the leprosy she was suffering from
was curable and. in fact she was on the way to recovery when the petition for
dissolution of marriage was presented. Both the contesting parties examined
doctors in support of their respective contentions. The doctors agreed that
"virulent" is not really a medical term. Apart from this the medical
evidence on record is not very helpful in the sense that they cancel each
other. But leprosy is such a well-known disease and there are such well-known
medical experts on this subject who have recorded their views in print in a
fairly convincing manner, that it is not impossible to come to a conclusion
regarding the question whether the appellant's leprosy was of the incurable and
virulent type.
Before considering the medical authorities on
the subject we should consider the scope and intent of the provisions of the Hindu
Marriage Act under which leprosy may sometimes be a good ground of divorce.
Sec. 1 3 (1 ) of the said Act is in the following terms "13. (1) Any
marriage solemnised, 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).......
(ii)..........
(iii).........
(iv)has, for a period of not less than three
years immediately preceding the presentation of the petition, been suffering
from a virulent and incurable form of leprosy; or In construing these
provisions one has to remember that divorce is not generally favored. or
encourage by courts and is permitted only for very serious and grave reasons.
This will become obvious if we compare the provisions set out above with the
corresponding provisions for judicial separation. Sec. 10 ,of the Hindu
Marriage Act permits judicial separation on ground of leprosy but the
conditions are f ar less stringent. Sec. 10(1) of the said Act runs as follows
:"10. (1) Either party to a marriage, whether solemnized before or after
the commencement of this Act, may 100 present a petition to the district court
praying for a decree for judicial separation on the ground that the other party(a)..............
(b)..............
(c) has, for a period of not loss than one,
year immediately preceding the presentation of the petition, been suffering
from a virulent form of leprosy; or ......................
It is significant that judicial separation is
allowed if other party to a marriage has been suffering from a virulent form of
leprosy for a period of at least one year before the presentation of the
petition. In order, however, to be entitled to a decree of divorce a party has
to prove that his spouse has been suffering from a form of leprosy which is not
only virulent but also incurable and further that the spouse concerned has been
suffering from this ailment for a period of at least three years before the
presentation of the petition. Clearly, enough, the conditions under which
divorce is to be allowed are far more stringent than the conditions under which
judicial separation may be granted.
Both parties agree that "virulent"
in this context is not a medical term. Indeed, the medical evidence on record
also makes the same assertion. What, then, is the meaning of the word
'virulent'? A suggestion was made to us that the word 'virulent' is a relic of
those decisions in Hindu law which speak of leprosy as a disqualification
entailing forfeiture of property rights of the person afflicted by that disease
when "it appears in a virulent and aggravated form". We were asked to
give the same meaning to this word in the present context as bad been given in
these Hindu Law decisions. In Rangayya Chetti V. Thanikachalla Muddi &
Ors.(1) the learned Judge, of the Madras High Court seems' to have treated the
word 'virulent' as descriptive of the disease when it spreads quickly and
extensively over the patient's body. Dealing with leprosy in the same context
as furnishing a ground for exclusion from inheritance the Bombay High Court in
Ananta v. Ramabai(2) says that "the leprosy to disqualify must be of the
sanious or ulcerous kind, which was, we think the virulent or aggravated type
of leprosy . This meaning is given by the learned Judge on the basis of the
ancient Hindu authorities as interpreted by the Bombay and Madras High Courts
in certain cases. In the case of Ramabai v. Harnabai the Privy Council while
dealing with the issue as to whether a Hindu governed by the' Mitakshara was
excluded by reason of leprosy from the position of a joint owner of property of
his joint family on the ground of leprosy held that if the disease is of a type
which is not very apparent except to minute inspection it would not exclude the
person concerned from performing his social and religious duties in combination
with others and would not therefore be a disqualification. The Privy Council
(1) I.L.R. 19 Mad. 74. (2) I.L.R. I Bom. 554.
(3) I.L.R. 48 Bom. 363.
101 cites with approval the following
observation of Benson and Sundara Ayyar JJ. in Kayarchana Pathan v. Subbaraya
Thevan :(1) "Deformity and unfitness for social intercourse arising from
the virulent and disgusting nature of the disease would appear to be what has
been accepted in both the texts and the decisions as the most satisfactory
test". From this it is not difficult to infer that according to the
learned Judges any leprosy that led to deformity and unfitness for social
intercourse could be considered virulent. In Karali Charan Pal v. Ashutosh
Nandi(2) the Calcutta High Court in considering the question as to when leprosy
under the Hindu law would be a ground of exclusion from inheritance held that
it must be of the sanious or ulcerous and not of the anesthetic type.
It was contended on behalf of the appellant
that we should follow these decisions in interpreting the word 'virulent' in
connection with leprosy. We cannot, however, agree to accept this suggestion.
'Virulence' as a ground for exclusion from inheritance is treated from an
entirely different angle in the Hindu religious and legal texts. The general
emphasis in those contexts was of the competence of a man to perform his social
and religious obligations and no word has been used in those texts which could
be referred to as the corresponding Sanskrit word for 'virulent'. The decisions
of the different High Courts and the Privy Council where the word 'virulent'
has been used for interpreting the Hindu law on the subject have used it to
describe the leprosy of the most serious and aggravated type. This does not
therefore give any sure and reliable guide in interpreting the word ,virulent'.
Since the word is not used by medical experts in describing any particular type
of leprosy we have to find the meaning of the word from the dictionaries.
The meaning of the word 'virulent' appears in
different dictionaries in the following manner :Chambers Twentieth Century
Dictionary Virulent : highly poisonous 'or malignant:
venomous: acrimonious.
Webster's Seventh New Collegiate Dictionary:
Virulent: 1.a: marked by a rapid, severe, and
malignant course.
b:able to overcome bodily defensive mechanisms;
2. extremely poisonous or venomous:
noxious;
3. full of malice : malignant;
4. objectionably harsh or strong.
The Shorter Oxford English Dictionary
Virulent 1. a : Of wounds or ulcers :
characterised by the presence of corrupt or poisonous
matter.
b: Of diseases, etc.: Extremely malignant or
violent.
(1) I.L.R. 38 Mad. 250. (2) I.L.R. 50 Cal.
604.
102
2. Of serpents, material substances, plants,
etc.: Possessing venomous or strongly poisonous qualities; extremely noxious.
3. Violently bitter, spiteful or malignant;
full of acrimony or enmity.
Virulent' therefore according to the
dictionary meaning stands for malignant and infectious.
We shall now proceed to consider whether
lepromatous leprosy which is the type from which the appellant admittedly
suffers is ,virulent'. That lepromatous leprosy is malignant and contagious
seems to be recognised by almost all medical authorities. We append below some
of the observations of the medical authorities on this aspect of the
lepromatous type of leprosy.
I. PRACTICE OF DERMATOLOGY
by Dr. P. N. Bebl (2nd Edition) At page 232
Leprosy is apchronic, infectious disease caused by Mycobacterium leprae.
At pages. 232-233 Prolonged and close contact
is ideal for its transmission. Transmission by short and intimate contacts has
also been reported.
Exposures to lepromatous cases results in 4
to 1 1 times more effective transmission as compared with exposures to
non-lepromatous cases.
At page 236 LEPROMATOUS LEPROSY (L). In this
type, the patient has low resistance and Mycobacterium leprae multiply in
atmnomical numbers.
A t page 244 :
The lepromatous form is malignant and
contagious; there is no tendency to selfarrest or regression.
II. LEPROSY IN THEORY AND PRACTICE
by R. C. Cochrane and. T. Frank Davey (2nd
Edition) At page 222 open cases of leprosy with positive skin and/or nasal
mucosal biosies, that are infective, and particularly the lepromatous form
which contains the largest numbers of micro-organisms in the skin.
103 At page 76 Based on the number of
multiple-case families, one must conclude that leprosy is as contagious or more
contagious than. is, poliomyelities.
contagious and omit any reference to the
degree of communicability until more factual information is availableIII.
MANSON'S TROPICAL DISEASES by Sir Philip H. Manson-Bahr (Sixteenth Ed.) A t
page 490 LEPROMATOUS LEPROSY.-This is the type seen in persons with a
negligible resistance, and leprosy bacilli are widely disseminated throughout
the skin, nerves and reticuloendothelial system.
At page 505 PROGNOSIS.-leprosy may sometimes
be a slight passing ailment, or may become the most repulsive loathsome disease
known to man. The two important factors are concentration and distribution of
bacilli in the body and resistance. Prognosis is more favorable in the
tuberculoid than in the lepromatous type and prognosis in he indeterminate and
dimorphous groups is intermediate between these two.
THE DANGER OF CONTACT.-The factors which
predispose to the danger of contact are
closeness and duration, the infectivity of the case, combined with the age and
general health of the person exposed to contagion.
IV. NOTES ON LEPROSY by Dharmendra (Second
Edition) At page 29 LEPROMATOUS LEPROSY: This is the severe malign form of the
disease seen in persons with little or no resistance to infection.
We shall now deal with the next and also the
more important question as to whether lepromatous leprosy is incredible.
The medical witnesses in this case have given
their views on this subject. We have already stated why we prefer the views of
the more well-known experts of leprosy as we find them in authoritative books
on leprosy.
1. MANSON'S TROPICAL DISEASES by Sir Philip
H. Mancon-Babr (Sixteenth Edition) At page 506 In the lopromatous type one
should speak of arrest rather than cure, and it may take 3-15 years to rid the
skin of bacilli; sulphones should then be continued at half the maximal dosage
for life.
2. PRICE'S TEXT-BOOK OF THE PRACTICE OF
MEDICINE by Donald Hunter (Ninth Edition) At
page 93 Sulphone treatment must be continued for months, if possible for some
years. Some authorities believe it should go on at intervals for life. It is
not yet possible to say whether cure results from sulphone therapy.
Patients should be free from Myco. leprae for
at least two years before discharge-, even then it is not possible to say
whether the condition is really cured or merely arrested, for leprosy is
notoriously a disease of remissions.
3. DISEASE OF THE SKIN by Richard L. Sutton
(Eleventh Edition) At page 364 PROGNOSIS. it could appear that no case of
leprosy recovers spontaneously or as a result of treatment.
4. LEPROSY IN THEORY AND PRACTICE
by R. K. Cochrane and T. Frank Davey (2nd
Edition) At page 355 :
Although the prognosis of patients on
sulphone therapy is undoubtedly good, a permanent cure cannot be certain in any
particular case and it may be necessary, as a precaution, for the patient to
take the drug for the rest of his life. The failures that do occur with
sulphone treatment are usually due to relapses after cessation of treatment or
to exacerbations during treatment.
Considerable emphasis was laid at the time of
arguments by the appellant's counsel on the great advances made by sulphone
treatment. It was contended that sulphone treatment has been so revolutionary
that leprosy should not any longer be considered to be an 105 incurable
disease. Our study of the various authorities on the subject does not support
this view. It is true that sulphone is undoubtedly a great advance on the
previous methods of treatment of leprosy but even sulphone does not guarantee
complete cure. All authorities agree that the sequelae remain even after the
most prolonged treatment with sulphone drugs. Besides it is to be remembered
that sulphone drugs were discovered about 1941 and they were very well-known
all over the world at the time when the Hindu Marriage Act, 1955 was passed.
The-legislators must be presumed to have known the effect of sulphones on
leprosy.
If it be true that sulphone drugs have made
leprosy of all types curable there would be no point in the legislature making
a provision in the Hindu Marriage Act which will entitle a spouse to a decree
of divorce if the other party to the marriage would be found suffering from
incurable leprosy.
In this view of the matter in our opinion the
disease from which the appellant suffers can be described as an incurable form
of leprosy. It is likely that with the future advances in the treatment of
leprosy one day even this form of leprosy will be amenable to cure. We may, in
this connection mention that even after the sulphone therapy a drug known as
CIBA-1906 was found out which in preliminary stagesappears to be equal in
efficacy to the sulphones but far less toxic. Even so experts do not yet
consider that with all the advances in physiotherapy, surgery or orthopedic surgery
it is possible either to cure the disease completely or to correct the
deformities and mutilations that are often produced by the, disease. All that
the text books seem to suggest is this that "eradication of the disease
can, and eventually will, occur through effective;
treatment of the individual patient and
segregation to prevent dissociation of the disease." In view of our
findings that the form of leprosy from which the appellant suffers was both
virulent and incurable, we have come to the sad but unavoidable conclusion that
this is a fit case in which the respondent should be granted a decree of
divorce under the said ct.
Considerable arguments were made from the bar
at the time of the hearing of the appeal to impress on our mind the great injustice
done to the respondent by the appellant's father who, we were told, had
deliberately married the appellant to the respondent at a point of time when he
knew she was suffering from a bad type of leprosy, by suppressing that fact
from the respondent. While we have ourselves considerable suspicions in our
mind that this perhaps true, we have taken treat care not to allow this fact to
have any weight in the matter of deciding this appeal. In the system of
marriage prevailing in the Hindu Society, so long as marriages continue. to be
arranged by the parents, it will be iniquitous to allow the sins of the parents
who arrange the marriage to visit on their children who marry. Marriage
according to Hindu Law, is a sacrament and a holy union for the performance of
religious duties. There can be no question of either endangering or rupturing
that relation on account of the conduct of the parents. That is why marriage
even though brought about during the minority of either party thereto does not
106 make the marriage invalid. Divorce and dissolution of marriage are concepts
which were alien to Hindu Law before the statute stepped in to modify the
traditional law. From the moment a marriage has been completed the relation of
the husband and wife has to be considered only from the point of view of the
welfare of the husband and wife and, also, we must add, of the children, if
any, of the marriage. From this point of view, we have refused to be prejudiced
by the consideration of what either the appellant or the appellant's father may
have been motivated by. The story that the respondent who was a young doctor of
indifferent means was duped and beguned into a marriage with the appellant by
considerations of the position, authority, and affluence of the father-in-law
is one which, even it be true, has nothing to do with the question whether
divorce should be given under the Hindu Marriage Act. Likewise, the suggestions
made on behalf of the appellant that the respondent had been attempting to
extort money from her father, also have no bearing on the question we have to
decide here.
We should like to make another observation.
Sociologists insist and they do so very correctly that we should not allow our
minds to be swayed by feelings of emotional loathing and revulsion with which
leprosy patients have been treated throughout human history in all countries
throughout the world and that we should take up a humane and balanced outlook
and accept leprosy "as simply another disorder that requires medical
attention". We have no doubt that this is absolutely correct about what
should be the social approach to leprosy but to our mind this should not
provide any justification for compelling a husband to live with a wife who is
suffering from an aggravated form of leprosy and who can give him and his
children leprosy almost any moment in their daily life, even though the
legislature by a statute has given the husband a way of relief. We have no
doubt in our minds that the law-makers do not treat the subject of divorce
lightly and must have taken into consideration the consequences of one spouse
being compelled to live intimately with another spouse who suffers from leprosy
when they provided for a way out for the former.
In the light of these considerations we
dismiss the appeal and uphold the Judgment of the High Court. In the facts and
circumstances of the case we make no order as to costs.
V.P.S. Appeal dismissed.
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