Report No. 59
2.8. Section 13(i)(v)-Venereal disease.-
Under section 13(1)(v) of the Hindu Marriage Act, (so far as is material), any marriage may be dissolved by a decree of divorce on the ground that the other party-"(v) has for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form." There is no restriction that the disease should not have been contracted from the petitioner,-restriction explicitly provided for in the corresponding provision relating to judicial separation1. The proposal is to add the words "disease not having been contracted from the petitioner" in section 13(1)(v). It is pointed out that these words occur in section 10(1)(d) of the Hindu Marriage Act dealing with venereal disease as a ground for a judicial separation.
1. Section 10(1)(d), H.M.A.
2.9. While we agree that there should be no disparity between venereal disease as a ground for judicial separation and the same as a ground for divorce so far as the source of the disease is concerned, it appears to us that it would simplify the statement of the law if the condition that the venereal disease should not have been communicated by the petitioner, is removed from section 10(1)(d). We take this view for several reasons In the first place, it wrong to throw the burden on the petitioner to prove the negative, and, prima facie, the fact that the respondent has been suffering from venereal disease for the specified period, should be enough to entitle him or her to divorce.
Secondly, it is not, medically speaking, always easy to prove that where two spouses are found to be suffering from this disease, one got infected prior to the other. The party suing should not be burdened with the onerous task of proving this, in the first instance. No doubt, the provisions of section 23(1)(a) of the Hindu Marriage Act will still continue to apply even after the above amendment, so that if the disease was contracted from the petitioner, the respondent can still take the plea that the petitioner is taking advantage of his or her "own wrong". That, however is a fair and just principle applicable to all cases of divorce.
