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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 44
November 17, 2007

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Whether HIV should be a valid ground for divorce

Zahidul Islam

AN Indian court holding that HIV is a valid ground for divorce caused a huge controversy recently. The Indian society seems still divided on the issue of how the HIV infected couple should be dealt with legally. The Indian government figures the number of people in India with HIV/AIDS at between two million and 3.1 million, while UN Aids estimates there were 5.7 million cases in 2006. Hence, this is a grave issue for India. Though I don't have any data near to hand this moment as to how many people are officially figured as AIDS patients in Bangladesh, certainly the number is increasing day by day. So, it is an equally important issue for Bangladesh. Hence, the aim of this article is to stimulate the public thought over the issue by describing an Indian example.

Although I am yet to collect the controversial judgment that I have mentioned above, from the different Indian national dailies I can summarise the fact that a couple from Kerala had married in October 2000 and moved to the capital. Five months after their marriage, the wife was found to be HIV positive in a medical test conducted during her pregnancy. Tests showed the husband hadn't contracted the dreaded virus. The husband could not accept it, and moved to the court for granting him a divorce order. Following a long way of court proceedings, judgment came out on 1st November 2007, creating huge controversy among citizenry. What exactly was the decision of the court of law?

In a single sentence the decision was that a person whose spouse is found to be HIV positive is justified in seeking a divorce. Delivering the judgment, additional district Judge Rajnish Bhatnagar said that a person cannot live 'happily' with a spouse who has AIDS or is HIV positive. The judge thus granted divorce to a man whose wife was HIV positive, saying her ailment had prevented him from leading a 'happy married life' as the disease is sexually communicable.

The district court also held the petitioner's wife guilty of not disclosing her HIV positive state before marriage. According to a Supreme Court ruling in 1998, people who are HIV-positive must inform future spouses.

The court also observed that sex is an integral part of marriage and in this particular case the husband was deprived of that enjoyment. The HIV status of the wife no doubt resulted in non-enjoyment of sexual intercourse between the parties and marriage without sex is an anathema.

However, reaction to the decision is mixed. While the majority of Indian general people seem to have welcomed the decision, AIDS activists have expressed dismay over the negative impact of the judgment. Though they have termed the decision to seek divorce as a matter of personal choice, they are concerned about the negative impact that the judgment might incur on society's perceptions of HIV positive people.

While commenting on it, Dushyant Meher, and AIDS activist and AIDS programme coordinator of Salaam Balak Trust, said that 'this is a conflict between the rights of an HIV positive person and a healthy person. In this case, the court has given precedence to the rights of the healthy person'. He added that it also needed to be understood that 'the woman too has a right to family life'.

Parenthetically, I would like to mention another comment by an AIDS activist Anjali Gopalan, who pointed out in almost all cases where the man is HIV positive and the woman is not, the woman never seeks divorce. In response to the comment, some newspaper readers opined that here is no problem with law or court. If any wife seeks divorce from HIV positive husband, it is expected that the court will in the same way grant the wife the divorce permission.

However, the central argument of the AIDS activists is that HIV/AIDS patients are particularly vulnerable members of our society. The vast majority of people of our society are still unknowledgeable about what is AIDS, and how it is transmitted. Majority of them think AIDS is just a sexually transmitted disease, which is just a result of indisciplined, unusual and irreligious sexual practices. But this is a fallacy.

Unfortunately, this misconception or fallacy is dominant in our society. Still the people with HIV/AIDS are tested without their consent, their confidentiality is breached and they are discriminated against in providing medical treatment, in provision of services like employment etc. In the like way, in the society they lose their respect; they are avoided, if not boycotted.
When this is the scenario, the judgment treating HIV as a ground of divorce will, on the one hand, help decline their social position, on the other hand, weaken their psychological strength. According to these AIDS activists, we must understand that HID/AIDS is not a crime for which one should get punishment, but it is a dreadful disease for which one needs proper treatment and social support, and judiciary should be concerned about their human rights.

While this is the argument of the AIDS activists disagreeing with the judgment, the legal basis of the judgment is easily understandable. 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.

But at the same time, it is also true that it is neither just a matter of law nor a personal affair between husband and wife; it relates public health, society, religion and morality as well. The issue gives birth to many questions, such as, does the HIV positive patient who was once divorced on this ground have right to remarry? Or does an AIDS patient have legal right to marry when the disease is likely to affect his/her spouse? Does she have right to give birth to children, when the baby is like to be affected? Should there be a provision of producing AIDS certificate while entering into a marriage contract? Is it practicable in the socio-economic conditions in Bangladesh? Should there be a mandatory provision that the Bangladeshi people employed in foreign countries shall undergo HIV test when they are getting married or reuniting their families at home? Is it morally correct to do so? Or will it violate their human rights or right to privacy? Should their individual human rights be protected, or should the overwhelming public health interest be prioritised?

It is therefore a grave public concern that warrants a huge public debate and adoption of a public policy. If the issue of separation or divorce on the ground of HIV/AIDS is yet to visit the court rooms in Bangladesh, certainly it will do it soon. So, we must think of it now so that we can adopt an all agreed prudent policy that will ensure human rights of the HIV patients as well as public health.

The writer is an advocate of the Supreme Court of Bangladesh, currently with the Centre for the Study of Law and Governance, JNU, New Delhi. He can be reached at: zahid.bangladesh@gmail.com


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