A, c, and others case
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS JURISDICTION UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA
WRIT PETITION NO. 1322 OF 1999
Mr. Anand Grover and Mr. C.U.Singh i/by M/s V.V. Juris For the Petitioners.
Dr. D. Y. Chandrachud for Respondent No. 1 & 2.
Mr. R. V. Govilkar for Respondent Nos. 3 and 4.
1. In the above matter, we heard all the learned Counsel for various
parties at length. The Petitioner No. 1 who is a female and Petitioner No. 2 who is a male, both of whom have been diagnosed as HIV positive, are desirous of getting married and may like to get married in future. Both of them have filed this Writ Petition., seeking clarifications in the light of the Supreme Court judgment, in Mr. X v/s. Hospital z (1998) 8 SCC 296. Wherein the Supreme Court has held that the person’s right to get married is suspended, during the period when a person is HIV positive. Similarly, the Supreme Court has also held that if a person who suffers from HIV positive were to marry, he or she may be guilty of an offence punishable under Sections 269 and 270 of the Indian Penal Code.
2. The Learned Counsel for the Petitioners has broadly submitted as
under; Firstly, according to the learned Counsel for the Petitioners the right to marry is recognized as a basic human right. In this behalf he has referred to the various International Covenants which have recognised the right to marry and found a family as a fundamental human right. He has relied upon Article 16 of the Universal Declaration of Human Rights which states that the men and women of full age,
without any limitation due to race, nationality and religion have a right to marry and to found a family. The learned Counsel for the Petitioners has also relied upon Article 23 of the International Covenant on Civil and Political Rights which states that the family is the natural and fundamental group unit of Society and is entitled to protection by Society and the State. He submits that the right of men and women of marriageable age to marry and found a family shall be recognised. The learned Counsel for the Petitioners has also relied upon Article 8 of the European Convention on Human Rights and its Five Protocols which states that everyone has a right to respect for his private and family life, his home and his correspondence, and that there shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national security., public safety, the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of rights and freedoms of others. Further, the learned Counsel for the Petitioners has relied upon Article 12 of the European Convention on Human Rights and its Five Protocols which states that the men and women of marriageable age have a right to marry and to found a family according to the national law governing the exercise of their rights. He also referred to the United Kingdom Declaration of Rights of People with HIV and AIDS which states that all the citizens of the UK including people with HIV and AIDS are also accorded with the right to marry and found a family. Thereafter, the learned Counsel for the Petitioner has referred to the International Covenant on Economic. Social and Cultural Rights, of which Article 10 states that the widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of the Society, particularly for its establishment and while it is responsible for the care and education of dependent children.
3. It is the submission of the learned Counsel for the Petitioners that the
right to marry is recognised as a fundamental right. He submits that in various foreign Countries notably the United States of America has also recognised the right to marry as a constitutionally protected fundamental right. In this connection he referred to the various judgements of the U.S. Supreme Court viz. Loving V. Virginia 388 US 1 (1967), Skinner V. Oklahoma 316 US 535, Meyer V. Nebraska 262 US 390. Maynard V. Hill 125 US 190 (1888), Zablooki V. Radhail 434 US 374 (1978) and Turner V. Safely 482 US 78 (1987). He submits that in all these judgements the freedom to marry has long been recognised as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
4. The learned Counsel for the Petitioners has further submitted that the
right to marry has been recognised as a fundamental right by the Supreme Court of India under Article 19 and 21 of the Constitution of India. In this behalf he has referred to the various Supreme Court Judgements viz. Kharak Singh V/s. State of U.P. AIR 1963 SC 1295, Gobind V/s. State of Madhya Pradesh AIR 1975 SC 1378 and R. Rajagopal V/s. State of T.N. AIR 1995 SC 264, and contended that the
right to marry forms one of the constitutionally protected fundamental rights under Articles 19 and 21 of the Constitution of India.
5. It is the submission of the learned Counsel for the Petitioners that the
right to marry envisaged under Article 21 of the Constitution of India, can only be abridged or terminated by a valid law enacted by a Competent legislature. He has further submitted that this fundamental right to marry can only be abridged or suspended by a valid law or under Article 359 when an emergency is declared.
6. The learned Counsel for the Petitioners further submits that the various
matrimonial laws do not ban or prohibit marriage on account of a communicable venereal diseases. He further states that the HIV positive can be termed as a communicable venereal disease. He has made a reference of Sec. 13(I) (v) of the Hindu Marriage Act, 1955, Sec. 32 of the Paris Marriage Act, 1936, Sec. 2 (vi) of the Dissolution of Muslim Marriages Act, 1939 and Sec. 27 (f) of the Special Marriage Act, 1954 and submitted that the venereal disease is a ground for dissolution of marriage.
7. The learned Counsel for the Petitioners has submitted that the HIV
positive does not render the marriage void or voidable. In this behalf he has made a reference of Sec. 5 and 11 of the Hindu Marriage Act, 1955. Sec. 18 and 19 of the Indian Divorce Act, Sec. 3 of the Parsi Marriage Act, 1936. Muslim Personal Law, Sec. 4 and 24 of the Special Marriage Act. 1956, and contended that there cannot be a ban on a marriage with a HIV positive person or a person suffering from a communicable venereal disease.
8. The learned Counsel for the Petitioners has further submitted that the
non-disclosure of HIV positive status by a party would entitle the parties to the marriage a decree of nullity of marriage and render the marriage void or voidable by either of the spouse. In this behalf he has referred to Sec. 19 of the Indian Divorce Act. Sec. 12 of the Hindu Marriage Act, 1955 and Sec. 25 (iii) of the Special Marriage Act, 1956 and Sec. 5 of the Hindu Marriage Act. 1956.
9. According to the learned Counsel for the Petitioners, for a valid
marriage in law, there is an obligation on a person to disclose his/her HIV-positive status to his/her prospective spouse before marriage. He submitted that the discordant Couples (only one of the spouse is HIV-positive) can lead a happy married life and can resort to safe penetrative sex by consistent and correct use of condoms which would reduce the risk of HIV transmission from 0.01% to 0.001% or to practically zero. He further submits that the discordant couple can bear HIV-negative children. According to him where the wife is HIV-positive the risk of transmission of HIV from mother to child during the pregnancy is 33% and such a risk can be reduced to 2% by medical intervention. And where the husband is HIV-positive the sperm-washing technique may be used to make the sperms free of HIV. He further submits that the discordant couple may decide not to have any child of their own and may instead decide to adopt a child.
10. The learned Counsel for the Petitioners has further submitted that the
Supreme Court Judgment in Mr. X V/s. Hospital z. (1998) 8 SCC 296 does not apply in cases of marriage after full disclosure. He has also
submitted that the Supreme Court does not deal with marriage of an HIV positive person to another (positive or negative) after disclosure of HIV status and consent in that it is full, free and informed consent. He has further submitted that the Supreme Court Judgement referred to above does not apply to a Blood Bank.
11. The learned Counsel for the Petitioners has referred to Art. 21 of the
Constitution of India and has submitted that the right to privacy must encompass and protect the personal intimacies of home, family, the marriage, motherland, procreation and child rearing. He has submitted that a common law there is no right conferred on an unborn child. The unborn child is not considered to be a legal person and does not have any legal rights until "born alive”. Thereafter he has referred to Section 315 and 316 of the Indian Penal code and has submitted that causing death of the "quick" child is a criminal offence against the unborn child.
12. The learned Counsel for the Petitioners has further referred to Medical
Termination of Pregnancy Act, 1971. He has submitted that the termination of pregnancy can be lawful if it is done within12 weeks of the pregnancy on the opinion of one doctor, or between 12 and 20 weeks of the pregnancy on the opinion of two doctors that the continuance of pregnancy will involve a risk to the life of the pregnant women or that the continuance of pregnancy will be of grave injury to her physical or mental health or if there is a substantial risk that if the child were born it would suffer from such a physical and mental abnormalities as to be seriously disabled. He has further submitted that the risk of HIV transmission to the unborn child is about 33% and can be reduced substantially by appropriate and timely medical intervention.
13. The learned Counsel for the Petitioners has submitted that if a person
intentionally, unlawfully and negligently does any act whereby there is a substantial risk of transmitting a disease dangerous to life (like HIV) to another person, then such a person is said to be committing a criminal offence. He referred to Sec. 269 of the Indian Penal Code which provides that whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished. Thereafter, he referred to sec.270 of the Indian Penal Code which provides that whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished.
14. According to the learned counsel for the Petitioners the use of
condoms, or safer sex methods would amount to the exercise of reasonable care and precaution to guard against the injury of another, and would not amount to negligence. He has submitted that the consent is the primary factor. According to him, having consensual, protected sexual intercourse, after full disclosure of HIV positive status to the sexual partner, such an act of intercourse would not be a criminal offence amounting to hurt, grievous hurt, murder or assault. He has further submitted that in a consensual marital setting, wherein full disclosure of the HIV status of the infected partners made to the other, and the mode of transmission of the disease are known and explained
to the partner, the application of sections 269 and 270 of the Indian Penal Code would not be appropriate.
15. It is the submission of the learned Counsel for the Petitioners that, to
prohibit persons living with HIV positive to marry, and by criminalising the act of sexual intercourse (which would be protected/safer) would only drive the disease underground and people will not test themselves for HIV. According to learned Counsel what is required is a counselling protocol to be followed and persons infected and affected to be made aware of the ways of transmission of the disease and how to take precautions against the spread of the disease. He has further submitted that, in spite of counselling, if an HIV positive person has non-counselling unprotected sex with another, whereby the sexual partner is at a substantial risk of acquiring the disease, it would be an offence under the penal code and would cast a criminal liability on the wrong doer.
16. On the other hand, the learned Additional Solicitor General for India, on
behalf of the Union of India, has made his submissions as under. The learned Additional Solicitor General for India has submitted that so long as the person is not cured of the communicable venereal disease or impotence, the right to marry cannot be enforced through a Court of Law and shall be treated to be a suspended right, as has been categorically held by the Supreme Court in the case of Mr.X V/s. Hospital Z (1998) 8 SCC 296. The learned Additional Solicitor General for India further referred to Sections 269 and 270 of the Indian Penal Code and has submitted that these sections impose a duty upon the Appellant (an HIV positive person) not to marry as the marriage would have the effect of spreading the infection of his own disease, which obviously is dangerous to life, of the women whom he marries, apart from being an offence. He has submitted that, in the aforesaid judgment, the Honourable Supreme Court has held that the sex with them or the possibility thereof has to be avoided as otherwise they would infect and communicate the dreadful disease to others.
17. The learned Additional Solicitor General has further submitted that the
law laid down by the Honourable Supreme Court is binding under Article 141 of the Constitution of India, by which the Honourable Supreme Court is conferred with a sufficiently wide jurisdiction to make such orders as are necessary for doing complete justice in any case or matter pending before it. He has further submitted that the case of the first and the second Petitioner who are HIV positive is that if they were to find persons willing to marry them, the police may take action on the basis of a motivated complaint that may possibly be lodged by some person. He fairly conceded that the right to marry may well be regarded as a part of the right to life under Article 21 of the Constitution of India because marriage and procreation are essential facets of the right to life, however, at the same time, the right of life is not absolute and the enjoyment of all components of that right is subject to procedure established by law. He has submitted that the Hindu Marriage Act and other cognate provisions of personal law impose restrictions upon the right to marry and regulate various aspects of marriage, and that these regulatory provisions are in furtherance of the undoubted regulatory
power of the State to regulate marriage and its incidence, and therefore no one can possess an unrestricted right to marry.
18. The learned Additional Solicitor General has referred to the well settled
principle of law that an order passed by the High Court even in the exercise of its inherent powers would constitute "Law" for the purpose of Article 21 of the Constitution as laid down by the Supreme Court in the case of Ratilal V/s. Assistant Collector of Customs AIR 1967 SC 1639. Similarly the learned Additional Solicitor General has submitted that the width and ambit of the power of the Supreme Court under Article 142 of the Constitution extends to laying down the binding guidelines or principle of law which would operate when there is no enacted legislation governing the area, as laid down by the Supreme Court in the case of Vineet Narain V/s. Union of India (1998) 1 SCC 226.
19. According to the learned Additional Solicitor General for India, the
proposition urged on behalf of the Petitioners that an HIV positive individual would have the right to marry subject only to disclosure of the HIV status to a prospective spouse, would be too broad to merit acceptance. According to him, such a consent as an attribute may have relevance to a society with high levels of literacy, education and one that is individualistic. He has submitted that in our Society the Court has to be mindful of that position of women in society and the peculiar disabilities faced by women, and that the regard will have to be had to the impact of such social circumstances like poverty, illiteracy and socio economic pressures which operate upon women. According to him the mere requirement of consent is not sufficient to protect against the exploitation of women. The sexual exploitation of women, occasioned due to the socio economic handicaps faced by women among other causes, makes women as a class extremely vulnerable to the transmission of HIV infection. He has submitted that the transmission of the HIV virus is not gender neutral and the law has to be cognisant of the special need to protect the rights of women, particularly the preservation of their health. According to him, it would not be adequate to allow an HIV positive person to say that "I told my prospective spouse that I am HIV positive", and that cannot constitute an end of his responsibility.
20. The learned Additional Solicitor General for India, has further submitted
that, the Court may have to take notice of the fact that women are increasingly becoming the focus of the transmission of AIDS, The groups of women in our Society have been faced with the danger of becoming carriers of the HIV virus, the infection being transferred from their own husbands, and that is likely to be particularly so in the case of groups of migrant men workers who contract the disease in large cities and thereafter pass it on to their spouses in the rural areas. Consequently, according to him, in considering the nature of the problem, due importance has to be given to the role and position of women in our Society. While referring to section 375 of the Penal Code which expressly lays down that the sexual intercourse by a man with his wife shall not constitute rape, he has submitted that the limitations of consent are apparent in the marital context from the existing
provisions of our law, and that being the position, it is clear that Section 375 does not contemplate any further consent apart from consent to marriage. According to him, this position existing in India is quite different in England as is clear from the judgment of the House of Lord in 1991 4 ALL ER 481. He has submitted that the aforesaid Section 375 of the Penal Code, as it stands, does not protect a married women from an unwanted assertion of sexual desire by the husband. He is of the opinion that the law must recognise the need to protect the women from and against the practice of unprotected sex, particularly in the context of the transmission of HIV virus. According to him, the Court, in the present case, is in the realm of policy wherein numerous rights of different segments of the population have to be balanced, and that the said exercise can appropriately be performed only by the legislature. He has submitted that the right to public health is itself a fundamental right under Article 21 of the Constitution of India, and that the conflicting rights are required to be balanced while taking into consideration the rights of HIV positive men V/s. the rights of women in general to public health; the right and duty of the State to protect the public health ; the right of the State in so far as potential life and the right of the unborn child is concerned. According to him, in this regard reference may be made to the provisions of Articles 39(e) and (f), 41,47 and 51A(e) of the Constitution of India. He is of the opinion that the resolution of these conflicting rights is not amenable to the power of judicial review, and that the Court may not possess adequate scientific data and other sociological material that would be necessary to arrive at any resolution of the matter.
21. The learned Additional Solicitor General has further submitted that it
would be too broad a proposition in Constitutional law for an individual to assert that he or she should have an unrestricted right to marry another though such individual is conscious of the fact that the consequence of the marriage may be the passing on of the HIV infection which one of the two proposing to join in wedlock suffers from. The necessary consequence of contracting the HIV virus is death, though the period taken for the illness to grow into a fully manifested disease may vary from case to case. He has made a reference of the case of Gian Kaur V/s. State of Punjab 1996 Vol 2 SCC 648, in which the Honourable Supreme Court has held that the positive right, the right to life, does not necessarily include a negative right not to live or to decide to end life. According to him, some of the observations of the Honourable Supreme Court in the aforesaid case, are relevant to the present case.
22. The learned Additional Solicitor General for India has further submitted
that, despite medical treatment, there is a substantial risk that a child born to a married couple one of whom is HIV positive, will be HIV positive. He has submitted that the State has a vital interest in potential life. In this regard he has made a reference of the judgments of the US Supreme Court in Roe V/s. Wade (410 US 113), and Webster V/s. Reproductive Health Services (492 US 490). He has also made a reference of the Hindu Succession Act, 1956 and the Medical Termination of Pregnancy Act, 1971 which recognise The position and
rights of the unborn child, and thus the State has the concern so far as the public health is concerned.
23. Lastly, the learned Additional Solicitor General for India, has submitted
that, at the present stage, particularly in view of the fact that the writ petition does not raise any substantial lis or dispute this Court may not lay down a definitive principle of law. He has stated that any clarification of the judgment of the Honourable Supreme Court in (1998) 8 SCC 296 Mr. X V/s. Hospital Z, must come from the Honourable Supreme Court, which, he believes, has been moved for clarification. According to him, the issue is not a simple issue of "consent" or " disclosure". He is of the opinion that any observation by the Court will affect the sexual and reproductive health as well as the life of vast segments of the population. He has, submitted that the Court should decline to enter into an area which is replete with thorny issues of policy which defy resolution on the basis of legal principle alone.
24. Ms. Flavia Agnes, the Intervenor in this case, has submitted that the
right to marry and right to life as envisaged under Article 21 of the Constitution of India, is subject to reasonable restrictions. She has submitted that the observation of the Honourable Supreme Court in Mr. X V/s. Hospital Z that while a person is afflicted with HIV/AIDS, can be construed as reasonable restrictions upon the right of marriage. She has stated that the law is already laid down that where the legislature has failed to introduce necessary legislations to protect the right of women and children, the courts have a duty to intervene and protect the right of vulnerable sections through judicial interventions. According to her, while the HIV/AIDS afflicted persons face discrimination at work place and within the health care system and also face social stigma, the men with HIV/AIDS afflications continue to enjoy a priviledged position vis-à-vis their wives in the Indian setting and neglect to exercise due care and caution to avoid risk to life and health of their wives and children. She is of the opinion that in order to control the spread of disease within the domestic sphere which remains a grossly neglected area of public health policy in India, there is a need of protective public health policies. She is of the opinion that this Court may declare that the communication of HIV/AIDS affliction through the negligence or callousness may be deemed as a matrimonial offence. According to her, in view of the alarming rate at which the disease has spread into the domestic sphere, this Court should issue a direction to all the agencies providing counselling and health care to HIV/AIDS patients that they are under a moral and legal obligations to reveal the HIV/AIDS status of their clients to the spouse and counsel the couple together about the implications of unprotected sex with such persons. She is of the opinion that, in the event the Court permits marriages between the afflicted persons, the scope of such a permission be narrowed down to two afflicted persons, and that the marriage between the unafflicted person and afflicted person may be permitted only after an application to this effect is made and the Court has the opportunity to ascertain the consent of the unafflicted spouse to such a marriage.
25. Mr. Govilkar, the learned Governed Government Pleader while
referring to Chapter XII of the Code of Criminal Procedure which relates to information to the Police and their powers to investigate, and while referring to Cognizable Offences under Sections 269 and 270 of the Indian Penal Code, has submitted that every information relating to commission of an offence will have to be recorded in writing under sec.154 of the Code of Criminal Procedure and that after the information is so recorded, investigation would start under Section 157. He has submitted that if the officer in charge of the Police Station has reason to suspect commission of an offence, he will be sending a report of the same to the concerned Magistrate, empowered to take cognizance of an offence upon the police report and may take further steps as are provided for under Section 157. He has further submitted that if it appears to the Officer in charge of the Police Station that no sufficient grounds exist for entering on an investigation , he shall not investigate the case. Thereafter, he has referred to Section 158 which provides for submission of a report to the learned Magistrate in a case the a Police Officer decides to investigate, and Section 159 under which the learned Magistrate may direct investigation if he thinks so fit. Thereafter the learned Government Pleader has referred to Section 169 which empowers that Officer in Charge of the Police Station to release any accused in his custody on execution of his bond, if upon investigation it appears that there is no sufficient evidence or reasonable ground of suspicion to justify forwarding of the accused to the Magistrate and may take a bond as provided in the said Section. He has submitted that, if upon investigation it appears to the Officer in Charge of the Police Station that there is sufficient evidence or ground, the accused shall be forwarded to the custody of the concerned Magistrate empowered to take cognizance of the offence upon a police report etc.
26. The learned Government Pleader, thereafter has referred to Section
173, which provide for submission of the report by a Police Officer on completion of investigation i.e. the charge sheet. The learned Government Pleader, while referring to the prayer of the Petitioners in the present case, has submitted that by making such a prayer, the petitioners seek to over-ride the procedure as provided for under the Criminal Procedure Code dealing with the complaints. He states that the Petitioners, in effect, seek to prevent the officers from taking cognizance of the complaint. According to him, the Petitioners are not entitled to make such a prayer, and that too in a writ petition thereby prohibiting or restraining the Police Officers from discharging their duties and responsibilities under the law. Thereafter he has submitted that the Petitioners are not also entitled to file any writ or pray for any relief which prevents the Police Officers from discharging their duties and obligations under the Act. He has stated that if any complaint is received, the Police Officers are duty bound to take steps as prescribed and cannot take any decision not to proceed at all at the threshold without entertaining the complaint. He has submitted that an offence under Section 269 and 270 of Indian Penal Code has no bearing to the matrimonial relation between the parties, and the
offences under the said sections can be in respect of the parties who have no relation whatsoever mush less the matrimonial relation. Thereafter, he has referred to the observation of the Honourable Supreme Court in the judgement reported in (1998) 8 Supreme Court Cases 296 in the case of M. X V/s. Hospital Z. The said observation reads as "if a person suffering from dreadful disease AIDS, Knowingly marries a woman and thereby transmits infection to that woman, he would be guilty of offences indicated in Sections 269 and 270 of the Indian Penal code.
27. The learned Government Pleader has submitted that in view of the
Honourable Supreme Court’s judgment. It would not be open for any authority to take any different view and/or to decide to or not to proceed any further in case a complaint is received that any person suffering from AIDS on marrying is likely to transmit the disease to the spouse. According to him a person knowing fully well that he is suffering from HIV/AIDS would be aware that the consequence would be highly injurious to the woman and despite such knowledge he does that act, then it will have to be treated as wrongful act without any legal justification, and therefore, the intention is an inference of law resulting from the doing of that act, marrying a non-affected person, and the consent of such a person is immaterial as far as the law is concerned. In this regard he has made a reference of some cases, viz. Per Lord Elleborough, CJ. In Dixan (1814) 3 M & S 11, 15; Hicklin (1868) LR 3 QB 360, 375; Martin (1881) 8 QBD 54, 58; Lovett (1839) 9 C & P 462.
28. Thereafter, the learned Government Pleader while referring to the
observations made in the case of Laxman Raghunath (1902) 4 Bombay Law Reporter 280, has submitted that if a person voluntarily does an act knowing at the time that in the natural course of events certain result would follow, it must be presumed that he intends to bring about that result. He has submitted that the further observations made by the Honourable Supreme Court in the said judgment of Mr. X V/s. Hospital Z, in paras 38, 41, 42, 44 and 45, may impose a duty on all concerned to see that the possibility of the persons affected by AIDS infecting others or communicating the dreadful disease to others by having sexual relations with others is eliminated as far as possible. According to him, as per the observations of the Honourable Supreme Court, the persons affected with AIDS are imposed with the duty of not to marry as the marriage would have the effect of spreading the infection of his own disease which is obviously dangerous to the life of the woman whom he marries, apart from being an offence. Ultimately he has submitted that the observations, conclusions and the directions of the Honourable Supreme Court are having a binding force on all the subordinate authorities so as to take steps to prevent the commission of such an offence. He is of the opinion that though the right to marry is a facet of Article 21 of the Constitution of India, the another facet of Article 21 prohibits, or at least does not recognise a right of any person to take a decision which will result in a decision not to live, and thus does not permit any person to give consent to marry a person suffering from AIDS, as it would result in a consequence of death, and the degree of such consequences taking place is very high. Therefore, he
has submitted that this Court may consider whether a person can be permitted to give the alleged full, free and well informed consents, so as to take any step, act or decision to marry a person suffering from AIDS.
29. The learned Counsel for the Petitioners, in rejoinder, has stressed on
the point of jurisdiction of this Court. He has submitted that the question before this Court is to interpret the decision of the Honourable Supreme Court in Mr. X V/s. Hospital Z, (1998) & SCC 296, and not to clarify it. It is submitted that the said decision in the case of Mr. X V/s. Hospital Z mentioned above, is binding on this Court. The learned Counsel for the Petitiners has stated that the Supreme Court under Article 142 of the Constitution of India has the power to lay down binding guidelines or principles of law which would operate when there is no enacted legislation governing the area, however, at the same time, the Supreme Court has no power to circumscribe the fundamental rights guaranteed under the Constitution of India. While relying upon the case of Prem Chand Garg V/s. Exise Commissioner, U.P. AIR 1963 SC 996, the learned Counsel for the Petitioners has submitted that an order which the Supreme Court can make under Article 142, must not only be consistent with the fundamental rights guaranteed under the Constitution, but also should be consistent with the substantive provisions of the relevant statutory laws. He has submitted that the judgment of the Supreme Court in Mr. X V/s. Hospital Z, with regard to the right to marry and found a family and bear children is not binding. According to him, the following categories of decisions of the Supreme Court has no binding force:
a. obiter diota i.e statements which are not part of the ratio
b. A decision per incurium: c. A decision passed sub silentio; d. An order made with the consent of the parties and with
reservation that it should not be treated as a precedent.
30. The learned Counsel for the Petitioners has further submitted that in
Mr. X V/s. Hosptial Z, the right to marry was not an issue before the Honourable Supreme Court and there was no lis between the parties on this issue. However the issue before the parties on this issue. However the issue before the Honourable Supreme Court was with regard to the jurisdiction of the National Consumer (Disputes) Redressal Commission and the issue of confidentiality. However, the Supreme Court went beyond the issue before it and decided on an issue not before it, and therefore, such directions could not be binding on this Court and this Court has the power to entertain and try this Petition. In this regard he relied upon the judgments of the Supreme Court viz. Ranchhoddas v/s. AIR 1961 SC 935, Sanjeev Coke Manufacturing Company V/s. M/s. Bharat Coking Coal Ltd. AIR 1983 SC 239, Unni Krishnan V/s. State of Andhra Pradesh (1993) SCC 645 and ADM Jabalpur V/s. S. Shukla AIR 1976 SC 1207.
31. The learned counsel for the Petitioners has further submitted that
keeping in view the decision of the Honourable Supreme Court in Mr. X V/s. Hospital Z, the Petitioners in the present case apprehend that their fundamental rights may be abridged and are therefore seeking a declaration that they are entitled to marry after full disclosure and full, free and informed consent of their prospective spouse. Relying on the case of D.A.V. College Bhatinda V/s. The State of Punjab AIR 1971 SC 1731, the learned Counsel for the Petitioners had submitted that as laid down by the Honourable Supreme Court a petition can be filed when the fundamental rights are threatened, and that the Petitioners need not wait till the actual threat has been carried out. According to him, even though the Respondents argue that the clarification sought should be before the Supreme Court itself, the proper thing for the Petitioners is to approach this Court which has the jurisdiction to entertain such petition. In this regard, the learned Counsel for the Petitioners has made a reference of A.R. Antulay V/s. R.S. Nayak AIR 1988 SC 155 and P.N. Kumar and Anr. V/s. Municipal Corporation of Delhi (1987) 4 SCC 609
32. Relying on the decision of the Supreme Court in the case of Fertilizer
Corporation Kamgar Union V/s. Union of India AIR 1981 SC 344, the learned Counsel for the Petitioners has further submitted that the questions raised in the present petition can be decided by this Court as it is well settled that the power of this Court under Article 226 of the Constitution can be exercised only for the enforcement of fundamental rights but also for any other purpose.
33. The learned Counsel for the Petitioners has submitted that the right to
marry and found a family and protection of the family encompass "the right of men and women of full age, without any limitation due to race, rationality or religion to marry and to found a family". According to him the right to bear children is also a fundamental right under Article 21 of the Constitution and the said right can only be taken away by a statutory law, and no Court of Judicial Authority can take away this right.
34. It is the submission of the learned Counsel for the Petitioners that the
suspension of the fundamental rights of HIV positive persons would only drive the disease underground and people will not test themselves for the disease and the disease will spread uncontrolled and unmonitored. He has made a reference of Utah Code of U.S. of America. The enacted legislation prohibiting HIV positive individuals the right to marry was struck down by the courts as it was found to violate the federal Americans with Disabilities Act. The Utah Code was amended in 1993 and "validation of marriage to a person with AIDS or other STDs the marriage is valid and legal".
35. The learned Counsel for the Petitioners has also made a reference of
International Human Rights obligations and HIV/AIDS. He has stated that the interdependence of human rights and public health is demonstrated by studies showing that HIV prevention and care programmes with coercive or punitive features result in reduced participation and increased alienation of those at risk of infection. According to him, the prevention of the transmission of HIV can be
done through effective intervention methods rather than suspending or taking away the fundamental rights of persons affected. He is of the opinion that the prevention interventions like as widespread prevention information, education and health services to men and women on how to protect themselves through safer sex, inside and outside marriage, the provision of counselling and voluntary testing for those concerned about their HIV status and prevention interventions targeted to groups whose behaviour put them at higher risk of infection, are more effective. According to him the social structure in traditional societies where women have a subordinate position, information, education and communication are the main solutions to deal with the problem rather than suspending or taking away fundamental rights of human beings. According to him, suspending or taking away rights does not prevent the spread of the disease.
36. The learned Counsel for the Petitioners has further submitted that, as
per the International Guidelines on HIV/AIDS with respect to women, children and other vulnerable groups, the States should, in collaboration with, and through the community, promote a supportive and enabling environment for women and children and other vulnerable groups by addressing them inequalities through community dialogue, specially designed social and health services and support to community, and thus, the women and children can be protected by empowering them and spreading information and knowledge of the disease, rather than suspending their fundamental rights.
37. Thereafter, the learned Counsel for the Petitioners has submitted that
the transmitted that the transmission of HIV can be effectively prevented through Condom usage. According to him consistent and correct use of condoms is highly effective in preventing the transmission of the disease.
38. While giving example of Thailand, the learned Counsel for the
Petitioners has further submitted than in Thailand they have developed and implemented the most effective HIV/AIDS education programmes, resulting in an outstanding 77% reduction in the rate of STDs the last five years. They had a 100% condom usage program among the new army recruits in the north which was successful in reducing HIV and other STDs. A National AIDS campaign was launched by the Government to educate all Thai citizens. The media used was the radio and the television to provide hourly messages on HIV/AIDS and prevention. They had created programs for distribution of condoms etc. For effective prevention of the spread of the disease. He has further submitted that in India the Sonagachi Project in West Bengal has aimed at preventing the spread of the disease by effective condom usage and empowering sex workers, which has been successful in preventing the spread of HIV and STDs by condom usage. According to him the condom program in the Country is gaining ground as per the National AIDS Control Organisation Country Scenario 1997-98. The social marketing and commercial sales of condoms is increasing and on the rise over the years. Improved quality of condoms are available all over the country and the unlubricated ones are being phased out.
39. While making reference of the Bhorukha AIDS Project in Calcutta
1995, the learned Counsel for the Petitioners has submitted that the effective interventions to prevent the spread of the disease is possible. He has stated that the goal of the said Project was to reduce transmission of HIV and STDs amongst the Truck Drivers and Helpers along the National Highway No. 28, and it was found that the people were more interested to purchase condoms due to the increased awareness of condoms.
40. The learned Counsel for the Petitioners has submitted that the HIV is
not the only communicable disease that is "dangerous to life". According to him the other communicable diseases like cholera, Malaria, Filariasis, Tuberculosis and Hepatitis B are also "dangerous to life" as they are the major cause of deaths in the Country. He is of the opinion that to control a disease and prevent it from spreading further, the state has to act quickly and effectively. According to him it is the responsibility of the State to spread information, educate people about the disease and about the precautions to be taken to prevent themselves from getting infected. He has submitted that the prevention of the spread of a disease "dangerous to life" like HIV/AIDS can and should be done only by information, education and communication, and not by taking away or suspending the fundamental rights of the human beings.
41. It is submitted by the learned Counsel for the Petitioners that the
transmission of HIV to the spouse during the subsistence of the marriage is not an offence covered by Sections 269/270 of the Indian Penal Code. According to him, the aforesaid Sections 269 and 270 deal with negligently or malignantly transmitting the disease dangerous to life to another person, however, in a consensual marital situation wherein the spouse is fully aware of the ways in which the disease is transmitted, the spouse is consenting to marry an HIV positive person, or any person with a disease "dangerous to life" would not be exposing themselves to a criminal act and it could not be said that the couple is committing a criminal offence under the Indian Penal Code. According to him a consensual marital situation with full knowledge and free and informed consent if different from a non-marital situation especially where there is no knowledge and/or full free and informed consent. Therefore, according to him, in consensual marital situation it cannot be said that the consenting married couple is committing an offence under sections 269 or 270 of the Indian Penal Code. He has submitted that under the various matrimonial laws, the venereal disease is a ground for divorce and not an offence under the Acs. According to him even impotency and epilepsy render the marriage void/voidable but they do not prohibit a person suffering from such impotency from marrying, not does it make such an act a criminal offence.
42. The learned Counsel for the Petitioners has further submitted that
transmitting the virus to the spouse malignantly or knowingly would be an offence, but transmission without knowledge is not an offence as there was no mens rea and there by not publishable under the Act. He is of the opinion that the transmission of the virus even after taking the adequate precautions would not be an offence under section 267 or
270 of Indian Penal Code, at the most, it could amount to cheating under Section 417 or 420 of Indian penal Code, but would not be covered by Sections 269 or 270 of Indian Penal Code.
43. Thereafter, the learned Counsel for the Petitioners has submitted that
the right to bear children is also a fundamental right under the bundle of rights under Article 21 of the Constitution. In this regard he relied upon the judgment of the Supreme Court in the case of R. Rajagpal V/s. State of Tamil Nadu (AIR 165 SC 264), and another judgment of the Supreme Court in the case of Gobind V/s. State of Madhya Pradesh (AIR 1975 SC 1378). He has submitted that the right to bear children can only be restricted by a constitutionally valid statute, and therefore, except by such a statutory law, a woman cannot be prevented from bearing children. Such a right of a woman to bear children cannot be abridged. While referring to the Medical Termination of Pregnancy Act which gives the discretion to a woman to abort the child on the opinion of the Medical Practitioners, in a situation where the unborn child is likely to be born with defects or where there is substantial danger to the mother or the child, the learned Counsel for the Petitioners has submitted that it does not however prevent the woman from bearing a child. As such, it is the submission of the learned Counsel that no authority including this Court can take away the fundamental right of a women to bear children in the absence of a valid statute.
44. Thereafter, the learned Counsel for the Petitioners has submitted that,
transmission of HIV from mother to child can be substantially reduced by adequate and effective medical interventions. By giving example of Wadia and Nair Hospitals in Mumbai, he has stated that such medical interventions have proved to be successful and have reduced the risk of transmission of HIV to the child in the womb and after birth. He has stated that new drugs e.g. Nevirapine introduced in Uganda and some other African Countries etc. are rapidly being introduced which seem to be more effective in reducing the risk of transmission of HIV from mother to child.
45. He has submitted that in fact it is the State’s duty to ensure that
adequate medical facilities are made available to ensure that the child born is healthy and the mother is educated about the pregnancy and how to prevent the child from getting infections and disease that could be fatal and lead to the death of the child. He has stated that in the HIV scenario, the mother should be given the option and must be informed that transmission of HIV to the child can be prevented by medical intervention and such medical intervention should be made easily available by the State. As such, the learned Counsel has submitted that, because of State’s inability, the fundamental rights of the individuals cannot be abridged.
46. It is the submission of the learned Counsel for the Petitioners that the
disease is spreading from rural to urban areas largely because of a floating population of the Country. According to him it is incorrect to say that HIV positive men are knowingly and purposefully marrying innocent women and infecting them with the disease. He has submitted that as the said disease is asymptomatic for about 8 to 10 years the
persons who are HIV positive are unaware about their HIV positive status, and therefore, they may transmit the said disease to their partner/spouse unknowingly. He has submitted that once a person is aware of his HIV status, thereafter, he takes adequate precautions not to spread it to the spouse or partners. He is of the opinion that it is incorrect to assume that the persons infected may spread the said disease to the spouse knowingly and maliciously. According to him what needs to be done is to give information to the people about the disease and encourage persons who have had high risk behaviour to test themselves, and such a testing can be done at anonymous unlinked testing Centres where full confidentiality of the persons HIV status is kept. Lastly the learned Counsel for the Petitioners has submitted that the object of preventing the spread of the disease cannot be achieved by taking away or suspending the fundamental rights of the human beings, however, it can be achieved through imparting information, educating people about the said disease and by the effective communication.
47. It is also brought to our notice that already a person suffering from
AIDS has moved the Honourable Supreme Court, on the very same issues raised in this Petition, contending that his fiancé has no objection to living with him in wedlock, and has no objection to living with him in wedlock, and has sought clarifications from the Supreme Court, as to whether a person suffering from a communicable disease has no right to marry and also even by mutual consent if such a marriage is solemnised, whether it attracts criminal action under Sections 269 and 270 of the Indian Penal Code. In the above it appears that the Supreme Court has already issued a notice to the Indian Medical Association.
48. We are of the considered view that for the clarifications and
declarations sought in this Petition, the Petitioners ought to approach the Supreme Court and all the more when now Supreme Court itself is seized of the matter.
49. Hence, we are not inclined to interfere in this matter and the Rule
stands discharged. We must also record our appreciation that all the learned Counsel who appeared in the above matter had taken great pains with a good deal of research.
50. Court Stenographer to issue an ordinary copy of this order duly
authenticated by the Court Associate to the parties.
51. Issuance of certified copy is expedited.
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