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Not informing about HIV+ status before marriage

is NOT cheating, says court
By Hetal Vyas | Jul 8, 2008, 02.51 AM IST

If you happen to be HIV positive and intend to get married, it may be a moral
obligation for you to disclose it to your prospective spouse well before
D-Day. But, should you fail to disclose the matter, it does not really amount
to cheating --- not according to court, that is.

For, in a landmark ruling, the Bombay High Court has ruled that an HIV
positive man who failed to disclose the same to his wife --- the latter and her
child subsequently contracted the virus --- cannot be tried for cheating.

The HC order came on a petition filed by a 29-year-old woman from Satara,

who wanted her husband and in-laws to be tried for cheating and dowry
harassment.

The woman said she was infected with the HIV virus from her husband, who had been suffering from the
disease before their marriage which took place in 1997.

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Their child who was born in 2000, she said, was also diagnosed as HIV positive.

"These offences (dowry harassment under section 498A) relate to property of a person. The body of a woman
can, by no stretch of imagination, be treated as property, and therefore sections of cheating and wilfully
cheating (Section 420) would not attract in this case," ruled Justice Nishita Mhatre.

Though the court agreed that the woman's husband and her in-laws were fully aware that he was HIV positive
at the time of their marriage, it disagreed to try the accused for wilfully cheating, as the original complaint was
filed for dowry harassment.

The woman had in 2000 filed a case against her husband and in-laws
under Sections 498A, 323, 506 and 504.

She later applied in a local magistrate's court to try the accused under
Section 420 of IPC for alleged cheating. However, her plea was
rejected, after which she moved HC.

"Since the applicant is HIV positive, the magistrate will complete the
trial expeditiously," observed Justice Mhatre, while rejecting the
woman's plea.

Uday Warunjikar, advocate for the petitioner, argued, "This is a case of

cheating and should be treated as one of the 'rarest of rare' cases, where
a HIV positive woman has come to the court saying she was cheated by
her husband. The authorities should treat such cases sensitively, but
here they failed miserably. The local police did not even bother to
record her statement, hence she was forced to approach the court."

What the law says

• The Maharashtra government recently proposed to make pre-nuptial HIV tests mandatory. The health
department began the process earlier this year. A bill may be proposed to this effect in the winter session.

• The Andhra Pradesh government, in 2006, proposed a bill to make pre-marriage HIV tests compulsory. The
same is awaiting approval from both houses.

• Other states in India are not very keen on making pre-nuptial HIV tests mandatory.

• Abroad, the USA and UK have made HIV tests compulsory for expecting mothers.

What Petitioner says

"This is a case of cheating and should be treated as one of the 'rarest of rare' cases" - Uday
Warunjikar, advocate for the petitioner

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What experts say

Purnima Advani, senior advocate, Bombay High Court

The solution is greater awareness in society on the health impact of HIV. There is also need to
encourage couples to undertake a medical examination before marriage. The government should keep special
provisions in the budget for AIDS awareness programmes.

Jamshed Mistry, advocate, Bombay High Court

A pre-marriage HIV test is the only sure and practical solution to avoid such cases. The ones who suffer most
are children of such couples, and the government needs to act on a priority basis."

What The court says

"These offences (dowry harassment under section 498A) relate to property of a person. The body of
a woman can, by no stretch of imagination, be treated as property, and therefore sections of cheating
and wilfully cheating (Section 420) would not attract in this case"

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