Bombay High Court denies divorce to man who falsely claimed his wife was HIV positive

The Court observed that the husband had not examined an expert to establish that his wife was HIV positive while a medical report submitted by the wife, in fact, established that she was not.

The Bombay High Court recently denied divorce to a man who falsely claimed that his wife was HIV positive [Prasanna Krishnaji Musale vs Neelam Prasanna Musale].

The man had sought divorce on the ground that he suffered mental agony due to the wife testing HIV positive.

A bench of Justices Nitin Jamdar and Sharmila U Deshmukh observed that the petitioner had not examined any expert to establish that his wife was HIV positive and, on the contrary, a medical report submitted by the wife, in fact, established that she was not.

"The Petitioner has not examined any expert to establish that Respondent is a HIV positive patient, and on the contrary the report which is at Exhibit-27 shows that HIV-1 and HIV-2 DNA not detected. There is not an iota of evidence produced by the Petitioner that the Respondent had tested positive for HIV, which caused him mental agony or that the Respondent has treated him with cruelty," the Court stated.

The petitioner told the court that after he married the respondent in 2003, he helped her treat her tuberculosis.

He claimed that given her whimsical, short tempered and stubborn nature she did not behave well with either him or his family because of which they fought a lot.

Further, he claimed that in December 2004, the respondent contracted herpes and subsequently, tests revealed that she was HIV positive as well. All of this, he said, caused him and his family mental agony.

After the respondent returned from her matrimonial home where she had gone to recover from the sickness in February 2005, she was told to return by the petitioner's mother, he stated.

The petitioner, thereafter, filed for divorce on the ground that even after two months having passed, the respondent was not in a healthy condition and had tested positive for HIV again.

The respondent-wife denied the allegations and specifically stated that her HIV test reports had come out negative.

She claimed that due to the false rumour that she was HIV positive, she underwent a great deal of mental agony and that her social life was destroyed.

She filed an application under section 12 of the Protection of Women from Domestic Violence Act, 2005 claiming a sum of ₹5 lakh from the respondent towards damages and one bedroom flat for her accommodation.

Before the Family Court, the husband's plea was rejected while the wife's was partly allowed.

This led to the appeal before the High Court.

The High Court noted that the petitioner-husband failed to provide details of specific incidents of quarrels between the respondent and him or his family members.

Further, it was noted that the petitioner had admitted that during the two years the parties were together, no bitter quarrel took place between them and that she had never harassed him physically or mentally.

In this backdrop, the Court stated,

"It is settled that the cruelty must be of such a nature so as to give rise to a reasonable apprehension in the mind of the petitioner that it is harmful or injurious to live with the respondent. The petitioner has himself admitted that no bitter quarrel had taken place between him and the respondent and that the respondent has not harassed him"

On the aspect of the respondent suffering from HIV, the Court observed that the petitioner had not produced the test report he relied on to claim that the respondent was HIV positive. It further recorded that the report which said that the respondent was not suffering from HIV, was admitted as correct by the petitioner in his cross examination.

Hence, it held that the petitioner had not produced an iota of evidence to support his claim of mental agony due to his partner suffering from communicable venereal disease.

On the petitioner's claim of being deserted, the Court noted,

"As far as desertion is concerned, the Petitioner has himself deposed that after the Respondent was treated, he had brought her back to the matrimonial house but due to the objection of his mother, he asked the Respondent to go back and has decided not to cohabit with her. The deposition of the Petitioner makes it clear that the Petitioner has compelled the Respondent to leave the matrimonial house"

The Court ruled that on the ground of irretrievable breakdown of marriage, the petitioner could not be allowed to take advantage of his own wrong.

"Inspite of the report at Exh 27 which shows the test result as HIV DNA “not detected”, the petitioner has refused to co-habit with the respondent and defamed the respondent in the society by informing relatives and friends that the respondent has tested positive," the Court said.

Therefore, the Court upheld the Family Court's order and dismissed the appeal.

[Read Judgment]

Prasanna Krishnaji Musale v. Neelam Prasanna Musale.pdf

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