India: Delhi judge allows man to divorce wife because she is HIV-positive

In the first case of its kind, a Delhi court granted divorce to a man because he could not have sexual intercourse with his HIV-positive wife. Additional district judge Rajnish Bhatnagar allowed the divorce petition filed by the husband on the ground that “marriage without sex is anathema”.

Holding the wife guilty of not disclosing to her husband her HIV- positive status, the judge said the petitioner was subjected to cruelty because of this. Bhatnagar added: “The disease being sexually communicable, the petitioner cannot be reasonably expected to live with her and lead a happy married life.”

The petitioner had married the respondent who was working with the Kalawati Saran Hospital in Delhi on October 2, 2000. The couple apparently never had a “cordial” sexual relationship after marriage.

In March 2001, the petitioner said his wife conceived. Her doctor advised to undergo the HIV-1 and ELISA tests during pregnancy. The ELISA test, conducted during the third month of the pregnancy, revealed she was HIV-positive. Claiming the test was erroneous, the petitioner’s wife told him she would get another test done in the seventh or eighth month. The petitioner, however, compelled his wife to undergo another test which also declared her HIV-positive. She got her baby aborted on July 23, 2001.

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