Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10
PETITIONER:
SWARAJYA LAKSHMI
Vs.
RESPONDENT:
G. G. PADMA RAO
DATE OF JUDGMENT19/10/1973
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
MATHEW, KUTTYIL KURIEN
BEG, M. HAMEEDULLAH
CITATION:
1974 AIR 165 1974 SCR (2) 97
1974 SCC (1) 58
ACT:
Hindu Marriage Act (25 of 1955), s. 13(i)(iv)-Virulent and
incurable form of leprosy. what is-Relevancy of motives of
spouses of their parents.
HEADNOTE:
The appellant was suffering from the lepromatous form of
leprosy, and the respondent" husband, filed a petition under
s. 13(1)(iv) of the Hindu Marriage Act, 1955, for the
dissolution of the marriage on the ground that the appellant
had, for a period of not less than 3 years immediately
preceding the presentation of the petition, been suffering
from a virulent end incurable form of leprosy. The High
Court, in appeal, granted the decree.
Dismissing the appeal to this Court,
HELD:The form leprosy from which the appellant was
suffering was both virulent and incurable and it was a fit
case for granting the decree. [105E-F)
(1)The term virulent is not a medical term The decisions
of the Privy, Council and the different High Courts in India
where the word virulent’ had been used for interpreting the
Hindu Law on the subject of exclusion from inheritance have
used it to describe leprosy of the most serious and
aggravated type. The emphasis in the Hindu religious and
legal texts was on the competence of a man to perform his
social and religious obligations. No word had been used in
those texts which could be referred to as the corresponding
Sanskrit word for ’virulent. Therefore, those decisions do
not give any sure and reliable guidance for interpreting the
word ’virulent in the section. [100E; 101E-F]
Rangayya Chetti v. Thanikachalla Mudali & Ors.. I.I.R. 19
Mad. 74, Ananta v. Ramabai. I.L.R. 1 Born. 554, Rantabai v.
Harizabai, I.L.R. 48. Bom. 363, (P.C.) Kayarana Pathan v.
Subbaraya Thavan, I.L.R. 38 Mad. 250, Karali Charan Pal v.
Ashutosh Nandi, I.L.R. 50 Cal. 604, referred to.
(2)’Virulent’ according to the dictionary means ’malignant
and infectious’ Almost all medical authorities recognise
lepromatous leprosy as malignant and contagious. [102B-C] ,
(3)(a) The disease can also be described a* an incurable
form of leprosy. Sulphone treatment which has made
undoubtedly a great advance on the previous methods of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10
treatment of leprosy does not guarantee complete cure.
There are also other efficacious drugs but even so. experts
do not yet consider that, with all the advances in
physiotherapy, surgery or orthopedic surgery, It is possible
either to cure the disease completely to correct the
deformities and mutilations that are often produced by the
disease. [ 105A-B, C-E]
(b)Further sulphone drugs were discovers about 1941 and
the Legislature must be presumed to have known about their
effect on leprosy when the Hindu Marriage Act, 1955, was
passed. If it be true that all types of leprosy are curable
by sulphone drugs the legislature would not have provided
for the grant of divorce on the ground of incurable leprosy.
[105B-C]
(4) It is the true that the social approach to leprosy
should be that one should take a very humane and balanced
outlook and accept leprosy as simply another disorder that
requires medical attention. But that does not provide any
justification for compelling a husband to live with a wife
who is suffering from an aggravated form of leprosy and who
ran communicate it to him and his children almost any moment
in their daily life even though the legislature by statute
has given the husband a way of relief. The only
consideration being the welfare of the spouses and of the
children, if any, of the marriage, the court cannot take
into account while deciding the question the motives of the
spouses for applying for divorce or of their parents in
arranging the marriage. [106A-B, C-E]
-L447SCI/74.
98
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil appeal No. 2248 of
1970.
Appeal by special leave from the judgement ’and Order dated
the 2nd July, 1969, of the Andhra Pradesh High Court at
Hyderabad in appeal against order No. 224 of 1966.
Y. S. chitle K. Rajendra Choudhury and Veena Devi, for
the appellant.
R. Vasudev Pillai and P. Kesava Pillai, for the
respondent.
The Judgment of the Court was delivered by
MUKHERJEA, J.--This appeal by special leave is directed
against the judgment and order dated July 22, 1969 of the
High Court of Judicature, Andhra Pradesh at Hyderabad in
connection with a petition filed by respondent Dr. G. G.
Padma Rao against the appellant Swarajya Lakshmi under, Sec.
13(1)(iv) of the Hindu Marriage Act, 1955 for the
dissolution of the marriage between them by a decree of
divorce on the ground that the appellant had for a period of
not less than three years immediately preceding the
presentation of the petition been suffering from a virulent
and incurable form of leprosy. The appellant and the
respondent were married on June 17, 1963. The appellant was
then 20 and the respondent, her husband, was 28 years of
age. The appellant, we are told, was taken away by her
parents of New Delhi only two, days after the, marriage she
returned to Hyderabad to live with her husband only towards
the end of August 1963. Almost immediately thereafter in
the month of September her ’husband discovered that she was
suffering both from Leporsy and Tuberculosis. He being a
’doctor started treating the wife immediately. Not content
with his own treatment he consulted also two experts namely
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10
Dr. C. V. Ethirajuju and Dr. Shanti Narayan Mathur. At one
point of time the respondent seriously contemplated
admitting the appellant to a leper home, but the appellant
was taken away by her father to New Delhi in May 1964 as she
was then expecting a child, On June 4, 1965 the
respondent filed a petition under the Hindu Marriage Act
(hereinafter referred to as the said Act) for, dissolution
of his marriage with the appellant. At the time of
Presenting this petition he made an application under Sec.
14(1) of the said Act before the City Civil Court at
Hyderabad for permisSion to present the petition before
three years had elapsed from the date of the marriage on the
ground that the case was one of exceptional hardship to the
respondent. The permission was granted and the petition was
thereafter beard on evidence. On February 22, 1966 the,
Second Additional. Chief Judge, City Civil Court, Hyderabad
who heard the Petition passed an order by which he held (a)
that Swarajya Lakshmi, the appellant, had been suffering
from an incurable and virulent form of leprosy for a period
not less than three years immediately preceding the
presentation of the petition but (b) that the petition was,
premature on the ground that the parties to the petition had
not been husband and wife for a period of three years. The
learned Second Additional Chief Judge dismissed the
petition on these findings. The respondent thereupon went
on appeal to the High Court of Andhra Pradesh. A Division
Bench beard that appeal.
99
By an order dated July 22, 1969 the Division Bench allowed
the appeal, set aside the order of the court below and
granted a decree for divorce in favour of the respondent
under Sec. 13 (1) (iv) of the said Act. From this judgment,
appellant Swarajya Lakshmi has now come by special leave on
appeal to this Court. The main controversy between the
parties before us turned round the question : Was the prosy
of Swarajya Lakshmi of an incurable and virulent form ? Both
parties seem to be agreed at Swarajya Lakshmi was suffering
from the lepromatous form of leprosy. The respondent
contends that this was an incurable and virulent form of
leprosy while it was contended on behalf of the appellant
that the leprosy she was suffering from was curable and. in
fact she was on the way to recovery when the petition for
dissolution of marriage was presented. Both the contesting
parties examined doctors in support of their respective
contentions. The doctors agreed that "virulent" is not
really a medical term. Apart from this the medical evidence
on record is not very helpful in the sense that they cancel
each other. But leprosy is such a well-known disease and
there are such well-known medical experts on this subject
who have recorded their views in print in a fairly convinc-
ing manner, that it is not impossible to come to a
conclusion regarding the question whether the appellant’s
leprosy was of the incurable and virulent type.
Before considering the medical authorities on the subject we
should consider the scope and intent of the provisions of
the Hindu Marriage Act under which leprosy may sometimes be
a good ground of divorce. Sec. 1 3 (1 ) of the said Act is
in the following terms
"13. (1) Any marriage solemnised, whether
before or after the commencement of this Act,
may, on a petition presented by either the
husband or the wife, be dissolved by a decree
of divorce on the ground that the other party-
(i).......
(ii)..........
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10
(iii).........
(iv)has, for a period of not less than three
years immediately preceding the presentation
of the petition, been suffering from a
virulent and incurable form of leprosy; or
In construing these provisions one has to remember that
divorce is not generally favored. or encourage by courts and
is permitted only for very serious and grave reasons. This
will become obvious if we compare the provisions set out
above with the corresponding provisions for judicial
separation. Sec. 10 ,of the Hindu Marriage Act permits
judicial separation on ground of leprosy but the conditions are f
ar less stringent. Sec. 10(1) of the said Act runs as
follows :-
"10. (1) Either party to a marriage, whether
solemnized before or after the commencement of
this Act, may
100
present a petition to the district court
praying for a decree for judicial separation
on the ground that the other party-
(a).............. (b)..............
(c) has, for a period of not loss than one,
year immediately preceding the presentation of
the petition, been suffering from a virulent
form of leprosy; or ......................
It is significant that judicial separation is allowed if
other party to a marriage has been suffering from a virulent
form of leprosy for a period of at least one year before the
presentation of the petition. In order, however, to be
entitled to a decree of divorce a party has to prove that
his spouse has been suffering from a form of leprosy which
is not only virulent but also incurable and further that the
spouse concerned has been suffering from this ailment for a
period of at least three years before the presentation of
the petition. Clearly, enough, the conditions under which
divorce is to be allowed are far more stringent than the
conditions under which judicial separation may be granted.
Both parties agree that "virulent" in this context is not a
medical term. Indeed, the medical evidence on record also
makes the same assertion. What, then, is the meaning of the
word ’virulent’?
A suggestion was made to us that the word ’virulent’ is a
relic of those decisions in Hindu law which speak of leprosy
as a disqualification entailing forfeiture of property
rights of the person afflicted by that disease when "it
appears in a virulent and aggravated form". We were asked
to give the same meaning to this word in the present context
as bad been given in these Hindu Law decisions. In Rangayya
Chetti V. Thanikachalla Muddi & Ors.(1) the learned Judge,
of the Madras High Court seems’ to have treated the word
’virulent’ as descriptive of the disease when it spreads
quickly and extensively over the patient’s body. Dealing
with leprosy in the same context as furnishing a ground for
exclusion from inheritance the Bombay High Court in Ananta
v. Ramabai(2) says that "the leprosy to disqualify must be
of the sanious or ulcerous kind, which was, we think the
virulent or aggravated type of leprosy . This meaning is
given by the learned Judge on the basis of the ancient Hindu
authorities as interpreted by the Bombay and Madras High
Courts in certain cases. In the case of Ramabai v. Harnabai
the Privy Council while dealing with the issue as to whether
a Hindu governed by the’ Mitakshara was excluded by reason
of leprosy from the position of a joint owner of property of
his joint family on the ground of leprosy held that if the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10
disease is of a type which is not very apparent except to
minute inspection it would not exclude the person concerned
from performing his social and religious duties in
combination with others and would not therefore be a
disqualification. The Privy Council
(1) I.L.R. 19 Mad. 74. (2) I.L.R. I Bom. 554.
(3) I.L.R. 48 Bom. 363.
101
cites with approval the following observation of Benson and
Sundara Ayyar JJ. in Kayarchana Pathan v. Subbaraya Thevan
:(1) "Deformity and unfitness for social intercourse arising
from the virulent and disgusting nature of the disease would
appear to be what has been accepted in both the texts and
the decisions as the most satisfactory test". From this it
is not difficult to infer that according to the learned
Judges any leprosy that led to deformity and unfitness for
social intercourse could be considered virulent. In Karali
Charan Pal v. Ashutosh Nandi(2) the Calcutta High Court in
considering the question as to when leprosy under the Hindu
law would be a ground of exclusion from inheritance held
that it must be of the sanious or ulcerous and not of the
anesthetic type.
It was contended on behalf of the appellant that we should
follow these decisions in interpreting the word ’virulent’
in connection with leprosy. We cannot, however, agree to
accept this suggestion. ’Virulence’ as a ground for
exclusion from inheritance is treated from an entirely
different angle in the Hindu religious and legal texts. The
general emphasis in those contexts was of the competence of
a man to perform his social and religious obligations and no
word has been used in those texts which could be referred to
as the corresponding Sanskrit word for ’virulent’. The
decisions of the different High Courts and the Privy Council
where the word ’virulent’ has been used for interpreting the
Hindu law on the subject have used it to describe the
leprosy of the most serious and aggravated type. This does
not therefore give any sure and reliable guide in
interpreting the word ,virulent’. Since the word is not
used by medical experts in describing any particular type of
leprosy we have to find the meaning of the word from the
dictionaries.
The meaning of the word ’virulent’ appears in different
dictionaries in the following manner :-
Chambers Twentieth Century Dictionary
Virulent : highly poisonous ’or malignant:
venomous: acrimonious.
Webster’s Seventh New Collegiate Dictionary:
Virulent: 1.a: marked by a rapid, severe,
and malignant course.
b:able to overcome bodily defensive mecha-
nisms;
2. extremely poisonous or venomous:
noxious;
3. full of malice : malignant;
4. objectionably harsh or strong.
The Shorter Oxford English Dictionary
Virulent 1. a : Of wounds or ulcers :
characterised by the presence of corrupt or
poisonous matter.
b: Of diseases, etc.: Extremely malignant
or violent.
(1) I.L.R. 38 Mad. 250. (2) I.L.R. 50
Cal. 604.
102
2. Of serpents, material substances,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10
plants, etc.: Possessing venomous or strongly
poisonous qualities; extremely noxious.
3. Violently bitter, spiteful or malignant;
full of acrimony or enmity.
Virulent’ therefore according to the dictionary meaning
stands for malignant and infectious.
We shall now proceed to consider whether lepromatous leprosy
which is the type from which the appellant admittedly
suffers is ,virulent’. That lepromatous leprosy is
malignant and contagious seems to be recognised by almost
all medical authorities. We append below some of the
observations of the medical authorities on this aspect of
the lepromatous type of leprosy.
I. PRACTICE OF DERMATOLOGY
by
Dr. P. N. Bebl
(2nd Edition)
At page 232
Leprosy is apchronic, infectious disease
caused by Mycobacterium leprae.
At pages. 232-233
Prolonged and close contact is ideal for
its transmission. Transmission by short and
intimate contacts has also been reported.
Exposures to lepromatous cases results in 4 to
1 1 times more effective transmission as
compared with exposures to non-lepromatous
cases.
At page 236
LEPROMATOUS LEPROSY (L). In this type,
the patient has low resistance and
Mycobacterium leprae multiply in atmnomical
numbers.
A t page 244 :
The lepromatous form is malignant and
contagious; there is no tendency to self-
arrest or regression.
II. LEPROSY IN THEORY AND PRACTICE
by
R. C. Cochrane and.T. Frank Davey
(2nd Edition)
At page 222
open cases of leprosy with positive skin
and/or nasal mucosal biosies, that are
infective, and particularly the lepromatous
form which contains the largest numbers of
micro-organisms in the skin.
103
At page 76
Based on the number of multiple-case families,
one must conclude that leprosy is as
contagious or more contagious than. is,
poliomyelities.
contagious and omit any reference to the
degree of communicability until more factual
information is available-
III. MANSON’S TROPICAL DISEASES
by
Sir Philip H. Manson-Bahr
(Sixteenth Ed.)
A t page 490
LEPROMATOUS LEPROSY.-This is the type seen in
persons with a negligible resistance, and
leprosy bacilli are widely disseminated
throughout the skin, nerves and reticulo-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10
endothelial system.
At page 505
PROGNOSIS.-leprosy may sometimes be a slight
passing ailment, or may become the most
repulsive loathsome disease known to man. The
two important factors are concentration and
distribution of bacilli in the body and
resistance. Prognosis is more favorable in
the tuberculoid than in the lepromatous type
and prognosis in he indeterminate and
dimorphous groups is intermediate between
these two.
THE DANGER OF CONTACT.-The factors which
predispose to the danger of contact are
closeness and duration, the infectivity of the
case, combined with the age and general health
of the person exposed to contagion.
IV. NOTES ON LEPROSY
by
Dharmendra
(Second Edition)
At page 29
LEPROMATOUS LEPROSY: This is the severe malign
form of the disease seen in persons with
little or no resistance to infection.
We shall now deal with the next and also the more important
question as to whether lepromatous leprosy is incredible.
The medical witnesses in this case have given their views on
this subject. We have already stated why we prefer the
views of the more well-known experts of leprosy as we find
them in authoritative books on leprosy.
104
1. MANSON’S TROPICAL DISEASES
by
Sir Philip H. Mancon-Babr
(Sixteenth Edition)
At page 506
In the lopromatous type one should speak of
arrest rather than cure, and it may take 3-15
years to rid the skin of bacilli; sulphones
should then be continued at half the maximal
dosage for life.
2. PRICE’S TEXT-BOOK OF THE PRACTICE OF
MEDICINE
by
Donald Hunter
(Ninth Edition)
At page 93
Sulphone treatment must be continued for
months, if possible for some years. Some
authorities believe it should go on at
intervals for life. It is not yet possible to
say whether cure results from sulphone
therapy.
Patients should be free from Myco. leprae for
at least two years before discharge-, even
then it is not possible to say whether the
condition is really cured or merely arrested,
for leprosy is notoriously a disease of
remissions.
3. DISEASE OF THE SKIN
by
Richard L. Sutton
(Eleventh Edition)
At page 364
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10
PROGNOSIS. it could appear that no case of
leprosy recovers spontaneously or as a result
of treatment.
4. LEPROSY IN THEORY AND PRACTICE
by
R. K. Cochrane and T. Frank Davey
(2nd Edition)
At page 355 :
Although the prognosis of patients on sulphone
therapy is undoubtedly good, a permanent cure
cannot be certain in any particular case and
it may be necessary, as a precaution, for the
patient to take the drug for the rest of his
life. The failures that do occur with
sulphone treatment are usually due to relapses
after cessation of treatment or to
exacerbations during treatment.
Considerable emphasis was laid at the time of arguments by
the appellant’s counsel on the great advances made by
sulphone treatment. It was contended that sulphone
treatment has been so revolutionary that leprosy should not
any longer be considered to be an
105
incurable disease. Our study of the various authorities on
the subject does not support this view. It is true that
sulphone is undoubtedly a great advance on the previous
methods of treatment of leprosy but even sulphone does not
guarantee complete cure. All authorities agree that the
sequelae remain even after the most prolonged treatment with
sulphone drugs. Besides it is to be remembered that
sulphone drugs were discovered about 1941 and they were very
well-known all over the world at the time when the Hindu
Marriage Act, 1955 was passed. The-legislators must be
presumed to have known the effect of sulphones on leprosy.
If it be true that sulphone drugs have made leprosy of all
types curable there would be no point in the legislature
making a provision in the Hindu Marriage Act which will
entitle a spouse to a decree of divorce if the other party
to the marriage would be found suffering from incurable
leprosy.
In this view of the matter in our opinion the disease from
which the appellant suffers can be described as an incurable
form of leprosy. It is likely that with the future advances
in the treatment of leprosy one day even this form of
leprosy will be amenable to cure. We may, in this
connection mention that even after the sulphone therapy a
drug known as CIBA-1906 was found out which in preliminary
stages- appears to be equal in efficacy to the sulphones but
far less toxic. Even so experts do not yet consider that
with all the advances in physiotherapy, surgery or
orthopedic surgery it is possible either to cure the disease
completely or to correct the deformities and mutilations
that are often produced by the, disease. All that the text
books seem to suggest is this that "eradication of the
disease can, and eventually will, occur through effective;
treatment of the individual patient and segregation to
prevent dissociation of the disease."
In view of our findings that the form of leprosy from which
the appellant suffers was both virulent and incurable, we
have come to the sad but unavoidable conclusion that this is
a fit case in which the respondent should be granted a
decree of divorce under the said ct.
Considerable arguments were made from the bar at the time of
the hearing of the appeal to impress on our mind the great
injustice done to the respondent by the appellant’s father
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10
who, we were told, had deliberately married the appellant to
the respondent at a point of time when he knew she was
suffering from a bad type of leprosy, by suppressing that
fact from the respondent. While we have ourselves
considerable suspicions in our mind that this perhaps true,
we have taken treat care not to allow this fact to have any
weight in the matter of deciding this appeal. In the system
of marriage prevailing in the Hindu Society, so long as
marriages continue. to be arranged by the parents, it will
be iniquitous to allow the sins of the parents who arrange
the marriage to visit on their children who marry. Marriage
according to Hindu Law, is a sacrament and a holy union for
the performance of religious duties. There can be no
question of either endangering or rupturing that relation on
account of the conduct of the parents. That is why marriage
even though brought about during the minority of either
party thereto does not
106
make the marriage invalid. Divorce and dissolution of
marriage are concepts which were alien to Hindu Law before
the statute stepped in to modify the traditional law. From
the moment a marriage has been completed the relation of the
husband and wife has to be considered only from the point of
view of the welfare of the husband and wife and, also, we
must add, of the children, if any, of the marriage. From
this point of view, we have refused to be prejudiced by the
consideration of what either the appellant or the
appellant’s father may have been motivated by. The story
that the respondent who was a young doctor of indifferent
means was duped and beguned into a marriage with the
appellant by considerations of the position, authority, and
affluence of the father-in-law is one which, even it be
true, has nothing to do with the question whether divorce
should be given under the Hindu Marriage Act. Likewise,
the suggestions made on behalf of the appellant that the
respondent had been attempting to extort money from her
father, also have no bearing on the question we have to
decide here.
We should like to make another observation. Sociologists
insist and they do so very correctly that we should not
allow our minds to be swayed by feelings of emotional
loathing and revulsion with which leprosy patients have been
treated throughout human history in all countries throughout
the world and that we should take up a humane and balanced
outlook and accept leprosy "as simply another disorder that
requires medical attention". We have no doubt that this is
absolutely correct about what should be the social approach
to leprosy but to our mind this should not provide any
justification for compelling a husband to live with a wife
who is suffering from an aggravated form of leprosy and who
can give him and his children leprosy almost any moment in
their daily life, even though the legislature by a statute
has given the husband a way of relief. We have no doubt in
our minds that the law-makers do not treat the subject of
divorce lightly and must have taken into consideration the
consequences of one spouse being compelled to live
intimately with another spouse who suffers from leprosy when
they provided for a way out for the former.
In the light of these considerations we dismiss the appeal
and uphold the Judgment of the High Court. In the facts and
circumstances of the case we make no order as to costs.
V.P.S. Appeal dismissed.
107
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10