SWARAJYA LAKSHMI versus G.G.PADMA RAO

J.-This appeal by special leave is directed agairist the judgment and order da£ect July 22, 1 ':169 of the High Court of Judicature, Andhra Pradesh at Hyderabad in conne~tion with a petition filed by respondent Dr. G. G. P~ma Rao a~nst the .appellant Swarajya La.kshmi under Sec. 13( 1 )(1v) of the Hmdu Marnage 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 to New Delhi on,ly two days after the marriage. She returned to Hyderabad to live with her husband only towards the end of August 1963. Almost immediately thereafter jn tbe month of Sep. tember her husband discovered that she was suffering both from Leprosy and Tuberculosis. He bein~ a doctor started treating Lhc wife immediately. Not content with his own treatment he consulted also two experts namely Dr. C. V. Ethiraju:u and Dr. Shanti Narayan Mathur. At one point of time the responder\t-scriously 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 appeJJant. 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 Hyderab 1d for permission to present the petition reforc three vears 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 heard on evidence. On February 22, 1966 the Second A~?itional Chief Judge, City Civil Court, Hyderabad who he.ard the t>et~hon passed an order by which he held (a) that SwJ· ra1ya .Lakshmt, the appellant, had been suffering from an incurable and vtr:ulent form ?f leprosy for a period not less than three years lmmedtfl!ely precedmg the presentation of the netition: but (b) that ~e petitiOn was premature on the ground that the parties to the petitiOn had not been hu~~and and ~ife for a p;rio~ of three years. The learned Second Additional Chtef Judge disrrussed the ~tition on these findin~. 'fhe respondent thereupon went on appeal 'to the High Court of Andhra Prade~h. A Division Bench heard that appeal.

p. 98, margin B

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 favC1Ur of the respondent under Sec. 13(l),(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 that 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 hehalf of th~ appellant that the leprosy she was suffering from was curable and in fact she was on the way to recovery when the petition for disolution of marriage was presented. Both the conte~t· ing parties examined doctors in support of their respective conteu-. tions. 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 wellknown 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 w·hether the appellant's leprosy was of the incurable and virulent type.

p. 99, margin A

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 m1y sometimes be a good ground of divorce. Sec. 13 (1) of the said Act is in the following terms :-

p. 99, margin C

"13. (1) Any marriage solcmnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissq1ved by a ·decree of divorce on the ground that the other party- (i) ......... . (li) (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

p. 99, margin C

leprosy; or

p. 99, margin C

In construing these provisions one has to remember that divorce is not generally favoured or encouraged by courts and is permitt* only for very serious and grave reasons. This will become obvious if we compare the provisions set out above with the corresoon<i:ng provisions for judicial separation. Sec. 10 of the Hindu Marria~ Act permits judicial separation on ~ound of leprosy but the condi~ tions are far lm stringent. Sec. 1 0( 1) of the said Act runs follows:-

p. 99, margin G

"10. (I) Either party to a marriage, whether solcmniz- ·ed before or after the commencement of Act, may present a petition to the district court praying for a d~cre~ ior judicial separatio:t on the ground that the other party- (a) ............. . (b) ............. . (c) has, for a period of not less t:Jan one yl!ar imml!diately preceding the prcs::ntatioa of the petition,

pp. 99–100, margin H

be:!n suff~ring from a virulent form of lcp:osy; or

p. 100, margin A

It is s;gnificant that judicial separation is allowed if other party ·to a marriage has b~cn suffering from a virulent form of leprosy for a period of at least one year before the pesentation of the petition. In order, however, to be entitled to a decree of divorce a party has to prove that his spouse ha~ been suffering from a form of leprosy which is not only virul~nt but also incurable and further that the spouse concerned hac; 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 strinc,~nt than the conditi.ons under which judicial separation may be granted.

p. 100, margin A

Both parties agree that "virulent" iu this context is not a medical term. Indeed, the medical evidence on record also makes the same assertion. What, then, is the me:lrlillg of the word 'virulent'?

p. 100, margin C

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 pro!>crty 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 h,ld b~cn given in these Hindu Law decisions. In Ran~. goyya Chetti v. Tlwnikaclralla Mud1r!i & Ors. ( the learned Judgci of the Madras High Court scents to have trcatcJ the word 'virulent' as descriptive of the disease when it spre.:Ids quickly and extensively ov.::r the patient's body. Dealing with leprosy in the same context as furnishing a ground for c:-~:clusion from inheritance the Bombay High Court in Ananta v. RamlJb:;i(") says that ''the leprosy to disqualify must be of the sanious or ulcerous kind, which we th:nk the virulent or aggravated type of leprosy .... ". This meaning is given by the learned Judge on the basis of the ancient Hindu autho~ ritics as interpreted by the Bombay anu Madras High Ccurts in cer~ tain cases. ln the case of Ramabai v. Harnabai the Privy Co-.Jncil while d.!aJing with the issue· as to wh::-thcr a Hindu governed by the Mitakshara cxclud.ed by reason of leprosy fro:n the position of a joint owner of property of his joint family on the ground of leprosy ltcld that if the disca~e is of a type which is not very appo.rcnt except to minut.! iaspcctioa k would not exclude the person concerned from performing his social and religious duties in co:nbinatio:t with others and would not therefore be a disqualification. Th;o Privy Council ~1ad.

p. 100, margin C

~fJ. cites with approval the following observation of Benson and Sundara Ayyal' JJ. in Kayarchana Pathan v. Subbaraya 1'hevan :(1) "Deformity and unfitness for social intercourse arising from the virulent and disgusting nature of the disease would appear to b~ what has been accepted in both the texts and -the decisions as. the most satisfactory test". From this it is not di1licult to infer that according to the learned Judges any leprosy that led to deformity and unfitness for social inteicourse could be considered virulent. In Karali Clz~rall Pal v. Ashu:osh Nandi(Z) the Calcutta Hig;1 Cou~t in considering the question as to when leprosy under the Hindu law would be a ground of exdu~ion from inheritance held that it must be of th0 sanious or ulcerous and not of tl~e anaesthetic type.

pp. 100–101, margin H

It was contended on behalf of the appdlant that we should follow. these decisions in interpreting the word 'viru~ent' in connection with leprosy. We cannot, however, agree to accept th1s sugg~stion. '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 mau 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

p. 101, margin A

The meaning of the word 'virulent' appears in different dictionaries in the foiJowing manner:- Chambers Twentieth Century Dictionary:

p. 101, margin A

Virulent : highl.Y poisonous or malignant: venomous: acri-

p. 101, margin A

moruous. Webster's Seventh New Collegiate Dictionary:

p. 101, margin A

Virulent: 1. a: marked by a rapld, severe, and malignant

p. 101, margin F

course. b: able to overcome bodily defensive mecha-·

p. 101, margin F

nisms; 2. extremely poisonous or. venomous: noxious~ 3. ·full of malice : malignant;

p. 101, margin F

4. objcctlonab!y harsh or strong, T/ic Shorter Oxford English Dictionary·:

p. 101, margin F

Viru ent : 1. a : Of woun1s or ulcers.: cra~actcrised by.the pre-

p. 101, margin F

sence o£ corrupt. ~r pois<l!\~us maq.r,: b: Oi diseases, e~c.: Extremely malfsnam: or vi~ lent.

p. 101, margin F

T.L.R. ~0 C!. (f.4.

p. 101, margin F

2. Of serpents, material substances, plants, etc.: Pos~ sessing venomous or strongly potsonous qualities;

p. 102

extremely noxious.

p. 102

3. Violently bitter, spiteful or malignant; full of acri-

p. 102

mony or enmity' 'Virulent' therefore according to the dictionary meaning stands for malignant and infectious. .

p. 102

We shaH 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 aU medical authorities. We append . below some of the observations of the medical authorities on this aspect of the lepromatous type of leprosy.

p. 102

I. PRACTICE OF DERMATOLOGY

p. 102

by Dr. P. N. Behl

p. 102

(2nd Edition) At 232:

p. 102

Leprosy is apchronic, infectious disease caused

p. 102, margin D

rium At 232-233 :

p. 102, margin D

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 11 times more effective transmission as compared with exposures to non-

p. 102, margin D

lepromatous ·cases. At 236:

p. 102, margin D

LEPROMATOUS LEPROSY (L). In this type, the patient bas low resistance and lcprae multiply in atmnomi-

p. 102, margin D

cal numbers. At 244:

p. 102, margin D

The lepromatous form is malignant and contagious; there is no• tendency to self-arrest or regression.

p. 102, margin D

II. LEPROSY IN THEORY AND PRACTICE

p. 102, margin D

by R. C. Cochrane and T. Frank Davey

p. 102, margin D

(2nd Edition) At 222:

p. 102, margin D

... , AU clinical evidence goes to show that it is only the ~n · cases of leprosy with positive skin and/ or nasal mucosal bios1es, that are infective, and particularl_y the lep~omat?us fo~ which contains the largest numbers of mxcro-orgamsms ,m the skm.

p. 102, margin D

(Mto!{herjea, J.) 03 At page 76:

p. 103

Based on the numbe.r of IJlultiplc-case families, one must conclude that leprosy is as contagious or more contagious than is poliomyelities.

p. 103, margin A

. . . . .it would be advisable to state simply that leprosy is contagious and omit any reference to the degree of communicability until more factual information is available.

p. 103, margin A

III. MANSON'S TROPICAL DISEASES

p. 103, margin B

by Sir Philip H. Manson-Bahr

p. 103, margin B

(Sixteenth Ed.) At page 490:

p. 103, margin B

LEPRO~TOUS LEPROSY.-This is the type r.een in persons with a negligible resistance, and leprosy bacilli are widely disce'llinated throughout the skin, nerves and

p. 103, margin C

reticulo-endothelial system. At 505:

p. 103, margin C

PROGNOSIS.-Leprosy may sometimes be a slight passing ailment, or may become the most repulsive loath~ some disease known to man. The two important factors are concentration and distribution of bacilli in the body and resistance. Prognosis is more favourable in the tuberculoid than in the lepromatous type. and prognosis in 1he indeterminate and dimorphous groups is intermediate between these two.

p. 103, margin D

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.

p. 103, margin E

IV. NOTES ON LEPROSY

p. 103, margin F

by

p. 103, margin F

Dharmendra

p. 103, margin F

(Second Edition) At pa,lle 29:

p. 103, margin F

LEPROMATOUS LEPROSY: This is the severe malign form of th~ · di~"Me seen .in persons with little or no resistance to infection.

p. 103, margin G

We shall now deal with the next and also the more important question as to whether leprom~t"u~ lenr~y is inc·tr ble. The ,.,edic1l witnesses in this case have given their views on this subject. We haw already stated· why we prefer the views of the more well-known experts of leprosy as we find them in authoritative books on leproq.

p. 103, margin G

1. MANSON'S TROPICAL DISEASES

p. 104, margin A

by Sir Philip H. M:1n~on-Bahr

p. 104, margin A

(Sixteenth Edition) At 506 :

p. 104, margin A

In the lepromatous type one should speak of arrest rather than cure, and it may take 3-15 years to rid the skin of bacilli; sulphoncs should then be continued at half the

p. 104, margin A

maximal dosage for life.

p. 104, margin B

2. PRICE'S TEXT-BOOK 0;-.' THE PRACriCE OF MEDIClNE

p. 104, margin B

by Donald Hunter

p. 104, margin B

(Ninth Edition) At page 93: \

p. 104, margin C

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.

p. 104, margin C

Patients should be free from Myco. leproe 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.

p. 104, margin D

3. DISEASE OF Tiffi SKIN

p. 104, margin D

by Richard L. Sutton

p. 104, margin D

(Eleventh Edition) At page 364:

p. 104, margin E

PROGNOSIS. It could appear that no case of leprosy recov ~rs spontaneously or as a result of treatment.

p. 104, margin E

4. LEPROSY IN THEORY AND PRACTICE

p. 104, margin F

by R. K. Cochrane ?11~ T. FraPk Dw~y

p. 104, margin F

(2nd Edition) At page 355:

p. 104, margin F

Although the prognosis of patients on sulpbonc 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 Jife. The failure~ th'lt do occl!r with sulphone ~eat•nent are usually due to relapses after cessation of trtatment or to exacerbations during treatment.

p. 104, margin F

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 thc,t su phone treatment hos been so revolutional)· that leprosy should not any longer be considered to be an incurable disease. Our study of the various authorities on the subject does not support this view. lt is true that su1pttG11e is u uvuu e ly ·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 wtth sulpnone drugs. Bes1des, it is to be rememoered taat SuLphJne drugs were discovered about 1941 and thev were very wel-kn "lwn 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 sui phone 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 sufferin2 fro~ in~urable leprosy.

pp. 104–105, margin H

In this vi.e~ of the matter in our opinion the disease from which the app~llant suffers can be described as an incurable form o. leprosy. It is likely that with the future .advances -in the treatment of leprosy one day even this form, o( leprcsy wJt be .amenable to cure. We mly, in this connec;tica mention that even -after the sulphone theraj)y 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. Ever). so c.xperts do not. yet cons'der .that with all the adv~nces in. p(ly~lotherapV., ·surgery ,or. or~bqpaedic sur~ery it is poss~~le e_itber .to cure the disease completely or .. to correct the defornuhes and ,mutilations that .are often _pr~e4 by the disease •. All that the text boob . se¢ni ·.to suggest is .this . that. ';eradication· of the disease can • . a® .e.ventJld{ly Mil, ·,occur thr~ugh ~tfective treatment of the individual patkn~· .an~ ,segrega:ion to prevent. dissemip.ation of. the disease."

p. 105, margin A

In view. ·of our findings that .the form of leprosy from which the appellant suffers was both virulent and .incurable, we have come to th~ . sad .. but driavoidable conclusion· that this is a fit case in . wb~ -~~e ·~esp()ndent :should be granted a decree of divorce under the said

p. 105, margin A

d . . . . . Col')si4fraQle arguments wer.e m;tde _from . the. bar at the time ~9~. th~ , ~earing of the appeal to impress on our mind the . great mJUStJce done · to the respondent by . the. appellant's. father who, we were told, had deliberately married · the appellant to the respondent at a point of time when ~e knew she was suffering fr"m a bad type · of leprosy, by suppressing that fact from the respondent. While we have ourselves considerable susoic;ons in cw ..,in-:! t 1at f1h is perh1p~ tr·•e·, we h<:ve t<>k~n c'lre nf)t to allow th;s fact to h;tve any weight in the matter of decidinsz this appeal. In the -system of marria"e .prevai ing in the Hindu Societv. so 1onl! as marriatJeS cortinu~ to be arranged bv the parents. it will be iniquitous to allow the sins

p. 105, margin A

the oarents who arrange the marriage to visit on their children who marry. Marria!le. according to Hindu Law. is a sacrament and a ho1v u11ion for the performance of reJiqious duties. There can be no ouestion of either endangering or runturinq that relation on arco••nt of the conduct of the oarents. That is why marriaqe even thou~ brought about during the minority of either party thereto does not · SU~REME s.c.a.

pp. 105–106, margin C

m~aen st~tute conC<!p~ wc~c:

p. 106

trad~tonal th~ 1 0 ~ ~f

p. 106

if Fro~d 0pol~: ~h::e ~een of

p. 106

tn~ ~w L~

p. 106

\as _whe~cr sh~uld t~~~~

p. 106

fr~m we·

p. 106

sho~ld ~ds

p. 106

!~prosy suller~g ~ve th~ugh

p. 106

~ave i!' tr~at

p. 106

~pouse w~y uf

p. 106