The Supreme Court dismissed the appeal against a divorce decree, holding that lepromatous leprosy is both virulent and incurable under the Hindu Marriage Act. The Court interpreted 'virulent' based on dictionary definitions and medical evidence, noting divorce is a remedy for grave reasons.
Divorce decree granted to the respondent; appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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07
SW ARAJYA LAKSHMI
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G. G. PADMA RAO
October 19, 1973
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[K. K. MATHEW, M. H. BEG AND A. K. MUKHE.RJEA, JJ.J
Tlind11 Marriage Act (2~ of 1955), s. !3U)(iv)-Yirulent and i11r.urable form of ltpro:r)', wlrnt is--Relevancy of motives of spouses of their parents.
The appellant was suffering from the Jeproma~ous form Qf leprosy, Md the respondent, her husband, filed a petition under s. 13 (1) (iv) of the Hindu Marriage Act, .J9SS, for the dissolution of the marriage on the ground that the appellant had, for a ]lfriod of not less than 3 years immediatcly preceding the presentation of the petition, been suffering from a virulent (lnd (ncurable form c of leprosy. The .Hish Court, in appeal, arantr.d the decree.
Dismissing the appeal to thi.! Court,
HELD : The form leprosy from which the appellant was suJfcrin~t was both virulent and incurable and it was a ftt case for granting the Jecree. [lOSE-F) ·
( 1 ) The term virulent is not a medical term. The decisions of the Privy Council and the different High Courts m India wh~re the word virulent' had been used for interpreting the Hindu Law on the subject of exclusion from D inheritance have used it to describe leprosy of the most serious aDd aggravated type. The emphasis in the Hindu rcl1gious and legal texts was on the compc· tencc of a man to perform his social and religious obligatiops. No word had been used in those texts which coull\ be referred to as the c:onespondiq Sanskrit word for 'virulent'. Therefore, those decisions do not give any sure and reliable guiuancc for interpreting the word 'virulent' in the iection. (IOOE·, IOIE·Fl
Railgcry_vrt Clletti v. TflilnikacluJlla Mudali &. Ors •. J.L.R. 19 Mnd. 74. E A1111nta v. Ramabai. J.L.R. 1 Born. 554. Ramaf>ai. v. llamabai, J.l..R. 8' Bom. 363, (P.C.) Knyarlla Pnthan v. Subbnraya Tl1avan, LL.R. 38 Mad. 250, Karali Char(l!J Pfll v, Asltutosh Nandi, I.L.R. SO Cal. 604, referred to.
(2) 'Virulent' according to the dictionary means 'malignant and infectious'. Almost oil medical authorities rec'lgnise lepromatous leprOlly as malignant and contagious. [102B.C]
(3) (a) The disense can also be described as an incurable form of leprosy. F Sulpbone treatment which bas made undoubtedly a great advance on the previous methods of .treatment of leprosy does not guarantee complete cure. There are abo other efficacious drugs but even so, experts do not yet consider that, with all the advances in physiotherapy,. surgery or orthopaedic ~urgery, it is possible either to cure the disease completely or to correct the ·deformities and mutilations that are often produced by the disease. [105A-B, C-E). (b) Further, sulphone drugs were discovered about 1941 and the Legislature must be presumed to have known about their effect on leprosy when the Hindu G Marriage Act, 1955, was p!IS:Ied. If it be true that all types of leprosy are curable by sulpbone drugs the legislature would not have provided for the grant of divorce on the ground of ilacurr.,bit leprosy. [lOSB..CJ
( 4) It i~ true that the social approach to leprosy should b! 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 provid" anv justification for compelling a husband to live with a wife who is suffering from an: atravated form of jeprosv and who can communicate it to him and his children H almost any lltOment in their dailv life even though the legislature bv statute hu rjven the husband a way of relief. The only consideration bein!l the welfare of. the spouses and ol the children, if :my, of the marring", the court cannot take into account while deciding the question the motives of the soou~es for applying for divorce or cf their parents in arranging the marri<•ge. [106A·B. C-EJ
8-L447SCr'/74.
98 SUPREME COURT REPORTS [ 1974 ) 2 S.C.lt.
CIVIL APPELATt:: JURISDICTION : Civil A~l No, 2248 of 1970 "
Appeal by special leave from the judgement and Order dated the 2nd July, 1969, of the Andhra Pr.adesh High Court at Hyderabad in appeal against order No. 224 of 1966.
Y. S. Chitle, K. Rajendra Choudhury and Vtena Devi, for the appellant.
B
R. Vas.udev Pillai and P. Kesava Pillai, for the respondent.
The Judgment of the Court was delivered by
MUICHERJEA, 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 connetion with a petition filed by respondent Dr. G. G. Pma Rao anst 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 Pradeh. A Division Bench heard that appeal.
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S. LAKSHMI v. G. G. RAO (Mukherjea, J.)
99
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 :- "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 leprosy; or
I .. < O 6 O 0 O 0 0 I .. • • 0 0. • 0 0 0 0 • 0 • '.1 0 I I "
G 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 as H follows:-
"10. (I) Either party to a marriage, whether solcmniz·ed before or after the commencement of thi<> Act, may
100 SUPREME COURT REPORTS [ 1974 J 2 S.C.R. ' present a petition to the district court praying for a dcre A 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, be:!n suff~ring from a virulent form of lcp:osy; or "
It is s;gnificant that judicial separation is allowed if other party ·to a marriage has bcn 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 c 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.
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'?
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 bcn given in these Hindu Law decisions. In Ran. goyya Chetti v. Tlwnikaclralla Mud1r!i & Ors. ( 1) 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 WJS, 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 W;.t,S 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
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(I) l.l.R. 19 ~1ad. 7-t (2) LL.R. 1 R<'n. 554. (3) ·J.L.R. 48 non. ~fJ.
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S. LAKSllMI V. G.G. RAO (Mukl!erjea, ].) 101
The meaning of the word 'virulent' appears in different dictionaries in the foiJowing manner:-
Chambers Twentieth Century Dictionary:
Virulent : highl.Y poisonous or malignant: venomous: acriF moruous.
Webster's Seventh New Collegiate Dictionary:
b: able to overcome bodily defensive mecha-· nisms;
T/ic Shorter Oxford English Dictionary·:
Viru1 ent : 1. a : Of woun1s or ulcers.: craactcrised by.the presence o£ corrupt. r pois<l!~us maq.r,: .. n b: Oi diseases, ec.: Extremely malfsnam: or vi lent.
(2) T.L.R. ~0 C!. (f.4.
102 SUPREME COURT REPORTS ( 1974) 2 S.C.R.
'Virulent' therefore according to the dictionary meaning stands for malignant and infectious. .
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.
n.
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I. PRACTICE OF DERMATOLOGY
by
Dr. P. N. Behl (2nd Edition)
At pa£e 232:
D
Leprosy is apchronic, infectious disease caused rium leprae.
At pages 232-233 :
Prolonged and close contact is ideal for its transmission. Transmission by short and intimate contacts has also been reported.. K · Exposures to lepromatous cases results in 4 to 11 times more effective transmission as compared with exposures to nonlepromatous ·cases.
At page 236:
LEPROMATOUS LEPROSY (L). In this type, the patient bas low resistance and Mycobacterium lcprae multiply in atmnomical numbers.
11
At 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:
... , AU clinical evidence goes to show that it is only the n · )11 cases of leprosy with positive skin and/ or nasal mucosal bios1es, .. that are infective, and particularl_y the lepomat?us fo~ which contains the largest numbers of mxcro-orgamsms ,m the skm.
/
S. LAKSIJMi V. G. G. RAO (Mto!{herjea, J.) 1 03
A
At page 76:
Based on the numbe.r of IJlultiplc-case families, one must conclude that leprosy is as contagious or more contagious than is poliomyelities.
B
. . . . .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.
III. MANSON'S TROPICAL DISEASES by
Sir Philip H. Manson-Bahr (Sixteenth Ed.)
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At page 490:
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 reticulo-endothelial system.
D At paf(e 505:
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 tuberE culoid than in the lepromatous type. and prognosis in 1he indeterminate and dimorphous groups is intermediate between these two.
F
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)
G At pa,lle 29:
LEPROMATOUS LEPROSY: This is the severe malign form of th~ · di~"Me 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 lepromt"u lenr~y is inc·tr ble. The ,.,edic1l H 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.
104 SUPREME COURT REPORTS [ 1974] 2 S.C.R.
by Sir Philip H. M:1n~on-Bahr (Sixteenth Edition)
At pnge 506 :
In the lepromatous type one should speak of arrest B rather than cure, and it may take 3-15 years to rid the skin of bacilli; sulphoncs should then be continued at half the maximal dosage for life.
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. D
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.
by E Richard L. Sutton (Eleventh Edition)
At page 364:
PROGNOSIS. It could appear that no case of leprosy recov ~rs spontaneously or as a result of treatment.
R. K. Cochrane ?11~ T. FraPk Dw~y (2nd Edition)
At page 355:
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.
Considerable emphasis was laid at the time of arguments by ·the H appellant's counsel on the great advances made by sulphone treatment. It was contended thc,t su1 phone treatment hos been so revolutional)· that leprosy should not any longer be considered to be an
S, LAKSHMI v. G. G. RAO (Mukherjea, /.)
105
In this vi.e~ of the matter in our opinion the disease from which the appllant 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 1>. 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 advnces in. p(lylotherapV., ·surgery ,or. orbqpaedic surery it is poss~~le e_itber .to cure the disease completely or .. to correct the defornuhes and ,mutilations that .are often _pre4 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 thrugh tfective treatment of the individual patkn· .an ,segrega:ion to prevent. dissemip.ation 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 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 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 c have ourselves considerable susoic;ons in cw ..,in-:! t1 1at f1h is perh1p tr·•e·, we h<:ve t<>kn <Tf'!"t 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 .prevai1 ing in the Hindu Societv. so 1onl! as marriatJeS cortinu~ to be arranged bv the parents. it will be iniquitous to allow the sins of the oarents who arrange the marriage to visit on their children who marry. Marria!le. according to Hindu Law. is a sacrament and II 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 COURT REPORTS [ 1974] 2 s.c.a.
!06
. . lid 'Divorce and dissolution of marriage are A make the m_arnagc maen to H.ndu Law bcfJre the sttute step<'ed in conC<!p~ wbtch wcc: a 1 Jaw From the moment a marriage bas been · to modify the tra1dtonal f th husband aod wife has to be considered completed the re a . 0~ f view of the welfare of the husband and only from the pom add of the children, if any, of the marriage. wife and! also! we mu_stw w'e have refused to be prejudiced by the Frod thltl pol~: h::e eiiher the appellant or the appellant's father B .. consl era 0een motivated by. The story that the respondent who may have doctor of indilfcrcnt means was aupcd and oeguued IIIlO was a >:oung 'tth the appellant by considerations of the position authoril a marnagc w and affluence of tn fathcr-m-· 1 w • L one w h' 1cn, even 1! ·' 11 be \as nothing to do w1th the qucsuon _whecr d1vorcc shuld be t~~~~ under the Hindu Marriage Act. L1kew1sc, the sug!esUJns male on behalf of the appellant that the respondent had been attemptC ing to extort money fr~m her father, also have no beanng on the question we have to dec1de here.
we· should like to make another observation. Sociologists insist and they do so very -correctly that we, sho~ld not allow our ~ds to be swayed by feelings of emouonal ·,oathtns and rcvuls.on . wtth which !prosy patients have been treated throughout hu;;;::n hJStory D in aU countries throul!bout the world and that we should 'akc up a very 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 sod.ll · ----approach to leprosy but to our mind this should not provide any justification for compelling a husband to live with a wife who is sullerg fr?m an aggravated form of leprosy and who can ve him [ and his chtldren leprosy almost any moment in their daily life, even thugh the legislature by a &tatutc has given the husband a way oC rel1ef. We ave DO _doubt i!' our minds that the Jaw-makers do. not trat the subJCct of divorce lightly and mnst have taken into constder· at!on the consequences of one spouse being compelled to Jive intimately With another pouse who suiTers from leprosy wn.:n they pNvidcd tor a wy out for the former. f
uf h Ild 0 thh light I fe Judgment of these considerations of tl1e High Court. we In dismiss the facts the and appealcircwn· . and 5 aocM 0 tbc case we make no order as to casts.
V.P.S.
Appeal clismissed.
3 issues framed by the court
Whether the term 'virulent' in the Hindu Marriage Act, 1955 should be interpreted based on ancient Hindu law precedents regarding inheritance or according to its dictionary meaning.
Whether lepromatous form of leprosy qualifies as a virulent and incurable disease under Section 13(1)(iv) of the Hindu Marriage Act, 1955.
Whether the legislature's intent in providing for divorce on the ground of leprosy presumes knowledge of the condition's curability by sulphone drugs discovered post-independence.
Colour shows how this judgement treated each authority
Rangappa Chetti v. Thirunikkul管理 Budhi & Ors.Referred¶26
Anant v. RamabaiReferred¶26
Ramabai v. RamabaiExplained¶26
Kayarchana Pathan v. Subbaraya ThevanReferred¶26
Kayarchana Pathan v. Subbaraya Thevan
Karali Charan Pal v. Ashutosh NandiExplained¶26
Karali Charan Pal v. Ashutosh Nandi
2 provisions across 1 enactments
Swarajya Lakshmi
Dr. G. G. Padma Rao
K. K. Mathew
M. H. Beg
A. K. Mukherjea
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
