The question of pre-marital HIV testing has been debated on this blog. The answer, well we still are searching for a balance between:
A) A nation’s effort in curbing a dreaded disease
B) Freeing the society of its prejudices/taboos
C) An individual’s right to protect what is ultimately a private and confidential matter regarding his/her health
And while we are fighting this battle, there are causalities like this 29-year-old woman from Satara.
The woman said she was infected with the HIV virus from her husband, who had been suffering from the disease before their marriage which took place in 1997. Their child who was born in 2000, she said, was also diagnosed as HIV positive.
Her only hope was of course the judiciary, but just yesterday, that door too has been shut. The Bombay High Court rejected her plea stating that her applications under sections 498 (a) (dowry harassment) and 420 (willful cheating) of IPC does not hold, because these laws are only meant for property-related matters.
These offences (dowry harassment under section 498A) relate to property of a person. The body of a woman can, by no stretch of imagination, be treated as property, and therefore sections of cheating and willfully cheating (Section 420) would not attract in this case,” ruled Justice Nishita Mhatre. […]
Though the court agreed that the woman’s husband and her in-laws were fully aware that he was HIV positive at the time of their marriage, it disagreed to try the accused for willfully cheating.
As a bystander this is what I understand or more suitably can’t get a grip of…
Doesn’t withholding such vital information constitute the vilest form of cheating – that of snatching her entitlement to a healthy life – something we all regard as an unquestioned given?
In reaction to the court’s verdict, the victim’s lawyer Uday Warunjikar said
This is a case of cheating and should be treated as one of the ‘rarest of rare’ cases, where a HIV positive woman has come to the court saying she was cheated by her husband. The authorities should treat such cases sensitively, but here they failed miserably. The local police did not even bother to record her statement, hence she was forced to approach the court.
As someone who is very particular about her individual freedom, I cannot even begin to imagine what this woman would have gone through – to be duped twice; her marital family and the Indian judiciary.
Comments
8 comments | Add your comment »
Amit
Jul 8th, 2008 at 3:56 pm | #
Isnt the domestic violence act useful here? Slow death given to the victim through such diseases should be considered akin to gradual poisoning, mental harassment, etc. Every time I think our judiciary has hit the absolute pits, they manage to surprise me by digging deeper!
Jerry
Jul 8th, 2008 at 6:27 pm | #
In reality our entire system is corrupt, from top to bottom, inside to outside. Therefore most of the planning simply remain on paper and never get down in actuality. Depending on such systems is only foolish. Therefore its best to take matters in own hands – go for a premarital aids test.
Ambuj Saxena
Jul 8th, 2008 at 6:29 pm | #
This is really unfortunate. I feel that the court was right in its limits as the case was fought on less relevant parts of the IPC. They would have had a higher chance of success had they charged the husband under Section 415 of IPC, which says:
“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
The omission in this case can be considered to be using a protection (like condom) which makes it relevant to the given scenario.
They should also consider invoking the Right to Life and Personal Liberty under the Indian Constitution.
St
Jul 9th, 2008 at 3:53 am | #
well – since some of our archaic marriage and dowry laws treat the woman as property – we could argue that gaining property through misrepresentation does apply here ..
moallif
Jul 9th, 2008 at 4:39 am | #
Nice one St. In fact, I was struck by the comment made by the judge – that a woman’s body can by no stretch of imagination be regarded as a piece of property – which, revolutionary as it may sound, is terribly at odds with both the social and legal codes we follow. Sample for instance the Hindu rite of ‘kanyadaan’ where the girl is a piece of property to be given (away; transferred is more like it) from father to husband.
Ambuj: thanks for answering the silent question in my head as to which sections should have been applied. Tell me something – who decides which sections to charge the accused under in such a case? the police? or the local magistrate they applied to directly?
Ambuj Saxena
Jul 9th, 2008 at 7:51 pm | #
@moallif
To the best of my knowledge, it is the prosecution lawyer.
Ashwin Jadhav
Jul 11th, 2008 at 6:35 am | #
You’ve touched a very noteworthy subject. Kudos!
ethnu
Jul 14th, 2008 at 6:24 am | #
I think a test should be mandatory.