Right to marry not absolute

NEW DELHI, Nov 16 (UNI) — In a significant judgement, the Supreme Court has held that infringement of the "suspended right to marry’’ of an AIDS patient cannot be legally compensated by damages either in tort or common law.

The ruling was given by Mr Justice S. Saghir Ahmad, heading a Division Bench, while dismissing an appeal by an acquired immune deficiency syndrome (AIDS) patient, seeking damages from the Apollo Hospital Enterprises Ltd. For disclosing that he was HIV-positive, which resulted in the breakdown of his scheduled marriage. The other judge on the Bench was Mr Justice B.N. Kirpal.

"If a person suffering from the dreadful disease, AIDS, knowingly marries a woman and thereby transmits infection to that woman, he would be guilty of offences under Section 269 and 270 of the Indian Penal Code (IPC)" Mr Justice Ahmad observed.

Mr Justice Ahmad said that the right of privacy was an essential component of Right to Life envisaged by Article 21 of the Constitution. The right, however, was not absolute, may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.

Having regard to the fact that the appellant, Dr Tokugha Yepthomi, a medical surgeon, was found to be HIV-positive, its disclosure would not be violative of either the rule of confidentiality or the right of privacy as Ms Akali with whom, he was likely to be married was saved in time by such disclosure, or else, she too could have been infected with the dreaded virus if marriage had taken place and consummated, Mr Justice Ahmad added.

"Marriage is the sacred union, legally permissible of two healthy bodies of opposite sexes. It has to be mental, psychological and physical union. When two souls thus unite, a new soul comes into existence," Mr Justice Ahmad observed and added that in every system of matrimonial law, it had been provided that if a person was found to be suffering from any disease in a communicable form, it would be open to the other partner in the marriage to seek divorce.

Mr Justice Ahmad said that AIDS was a product of indisciplined sexual impulse. "This impulse, being a notorious human failing, if not disciplined, can afflict and overtake anyone. The patients, suffering from the dreadful disease AIDS deserve full sympathy. They are entitled to all respect as human beings."

Mr Justice Ahmad said but sex with them or possibility thereof had to be avoided as otherwise they would infect others. The court could not assist that person to achieve that object.