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G.G. Padma Rao Vs. Swarajya Lakshmi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 224 of 1966 and C.M.P. No. 6400 of 1969
Judge
Reported inAIR1970AP300
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantG.G. Padma Rao
RespondentSwarajya Lakshmi
Appellant AdvocateN. Narasimha Ayyangar and ;M. Venkata Rao, Advs.
Respondent AdvocateP. Ramachandra Reedy, Adv. for ;K. Amareswari, Adv. and ;A.S.C. Bose, Adv.
Excerpt:
- - we fail to se from which part of section 13 the learned judge gets the idea that during the three years mentioned in clauses (iii) to (v) the relationship of husband and wife must have existed. provided that the court may, upon application made to it in accordance with such rules as may be made by the high court in that behalf, allow a petition to be presented before three years have elapsed since the date of the marriage on the ground that the case in one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree.....1. this is an appeal from the order of the second additional chief judge, city civil court, hyderabad passed in o. p. no. 5 of 1965 on 22-2-1966 whereby the learned judge dismissed the application filed by the appellant against his wife under section 13 of the hindu marriage act, hereinafter referred to as 'the act'.2. the material facts are that the appellant filed a petition under section 13 of the act against his wife for dissolution of marriage on the ground that the wife for a period of not less than three years immediately preceding the presentation of the petition has been suffering from a virulent and incurable form of leprosy. the marriage between the parties took place on 17-6-1963. the husband was then 28 years and the wife was 20 years of age. out of their wedlock one child.....
Judgment:

1. This is an appeal from the order of the Second Additional Chief Judge, City Civil Court, Hyderabad passed in O. P. No. 5 of 1965 on 22-2-1966 whereby the learned Judge dismissed the application filed by the appellant against his wife under section 13 of the Hindu Marriage Act, hereinafter referred to as 'the Act'.

2. The material facts are that the appellant filed a petition under section 13 of the Act against his wife for dissolution of marriage on the ground that the wife for a period of not less than three years immediately preceding the presentation of the petition has been suffering from a virulent and incurable form of leprosy. The marriage between the parties took place on 17-6-1963. The husband was then 28 years and the wife was 20 years of age. Out of their wedlock one child was born on 22-6-1964. The petition was presented on 4-1-1965 on the above said ground.

3. The wife in her counter denied the allegation that she has been suffering for more than three years from a virulent and incurable form of leprosy.

4. The petitioner produced four witnesses and marked certain documents. The respondent also produced three witnesses and marked several documents.

5. Upon this material, the learned Chief Judge, held that the wife was suffering from the disease of leprosy since more than three years prior to the presentation of the petition for divorce. He also found that the form of leprosy from which the wife is suffering is virulent and is also incurable. The learned Judge, however, dismissed the petition mainly on the ground that 'the parties have not been husband and wife for a period of 3 years which is what is also required within the meaning of the statute'. It is against this order that the present appeal was filed by the husband.

6. The principal contention of Sri. N. Narasimha Ayyangar, the learned counsel for the appellant, is that the lower Court has gone wrong in holding that since the marital relationship has been in existence for less than three years' period contemplated by section 13, although the wife has been ailing from a virulent and incurable form of leprosy, the petition filed by the husband was premature.

7. In order to appreciate this contention, it is necessary to read section 13 of the Act in so far as it is relevant.

'(1) Any marriage solemnized, whether before or after the commencement of these 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

xx xx xx (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

8. Plainly read the section does not require anything more than the fact that the marriage, whether it was solemnized before or after the Act can be dissolved on the petition of any one of the spouses that the other party 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. The section nowhere requires that before such a petition is presented the marriage must have existed for more than three years and it is only then that it is possible for anyone of the spouses to file an application for dissolution of marriage on that ground. It is true that if the marriage is to be dissolved on the ground of clause (iii), it had to be shown that the other party has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition, or if the dissolution is sought under clause (v) on the ground that the other party has, for period not less than three years immediately preceding the presentation of the petition, been suffering from a venereal disease in communicable form.

But even under these clauses what all is required to be proved is that in one case the unsoundness of mind and in the other the venereal disease must have been in existence for a period of not less than three years immediately preceding the presentation of the petition under section 13. These clauses also do not require that the parties must have led marital life for at least three years. We fail to se from which part of Section 13 the learned Judge gets the idea that during the three years mentioned in clauses (iii) to (v) the relationship of husband and wife must have existed. Section 13 in any case does not speak of any case does not speak of any such thing. We are therefore unable to agree with learned Judge that unless during the subsistence of the marriage between the spouses one or the other of them had been suffering for a period of not less than three years immediately preceding the presentation of the petition, divorce cannot be grated under clauses (iii) to (v) of S. 13. In view of the clear language of these clauses, it is not necessary to find out what the intendment of the legislature was in fixing the period of three years. Since 13 at least does not warrant any conclusion that the intention in insisting upon the existence of marital relationship of at least three years is that , for a period of three years during the subsistence of the marriage, every effort must be made to see that the complaint is eradicated and only when it cannot be eradicated by all efforts the relief under section 13 could be granted.

Section 13. as stated above, provides a cause of action to anyone of the spouses if it is found that the other spouse is suffering from a virulent and incurable type of leprosy to file an application. But it must show under clause (iv) of section 13(1) that the other spouse has, for 4 period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy.

9. It is under section 14 of the Act that it is provided that 'it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition, three years have elapsed since the date of the marriage'. It is sub-section (1) of Section 14 perhaps which was in the view of the lower Court although there has been no reference to this provision. It must be remembered that sub-section (1) of section 14 requires that the Court shall not entertain any petition for dissolution of marriage unless at the date of the presentation of the petition three years have elapsed since the date of the marriage, in other words, the marriage must have subsisted for at least three years when the petition for dissolution of marriage is presented. The sub-section however, is not absolute. It provides for an exception in the proviso. The proviso being relevant should be read in full:

'Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before three years have elapsed since the date of the marriage on the ground that the case in one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree do so subject to the condition that the decree shall not have effect until after the expiry of three years from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said three years upon the same or substantially the same facts as these alleged in support of the petition so dismissed'.

Sub-section (2) enjoins upon the Court to have regard to the circumstances mentioned therein while disposing of such a petition.

10. The lower Court did not keep in view the fact that an application under the proviso to section 14(1) of the Act was filed by the husband on 4-1-1965. That petition was supported by an affidavit in which it was alleged that the case is one of exceptional hardship to the husband because close continued contact with his wife may result in the danger of his contracting leprosy and also tuberculosis which are dangerous to his health, longevity and his profession as a Doctor. It is upon these grounds that it was prayed that permission should be grated to him under section 14 of the Act to file the petition for divorce although three years have not elapsed since their marriage.

11. The learned Judge passed the following order on the petition on 6-1-1965:

'Permitted subject to objections in the main case'.

12. In the main O. P. in paragraph 14, the husband referred to the fact that he has filed a separate application for leave to file the application for dissolution of marriage under section 14 of the Act explaining why it had been filed before the lapse of three years from the date of the marriage. In the counter, with reference to paragraph 14 the wife submitted that 'the petition is filed on false grounds with a view to extracting money from the respondent's father and no case has been or can be made out for granting leave under section 14 and leave already granted deserves to be revoked'.

13. It would thus be clear that it was not the case of the wife, that the husband obtained leave to present the petition by any misrepresentation or concealment of the nature of the case. Even at the time of the arguments no such case was made out. If these allegations were to be made out, it is only then that the Court may at the time of pronouncing a decree pass such a decree subject to the condition that the decree shall not have effect until after the expiry of three years from the date of the marriage or it may dismiss the petition without prejudice to the right of the husband to file a fresh petition after the lapse of three years. The petition was not dismissed under the proviso to section 14(1) on the ground that the husband obtained leave to file the present petition either by misrepresentation or by concealment of the nature of the case. In fact that was not the plea of the wife. The lower Court therefore consequently overlooked the proviso and by misinterpreting section 13 of the Act dismissed the petition.

We are sure that if the lower Court had kept in view section 14(1) and had kept inview the fact that under the proviso an application was filed and it was ordered and no objections as are required under the proviso were raised by the wife, the learned Judge would not have dismissed the petition. That this is the position of law and of fact is not disputed by the learned Advocate for the wife.

14. The learned Advocate for the wife however challenged the finding of the Court below that the leprosy form which the wife is suffering is virulent and incurable. Even in the Court below, there was no dispute about the fact that the wife is suffering from leprosy. The only contention was that the leprosy from which she is suffering is not of virulent and incurable type. It was contended before us that findings given by the court below are incorrect.

15. To prove that the leprosy is virulent and incurable the husband came in the witness box as P. W. 3. He himself is a Doctor. He was Civil Assistant Surgeon then in charge of the Hospital a Ibrahimpatnam. According to his evidence, he discovered that the wife was ailing from tuberculosis sometime after the wife joined him. He also suspected that she was suffering from leprosy. This was disclosed to him in September, 1963. The wife told him that she was treated for tuberculosis for about 6 or 8 months before then. She also told him that she had skin disease. He found out that the wife had contracture on the left little finger. The wife had fold him that she had that contracture since three years. the husband being a Doctor himself treated her for about eight months. He also consulted experts. He consulted one Dr. Ethirajulu. Chief Medical Officer, Hyderabad. The said person died. He also took the wife to Dr. Mathur (P. W. 1). He stated that the disease was diagnosed as Dimorphous lepromatous leprosy. After his suspicion was thus confirmed, he wrote to his father-in-law (R. W. 1) Ex. B-1 on 20-4-1964.

In that letter (Ex. B-1) he refers to a previous letter dated 7-1-1964 and asserts that he had already informed him that the wife has got chronic bilateral Kochs Lunga (tuberculosis) Survey, anemia etc., By the said letter he informed his father-in-law that she had got chronic leprosy and that he had been seriously thinking of admitting her in a Leper Home for necessary treatment as advised by some of the specialists. It is also mentioned that the disease was confirmed by a physician when on due suspicion by him (contracted fingers white anesthetic patches, glossy shining skin etc., It is further stated that when he took her to the physician he remanded 'What do these great people do? Are they only after popularity and money?' He warned the husband to be careful in his movements with her. He also informed his father-in-law that the wife was pregnant and cautioned that the baby should not be allowed to suckle her milk and that the baby should be separated from the mother. He categorically asked the questions as to who was responsible for this. Referring to an earlier request which he had made a few months before to send all the detailed investigation papers done at private dispensary or the Hospital at Delhi, he complained that 'unfortunately I have not received them and you are also aware of the fact that now-a-days I am also not keeping good health, the reason is quite obvious'. He also made some other complaints in regard to the disclosure of the disease.

16. It is in reply to this letter be says that he received from his father-in-law the letter Ex. A-3 dated 30-4-1964. He further gave evidence that he treated her for tuberculosis and leprosy. He gave her dapsone tablets. The wife also told him that she had taken plenty of tablets before marriage. The husband again informed under Exhibit A-3 dated 1-6-1964 his father-in-law that in view of the disease he felt constrained to seek judicial separation.

17. The next witness in this behalf is P. W. 1 Dr. S. N. Mathur. He is a Medical graduate of the Osmania University. He is also Member of the Royal College of Physicians of Edinborough and Ireland. He is also the member of Royal College of Surgeons of England. Since 13 years he was in Government service. He worked as the State Leprosy Control Officer, Andhra Pradesh. He examined the wife on 14-2-1964 and issued the prescription Ex. A-1. He noted that there was thickening of nerves all over the body of the respondent and also that she had a contracture of the little finger of the left hand. He gave his opinion that at the time when he examined her the leprosy was in an advanced stage and that she must have been suffering from the disease for more than five years. This opinion of his was based upon the contracture of the little finger. He also says:

'Leprosy is supposed to be curable because treatment has to be taken for a very long time. No doctor can say that any leprosy is absolutely incurable. Sometimes the treatment is carried on for the rest of the life. This disease can be punctuated by relapses and reactions. Virulent leprosy is not a medical term'. In the cross-examination, he asserted that he was working as Professor of Medicine in Osmania Medical College and also was working as Honorary Secretary of Hindu Kushta Nivarana Sangh. Hyderabad. He stated that he never examined her for about half an hour and did only clinical examination. He found the contracture of little finger and there were also thinckening of the nerves all over the body. He stated that there are three types of leprosy. One is lepromaous type i.e., infections type: the second is tuberculoid; and the third is Dimorphous. 'So, far as the woman is concerned, it was a Dimorphous type. I cannot say whether this was affections because nothing can be aid about Dimorphous type. It was not of tuberculoid type. I don't agree with you if you say that it is not of contageous type whenever are affected..' He further stated:

'Leprosy is curable and that is what all doctors says but this disease is peculiar. The cure depends upon the continuos treatment given'.

He further stated that 'the leprosy can be arrested by treatment but the treatment is a long one'.

18. The third witness in that regard is Dr. Samuel who has been cited but the respondent as R. W. 3. He has been working as a Doctor attached to Victoria Leprosy Hospital, Dichapally, Nizamabad Dist. H is also Medical Superintendent pat that Hospital, and has been working in that capacity for the last seven years. His total service is 23 years. He is a Licentiate in Tropical Medicine of Calcutta University and had special training under Dr. Cochrane at Chingleput, Madras. He is also a Member of Leprologist Association, India. He examined the respondent on 16-12-1965 obviously during the pendency of the case. He produced the out-patient register Ex. B-16. After examination he issued the certificate Ex. B-17. He found her suffering from Lepromatous Hanson's disease. Her blood was examined and bascilli was granular. According to him such a symptom shows that 'she was on the way to recovery. So I opined her condition as non-ineffective'. In an answer to a specific question, he stated that the disease of the wife 'was not a dimorphic type of leprosy. It is a kind of classification which we do not adopt at our hospital'. To a direct question as to whether the leprosy of the wife is mild or virulent, he answered:

'I cannot say because she was taking some treatment for how long she was under treatment I did not know. When I put her to bacterial examination it was noted that bacilli was granular. So I said it was improving'.

He thought that within 10 or 12 weeks she would be completely cured but she had to continue the treatment. He admitted that she had a contractor on the little finger of her left hand, but opined that it was due to infection of ulnar nerve and also said that in her case the contracture could be cured. There was very little contraction. In this case 'the noted contracture could be cured by massage'. He did not ask her as to how long she had developed the contracture. He says that 'First numbness, then thickening of nerves, then deformity, such are the stages of setting in of leprosy. Such a development is found in neural leprosy and not in lepromatous leprosy as was the diagnosis of the disease in the respondent'. According to him, when recovery is on, the contracture may develop and says 'If there is a contracture in lepromotous type of leprosy, it will be in the advanced stages which means the healing stages. It is a chronic stage because the disease itself is a chronic disease'. He further stated that 'after the disease is arrested, the patient can be treated for a year or two or never stops as the disease is (sic) (not?) cured'.

There may be relapses. He admitted that the lepromatous type of leprosy is 'the worst kind of all types of leprosy'. He knew only two kinds of leprosy, Lepromatous and neural'. He does not know the classification called 'dimorphous leprosy'. He showed his ignorance as to whether lepromatous type of leprosy is amlignant and stated that he has not been familiar with the book Practice of Dermatology. 'Virulent' is not an expression used about leprosy. 'We say infectious or not' and asserted that 'All kinds of leprosy are absolutely curable'. He had to admit that there were faint patches. He found them on examination of the extremities, the back and the abdomen. He does not agree that life long treatment is necessary as is mentioned in Ex. B-18 (c). In the instant case, he thought two or three years treatment was sufficient. He also agreed that leprosy is not highly contagious but nevertheless is contagious.

19. Exhibit A-1 is the prescription of Dr. Mathur (P. W. 1). The disease is shown as Hansons disease. Dapsone tablets are prescribed. Ex. A-2, which is the prescription of Dr. Ethirajulu who died, says that the wife was suffering from Hanson's Disease. The said Doctor also prescribed Sapsone tablets. Ex. A-9 is the clinical examination report of Dr. Pargaonkar. Since the person who signed the certificate was in the U. S., his father came in the witness box as P. W. 4. He identified the signature of his son on Ex. A-9 (a). The witness stated 'E. S. R. represents Erplyoryle Sedimentatic Rate'. Such a blood test is taken in cases of leprosy. The witness however was not personally aware of the test carried out and testified to in Exhibit A-9.

20. A careful analysis of the above said evidence can leave no one in doubt that the leprosy from which the wife is suffering is either of dimorphous lepromatous type or is of lepromatous type. Although the husband (P. W. 3) and Dr. Mathur characterise the form of leprosy which the wife is suffering groom as dimorphous lepromatous leprosy. R. W. 3. asserts that it is lepromatous type and shows his ignorance of the classification of such leprosy as dimorphous lepromatous type. It is however clear that all the three Doctors are agreed that the wife suffers from leprosy, that she has patches all over the body, that there is a process of thickening of nerves and that her little finger has contracture. It is also agreed that the disease from which the wife is suffering is at the advanced stage and in fact R. W.3 asserts that it is the worst type of leprosy and that when contracture appears it will be in the advanced stages and that it is a chronic stage because that disease itself is a chronic disease. They also agree that Virulent' is not a medical term.

They only deal with the cases as cases treated at the initial stage and case treated at the advanced stage. Where they however differ is that while R. W. 3 claims that all kinds of leprosy are absolutely curable and the disease from which the wife is suffering can be cured within a span of 2 to 3 years. P. W. 3 and P. W. 1 do not make such a general statement. They are cautious when they say that the disease is curable in the sense that it can bee arrested but there is always the possibility of relapse and the treatment in some cases has necessarily to be lifelong. It will thus be evident that there is a large area of agreement between the three doctors who gave evidence before the Court and wherever there is difference of opinion it seems to be in a negligible area. After a careful reading of this evidence in view of the indifferent health of the wife and the summits, we are more inclined to agree with the diagnosis of R. W. 3 when he says that the form of the leprosy she is suffering is lepormatous.

We, however, would like to make it clear that P. W. 1 and P. W. 3. may not be wrong in their diagnosis when they say that disease of the wife falls under the classification of dimorphous lepromatous leprosy. There is a large common area between the two classifications and it is sometimes difficult even for an expert to put the disease under one or the other classification. We are, however, clear, in our opinion, that whether it is of lepromatous type or is of dimorphous lepramatous type, in either case the disease of the wife is at the advanced stage and is in an aggravated form, and if it is required to be arrested it will take considerable time for treating her, and even if it is arrested, there would be always the possibility of relapse and even after the arrest the deformity developed in the finger cannot be cured. It can at best be corrected by a new device of surgery.

21. The synonyms of leprosy are Hanson's disease, Hanson's infection etc. The leprosy is defined as a chronic contagious granulomatous disease due to infection by myco-bacterium leprous (Hanson's Tropical Diseases 16th Edition page 478) Rogers and Megaw 'Leprosy is a chronic disease caused by the acid-fast Myco-bacterium leprous'.

22. The main feature of the disease is the formation of granulomata which occur chiefly in the skin and nerves and cause slowly developing defromities and tropic lesions'.

23. After the Congress held in Madrid in 1953 the following classification of leprosy seems to be more acceptable according to the recent work. This classification is mainly based on the power of resistance. Low resistance produces the definite histological picture of the loproma which appears in all tissues. High resistance produces a different picture known as tuberculoid. The first is the result of absence of tissue reaction; the second that of effective reaction. There may, however, be a prelopramatous and a pretuberculoid inclubation period in which the reaction to the bacilli is slight. The affected tissues during the period show changes which do not indicate the type which may eventually evolve and this form is known as 'indeterminate'. There is a fourth type, in which the cellular reaction is intermediate between lepromatous and tuberculoid, known as border line (Dimorphous). Thus there are four types of leprosy (a) Lepromatous (b) Tuberculoid: (c) Indeterminate: and (d) Border line (Dimorphous) -Manson's Tropical Diseases, Pages 488 and 489.

24. Rogers and Megaw, however, give the following classification (1) Cutaneous or lepromatous: (2) Neural; (3) Mixed, in accordance with the tissues mainly affected. After the Brazil Leprosy Conference held in Brazil in 1947, the following classification came in vogue; (1) Uncharacteristic or unidentified; (2) Tuberculoid; and (3) Lepromatous, (Rogers and Megaw) page 321.

25. It is already seen that after the Madrid Conference of 1953 the classification mentioned above seems too have come in vogue.

26. At the biennial session at Jamshedpur in 1955 the Indian Association of Leprologists adopted the following classification: (1) Lepromatous; (2) Tuberculoid; (3) Maculoaneaesthetic; (4) Polyneuritic; (5) Borderline; and (6) Indeterminate. It has, however, been pointed out that from the point of workers in India the three most important classes are Lepromatous, Tuberculoid and Maculoanaesthetic. It is believed that vast majority of cases in India fall in one of the three classes. The other there classes are considered of secondary importance. (See notes on Leprosy by Dharmendra, page 75).

27. What must follow is that while Borderline, which is also called Dimorphousis a form which is m ore serious that Tuberculoid but not as serious or grave as lepromatous. It is an intermediary form between the two.

28. Now, lepreomatous leprosy is the type seen in persons with a negligible resistance, and leprosy bacilli are widely disseminated through the skin, nerves and trticulo-endothelial system. In this type patches are found on the body particularly on the buttocks nerves get thinckened and contraction also appears. In this type the thickening of nerves and associated sensory or motor dys-function is usually seen in cases where the disease is seen advanced. (pages 490 to 494 of Manson's Tropical Diseases, 16th Edition).

29. Roger and Megaw at page 321 and 322 observe that in Lepromatous type in the earliest skin lesions infiltration of the papillary layer of the corium, produces smooth erythematous patches, and next the bacilli cause thickening of the tissues later still the infiltration spreads deeper than the follicles and causes a general smooth thickening of the skin patches. These in time may go on to the formation of actual nodules in which there are swarms of the acid-fast rod shaped leprabacilli, which tend to group themselves in the characteristic intracellular bundles. In addition to being found in large lepta cells the bacilli often invade the lymphatic channels, and spread through them to the deeper skin layers. In this type contractures of the ring and little fingers occur. In advanced cases the radial nerves also frequently become involved with eventual atrophy of many of the intrinsic muscles of the hand and the characteristic claw-hand deformity and contractures resulting from this.

30. According to Dharmendra, in this type the chief lesions are found in the skin and mucous membranes. The nerves are infected but there is less nerve thickening. Leprosy bacilli are present in the lesions in large number and routine slit smears from the affected skin and nasal mucosa are moderately or strongly positive. The cases are therefore 'open' i.e., infectious. In the lepromatous type of leprosy, the prognosis is usually grave. Early subsidence of the disease is rarely seen, and when the disease subsides, relapses are common, serious deformities and disablement are likely to remain when the disease finally becomes arrested (Dharmendra pages 80 and 81).

31. Dharmendra characterises the Lepromatous leprosy as the serve or malign form seen in persons with little or no resistance to infections. In this form the disease widespread in the body with notable involvement of skin and nerves. It is characterised by the presence of diffuse infiltration, flat or thick patches, nodules and ulcers. Bacilli are present in large number and the slit moderately or strongly positive. The learned author therefore considers this type as the 'severe or malign' type of leprosy. (page 10, 12, and 21).

32. On some what similar lines, Manson's Tropical Diseases (16th Edition) at page 506 opines:

'in the lepromatous type should speak of arrest rather than cure'

Leprosy may sometimes become the most repulsive loathsome disease known to repulsive loathsome disease known to man. The infectivity of the case is on the high degree in such type. According to Rogers and Megaw, lepromatous leprosy is 20 times more infective than the nerve. Advanced mutilated nerve cases are obviously beyond remedy, but the infectivity tends to die out and the patients may live for several decades until released by some inter-current disease. Relapses are common and liable to occur if treatment is stoped too soon after apparent recovery. It should be continued until negative e examinations for lepro bacilli have occurred over a long period. Re-examinations must be continued for a considerable long period. In late nerve cases and advanced cases treatment can do little for the unfortunate victim.

33. It will thus be seen that the learned authors are uniformly of the opinion that lepromatous leprosy is a severe and malignant form of leprosy. It can be only arrested but in spite of it, relapses are common. A constant and vigilant treatment for a considerably long time prehaps life long is necessary. This type is infectious and the prognosis in this type is usually grave. Inspite of the arrest of the disease serious deformities and disablement continue. It can therefore be safely said that this type is virulent and incurable. It is a common ground that virulent is not a medical term. But the meaning which this word carries is covered by the description of this form of leprosy when it is called as grave or malign type as we have seen above. It is incurable in the sense that its spread can be arrested but relapses are common and therefore a very long period of treatment almost for the rest of the life is necessary. It is true that the quarterly magazine 'Leprosy in India', April 1968 part puts the Leprosy as curable. The following is the observation of Dr. Dharemendra who wrote the article.

'Leprosy is curable, and in recent years there have been great advances in the treatment of this disease. Early treatment gives best results, and prevents deformities. However, treatment benefits advanced cases also and the existing deformities can be corrected by reconstructive surgery'.

This opinion of the learned author is not inconsistent with what is quoted from his notes on leprosy. Moreover, the learned author in the same article earlier observed that leprosy is a disease like tuberculosis and other infective disease. These are two types, one infective and the other non-infective. We have already seen that the learned author accepts lepromatous leprosy as infective and of grave type. In this article also, he says that the sulphone drug treatment has its certain limitations, the important one being the very long time taken to render patients non-infective. The other authors whom we have quoted are more emphatic as Dharmendra also is that lepromatous leprosy is a malign form and infective one. It can be arrested but relapses are common and treatment for a long period almost life long is necessary. And even after that deformities continue although such deformities can be corrected by surgery. Nevertheless the disability remains. It is in this sense that section 13 uses the word incurable, then the legislature in their wisdom would not have used the word 'incurable'.

34. The reasons given by the learned Judge for holding that the disease from which the wife is suffering is incurable within the meaning of the Act cannot be said to be wrong. Similarly, the reasons given by the learned Judge for holding that the disease is virulent cannot also be said to be very much wrong. We have already pointed out that the term 'virulent' is not prevalent in the medical line and the meaning of that term has to be understood keeping in view the nature of the disease. We have no manner of doubt that the disease of the wife is at the advanced stage and is of malignant type and is highly infectious. It can therefore safely de deduced that it is of a virulent type. We therefore agree with the conclusion of the Court below that not only the wife suffers from leprosy but the leprosy is of the lepromatous type and that it is virulent and incurable. The husband therefore is entitled to get the marriage dissolved.

35. It is really unfortunate that in spite of the fact that the disease was existing at the time of marriage and was known to both the wife as well as her father (R. W. 1) it was withheld from P. W. 3. before he was married. The respondent, the wife, was not given appropriate treatment even after the disease was detected and was known both to the wife as well as her father. That this is so is quite clear from the letter Ex. B-1 dated 20-4-1964 and the reply which admittedly was given to this letter by the father-in-law, Ex A-4 dated 30-4-1964. In the reply R. W. 1 does not show his surprise at the disclosure of the disease as he was already aware of it and that is why he promised to send the available records for her treatment to P. W. 3 as soon as possible. The record, however, was never sent to the husband. Although very serious allegations were made by the husband in the letter Ex. B-1, they were quietly pushed out in the reply. The lower Court, in our view, was right in observing that the legitimate inference from the tenor of the said letter is that to the knowledge of the father the disease must have been there much earlier.

We have therefore, no hesitation in agreeing with the conclusion of the Court below that the respondent was suffering from the disease of leprosy for more than three years prior to the date of the presentation of the petition for divorce.

36. For the reasons which we have endeavoured to give, we allow the appeal, set aside the order of the Court below and grant a decree for divorce in favour of the husband against the wife under section 13(1)(iv) of the Act. The appellant will have his costs of both the Courts.

37. Appeal allowed.


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