• Divorce on grounds of HIV

My sister recently tested positive for HIV. Her husband wants to file for divorce on these grounds. They have a 3-year-old daughter. 
Can she fight in court and refuse to grant divorce?
Can she retain custody of her daughter?
If we want to kill time can we do that?
Asked 4 months ago in Family Law
Religion: Hindu

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13 Answers

wife can contest divorce proceedings 

 

2) she can seek sole custody of her daughter 

 

3) contested divorce proceedings take over 5 years to be disposed of 

Ajay Sethi
Advocate, Mumbai
94965 Answers
7576 Consultations

5.0 on 5.0

If she is not willing to give divorce, she can very well challenge the same on the grounds she may rely upon.

The child is aged less than 3 years, hence she can claim to retain custody if he is filing a child custody case, otherwise the child is in her custody now, hence she need not initiate any step in that regard

T Kalaiselvan
Advocate, Vellore
85166 Answers
2222 Consultations

5.0 on 5.0

a husband can file for divorce on grounds of cruelty or adultery if his wife has tested positive for HIV under Hindu law. However, HIV status alone is not sufficient for divorce; the husband must prove cruel behavior or adultery. If your sister contests the divorce and the husband's claims are not supported by evidence or do not constitute cruelty or adultery, the divorce may not be granted. Custody of their daughter will be decided based on the child's best interests.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

Contracting incurable disease is a ground for divorce. Divorce will generally be granted. However, if you can prove that your sister's husband is also positive for HIV and there is a probability that he transmitted it to your sister, then you can defend effectively. Child Custody of the daughter will naturally be with your sister till the child is 8 years despite her HIV condition. You have to prove the child safety.

Srikanth Chintala
Advocate, Hyderabad
19 Answers

Not rated

There is no compulsion to give divorce 

 

she can contest the divorce proceedings 

Ajay Sethi
Advocate, Mumbai
94965 Answers
7576 Consultations

5.0 on 5.0

- Under sub-clause (1) of section 13 of the Hindu Marriage Act, the venereal disease is a ground for divorce. 


- Further, as per the Madras High Court in the matter of P.Ravikumar vs Malarvizhi @ S.Kokila, the HIV positive is a communicable form  of diseases , and hence it is a ground for divorce.

- If her husband files a divorce petition on this ground , then she can deny the same , and can take plea that she is under the treatment and there is possibility to cure of this disease. 


- As per law, the mother is the preferred custodial parent when the child is less than five years old. The opinion of a child who is over nine years old will be considered.

- Hence, for getting custody of daughter she can file a petition before the family court as she is only 3 years old. 

Mohammed Shahzad
Advocate, Delhi
13377 Answers
199 Consultations

5.0 on 5.0

There is no compulsion on her to give divorce to her husband just because he is pressurising her owing to the dreaded disease she has contracted. 

However she can file her objection and drag on the case as much as possible. 

T Kalaiselvan
Advocate, Vellore
85166 Answers
2222 Consultations

5.0 on 5.0

For filing of divorce case, your brother in law does not require to take permission or consent of your sister. Law empower your sister to contest case, to file cases. Your sister is under no compulsion to give divorce. HIV is a curable disease. Your sister is natural guardian of her girl child of three years. As per law till the age of 5 years mother is natural guardian and after 5 years father is natural guardian but in case of girl child mother is given preference and if husband claim guardianship and custody then your wife can refute and can contest the case. 

Siddharth Srivastava
Advocate, Delhi
1256 Answers

5.0 on 5.0

Dear client,

The Hindu Marriage Act, the Special Marriage Act, and other personal laws control divorce rules in India. It might not be enough to file for divorce based only on the fact that your sister tested positive for HIV. The husband may seek a divorce on the grounds of cruelty or irreversible mental disease, but it might be difficult to support these arguments in court. Usually, considerations of the child's best interests guide custody choices. Your sister might be able to keep custody if she can prove she can create a secure and caring home. HIV status shouldn't be the only deciding factor in disputes over custody. The wellbeing of the kid may be the court's primary concern, thus evidence of appropriate parenting will be crucial. Your sister is under no obligation to consent to a divorce.

 

Hope this helps you.

Anik Miu
Advocate, Bangalore
9028 Answers
110 Consultations

4.7 on 5.0

Having disease contracted after marriage is no ground for divorce.

Therefore, it is a good case to contest the same. 

Divorce suit or sickness is not a bar to keep custody of the child.

 

Devajyoti Barman
Advocate, Kolkata
22886 Answers
492 Consultations

5.0 on 5.0

1. Normally the custody of a child below 5 years will be with the mother only but the visitation rights will be given to the father. However, since mother has HIV, the custody of the child may be given to the father.

2.  Incurable disease of the spouse is one of the grounds under the Hindu Marriage Act.

Shashidhar S. Sastry
Advocate, Bangalore
5164 Answers
314 Consultations

5.0 on 5.0

Hi, you can contest the case. Now HIV is curable diseases. Solely on the above ground Court will not grant divorce. As the child is below 5 years. Normally, the custody of the child will give to mother.

Pradeep Bharathipura
Advocate, Bangalore
5604 Answers
336 Consultations

4.5 on 5.0

Yes it can be refused and objected but if he doesn’t want any to live with her no point in living forcibly 

Prashant Nayak
Advocate, Mumbai
32093 Answers
183 Consultations

4.1 on 5.0

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