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Written by: Polisetti Hema Sai Sandya
INTRODUCTION
Marriage as an institution is at the highest pedestal among all other social norms and is considered to be a sacred bond both socially and legally. Indian law facilitates divorce or judicial separation only for grave reasons otherwise provides alternatives. India being a secular state and divorce being a personnel matter, the issues are dealt with in accordance with the customary laws.
The Divorce laws of Hindus, Sikhs, Buddhists, and Jains are governed by the Hindu marriage act, 1955. The Muslim Divorces are decided on the basis of Dissolution of Muslim marriage act,1939, Indian divorce act,1869 deals with Christian divorces and the special marriages act,1954 governs all other Inter-religious marriages. All these aforementioned laws provide for the dissolution of marriage for several reasons that include, cruelty, dissertation, mental illness, etc. Leprosy was also one of them prior to the introduction of the personnel law’s amendment act, 2019.
WHAT IS LEPROSY?
Leprosy is also known as Hansen's disease is a chronic infectious human disease that is developed by a causative agent mycobacterium Leprae. It was regarded to be a communicable disease that can spread through the passage of air. An infected person tends to possess pale and reddish skin, numbness on feet or hands etc. Leprosy being an age-old disease, the ancient Manusmriti had also laid down a few rules and regulations while dealing with the institution of marriage.
Several myths over this disease circumscribed the rights of the diseased. Few such superstitions include leprosy as an infection that is caused by inheritance, poverty, and impure blood and also to be communicable through food and water. Whereas all those beliefs have no scientific basis and are therefore unreasonable. Even though leprosy is a chronic disease, scientific advancement has favoured its treatment. MDT (Multi-Drug Therapy) has facilitated its treatment and through the same, cases of leprosy are drastically reduced in our country and it is no longer considered to be a public health issue. The government initiated an integrated approach to deal with it. However, no legal protection through sufficient legislation was furthered to curb the discrimination against the diseased until the introduction of THE PERSONNEL LAWS (AMENDMENT) ACT, 2019.
ATTEMPTS TO CURB THE DISCRIMINATION
In the light of MDT, leprosy is being diagnosed and cured. Whereas the traditional old understanding of it continued to prevail. People hesitated to move hospitals with the fear of ostracization and isolation. The main reason for this includes the social stigma that is associated with leprosy. Several recommendations were made to overcome it, prior to the establishment of the aforementioned act.
● In 2007, India signed and ratified the UNCRPD - United Nations Convention on the rights of persons with disabilities. This promotes equal enjoyment of fundamental and human rights by all disabled persons.
● In the year 2010, the United Nations general assembly adopted a resolution upon the elimination of discrimination against people affected by leprosy and their family members. It had also put forth the principles and measures to improve the standard of living of such people. India is a member of UNGC in which this resolution was overwhelmingly passed.[1]
● The international covenant on economic, social, and cultural rights (ICESCR) and The Universal Declaration of Human rights (UDHR) laid down measures to improve the living standard of those people and to bring them on par with the rest of the society. Those measures include - The rights over marriage, children, or adoption cannot be knocked back from those who suffer from leprosy.
● The Indian government had also undertaken several efforts to curb the ill-practices such as discrimination towards people affected by leprosy. The RAJYA SABHA committee in its 131st report had made an appeal to protect and empower those people affected by leprosy. It considered several issues and came up with recommendations that include devising a national policy for empowering them, amendment of all the legislations that directly or indirectly affected the rights of the diseased, access to assistance, etc. for the benefit of such persons.[2]
● Thereafter, The RAJYA SABHA committee through its 138th report scrutinized the actions taken by central as well as state governments. Through this report, the committee analyzed the progress over its previous recommendations and subsequent actions taken.[3]
● The law commission through its 256th report aimed at “Eliminating Discrimination against Persons Affected by Leprosy”. Considering it to be an urgent need, it recommended to strike down all the legislations that are discriminatory towards persons affected by leprosy.[4] Despite such recommendations, no immediate affirmative action was taken by the central government or any other state government.
WRONG NOTIONS
Certain provisions under the personnel laws were directly discriminatory towards the persons affected by leprosy. They have considered leprosy to be an incurable disease. Certain provisions [amended] of Hindu marriage act,1955, The Dissolution of marriage act, 1869, The Indian, Christian marriage act, 1872, The special marriage act,1954, the Hindu adoption and maintenance act, 1956 had provided feasibility for divorce one of which include leprosy. Under any of these clauses, if the spouse is infected with leprosy for two consecutive years, then it would stand as a legitimate ground for divorce or judicial separation between the spouses.
SUPREME COURT OBSERVATIONS
The Supreme Court in the case of Dhirendra Pandua v. state of Orissa[5] also had the same traditional notion of leprosy being an incurable disease. In this case, the disqualification of people affected by leprosy in civil offices was discussed at length. The Supreme Court upheld the disqualification and noted that “legislature in its wisdom has rightfully retained the provisions in the statute that bar Persons affected by Leprosy from occupying civic offices, as there is a reasonable concern of the disease being contagious”.
However, in the same case, the Supreme Court had noted the change in the notion over the disease. It recommended the legislature to reconsider the stance on provisions of such nature.
In the case of Pankaj Sinha v. Union of India[6] the Supreme Court again noted the need to reconsider the provisions that discriminate against the people suffering leprosy. It emphasized that even though leprosy was curable, it continued to be a stigmatic disease due to lack of empathy in the society. It ruled that such practices affect the basic concept of human dignity.
Vidhi center for legal policy had also filed a writ petition seeking to declare the provisions that discriminate against people with leprosy as unconstitutional. Thereby the supreme court of India directed the central government to take necessary actions and also to repeal any such provisions that classify leprosy as a stigmatic disease.[7]
PERSONNEL LAWS AMENDMENT ACT, 2019
Considering new scientific developments to cure leprosy and In the light of all such recommendations made, the LOK SABHA passed the personnel laws amendment act,2019 repealing all the clauses of personnel laws that provide for leprosy as a ground for divorce. This act omitted -
- Clause (IV) in sub-section (l), section 10 of the divorce act, 1869.
- The words “leprosy or” in section 2 of the dissolution of Muslim marriage act, 1939.
- Clause (g) in subsection (l), section 27 of the special marriage act, 1954
- Clause (iv) in sub-section (l), section 13 of the Hindu marriage act, 1955
- Clause (c) in subsection (2), section 18 of the Hindu Adoptions and maintenance act, 1956.
This act has struck down leprosy and it stands no more a valid reason for divorce in India.
CONCLUSION
Challenges are dynamic, so are the laws. Leprosy was once considered to be an incurable or an infectious and communicable disease and the laws were made accordingly to prevent the spread of the disease. As of now, leprosy being a curable disease, the furtherance of any such provisions would be nothing but discriminatory. The practice of divorce between the couple, one of whom suffers leprosy, became obsolete but it is still followed in few countries like Pakistan and Bangladesh. In India, in view of the amendment made, such practice is denied and leprosy is no more a ground for divorce here.
[1]United nations general assembly “resolution on the elimination of discrimination against people affected by leprosy and their family members” (2010) [2]Rajya Sabha Committee “131st report on Petition Praying for the Integration and Empowerment of People Affected by Leprosy” (2008). [3]Rajya sabha committee “138th report on leprosy” (2010). [4]Law Commission of India, “156th Report on Eliminating Discrimination against Persons Affected by Leprosy” (April 2015). [5]Dhirendra Pandua v. state of Orissa (AIR 2009 SC 163) [6]Pankaj Sinha v. Union of India (2018) 2 SCC 1502 [7]Vidhi center for legal policy v. union of India and ors. (2018) 2 SCC 3120