Commenting that marriage was "anathema" without sex, a local court in the nation's capital has held that a person whose spouse is HIV positive, has the right to seek a divorce.
While declaring the verdict, additional district judge Rajnish Bhatnagar observed that a person could not live "happily" with a spouse who has AIDS or is HIV positive.
Divorce has now been granted to the man whose wife is HIV positive.
The couple which hails from Kerala married in October 2000 and moved to the capital. Five months into their marriage, the wife was found to be HIV positive in a medical test conducted during her pregnancy. Tests showed the husband had not contracted the dreaded virus.
In the wake of this incident, the husband filed for a divorce. His argument was that her ailment prevented him from leading a "happy married life", the disease being sexually communicable.
During the judgment, the court gave that sex was an integral part of marriage and in this particular case; the husband was deprived of that enjoyment. "The HIV status of the wife no doubt resulted in non-enjoyment of sexual intercourse between the parties and marriage without sex is anathema," the hearing read.
Though AIDS activists have termed the decision to seek divorce as a matter of personal choice they have expressed dismay over the negative impact the judgment would have on society's perceptions of HIV positive people.
Says Dushyant Meher, AIDS programme coordinator of Salaam Balak Trust: "This is a conflict between the rights of an HIV positive person and a healthy person. In this case, the court has given precedence to the rights of the healthy person."