Hiv criminalization
venkat
(Querist) 06 February 2013
This query is : Resolved
Dear All,
recently i got a case, here is brief details
X got married Y three year ago, recently Y infected with HIV, after that X came to knew Y family members have HIV before marriage. luckily X and X kid are safe zone as of now. Y started asking money if X need a KID and divorce, somehow Y has file cases under 498A but after en-query police people are dismissed the case.
while proceeding Honorable judge asked me to provide proper information where KID have risk living with Mother and grand mother ( both are HIV patients )
after meeting with Doctors who has given treatment for Y, he is saying absolutly risk involved if KID living with HIV patient, but he is not ready to give any letter and recommendation because he is saying it's every body knew the risk that's why there is huge awareness campaign going on HIV.
Can any one help me how can i prove to Judge and support my client and save one life.
R.K Nanda
(Expert) 06 February 2013
state actual facts of case and not in xy.
ajay sethi
(Expert) 06 February 2013
HIV can be transmitted from an HIV-positive woman to her child either during pregnancy, or during labour and delivery, or by breastfeeding.
if child is not HIV positive now chances of becoming HIV positive does not arise merely by staying with mother
venkat
(Querist) 06 February 2013
thanks for quick reply, after the disscussion with doctor and my search on portals i have prepaid something like this.
• If the HIV is not so dangerous why Government conducting so many awareness camps and why they are establishing rehabilitation and communication centers.
• All HIV cases and our research’s confirmed that compare to HIV + Men, HIV + women have likely more dangerous to transmit the virus, where they will have reproductive and other infections will attract very easy.
• In generally there will be a lot care for the people who are living with HIV Positive persons, because of multiple diseases which are highly transmittable ( TB, chest cold, Viral pharyngitis, Ringworm, Gonorrhea, etc.,) and these are common effects to HIV+, then just imagine the risk of the child living with HIV positives.
• When you see if the HIV positive person will get hospitalize, doctors particularly intimate to attendants to not permit Childs to visit reported places, Because of the risk association.
• Some researches (CDC – Center for Diseases Control) found that Women who’s CD4’s level has down and virus level is high there will be likely more chances to transmutation, her CD4 is very low and even her salvia also effected, (Refer the reports), She and her mother suffering with multiple diseases.
• When the person under ART ( Anti Retrieval Therapy ) they could not handle themselves due to high power of medicines and low power of Immunity system (like sound less sleep, laziness, angriness, Harmon’s in balance),
When it comes to general view there are less percentage of chances to get transmit HIV+ other than blood and sexual contact, but still there is chance.
please suggest.
Guest
(Expert) 06 February 2013
Dear Venkat,
Yourself being a student, I feel it is your classroom exercise, which you want to get solved through experts, instead of making proper study by yourself.
Some pertinent questions arise out of your query, as follows:
1) Can you take up legal cases of clients when you are still a student?
2) On what grounds you classified this HIV case as "criminalization"?
3) As per your latest post, when you have already discussed with other doctors and made research on internet portals, do you feel that legal experts can throw more light on diseases and clinical remedies, as compared to the medical practitioners?
4) At the end, you has simply asked, "please suggest." So, suggestions of what nature do you want when you have already explained the outcome of your own discussions with medical authorities, research and discovery?
R.K Nanda
(Expert) 06 February 2013
fully agree with Dhingraji.
venkat
(Querist) 06 February 2013
Dear Mr. Dhingra Sir, Client is my close friend, i am helping him to get the justice.
1 - yes i am not, but i can take it as challenge. however i am already completed. started practicing.
2- Y family has cheated X on hiding the diseases before marriage.
3- i am just wondering how legal experts are saying it's not communicable diseases.
4- i am asking the suggestion on the matter which i have writen is correct or wrong i mean experts point of view.
Guest
(Expert) 06 February 2013
Dear Venkat,
Only qualified medical practitioners, not the legal practioners, can give you the right advice, whether the disease is communicable or not.
Beter consult medical experts/ medical college professor.
Question of cheating would come to fore only after you are able to get the appropriate opinions of medical experts. But, question atrises, how would you propose to prove that the disease was hidden by her family, if your friend or his family has not enquired about her health conditions or did not ask for her medical check up. Solid proof is a must, if you want to take it as a challenge. Any challenge may bounce back on you if fighting without any solid proof.
By the way, how your friend or you would have reacted about the instance if she would have got the disease only after marriage?
venkat
(Querist) 06 February 2013
Thank you Sir, will do as you advice,
Cheating - in normal cases most of the people never ask to go with HIV test before marriage, that is their responsible to disclose the diseases which is highly dangerous, we came to know her father died with AIDS and her mother suffering HIV from years. we have proofs. wonder thing is She don't have HIV at the time of first delivery, however doctors who give treatment to her confirmed that she might be in Incubation period or she would have sexual contact with other person ( because my friend and KID are not infected), chances like (50:50).
incubation will (1:10,00,000), after thinking her virus load and active steps i am getting doubt on second way, but not able to prove as we don't have idea where she is staying. they are shifting house and changed all mobile numbers.
correct me if i am in wrong way.
Guest
(Expert) 06 February 2013
Unless any concern is shown by any party, nobody tells about any medical history of the family.
Don't think on one sided. If you point out about responsibility, only the other party cannot be held responsible. The other party has also to feel the same responsibility. Just a simple question, would your friend or you like to intimate, did your friend intimate anything about medical history of his family to the girl or her family before marriage took place?
venkat
(Querist) 06 February 2013
Agreed with you,
But my friend family is former background and they are good reputation in their village. My friend intimated about his accident which happen when he is in graduation, ( which is not necessary) when my friend family requested about their fathers death, they said different story.
i knew him from child hood, he is topper of our batch and state level sportsman and B school student, he is helping students from his graduation who become orphans due to bhuj earthquake, i just want him to get normal so that he will help few more lives.
when i approached girl side elders who did marriage they all are know about diseases before itself.
Just imagine sir as a mother she is bargaining on KID's. they are ready to give KID and divorce but need money. when i called them they directly saying if you want KID pay money else they are not responsible for kid health.
how can i proceed this and my main point is custody of child and divorce.
Adv Raj (High Court)
(Expert) 06 February 2013
Venkat ji,,,, HIV + sath rehne se kabse phailne laga...? its a new discovery k HIV positive k sath rehne se HIV ho jayega..!
U knw HIV + patients ko neglect krna is another crime.. HIV is not criminilazation.
Its not cough or fever jo sath rehne se ho jayega, unless physically involved...!
proving in court that HIV matter was hidden before marriage would not stand as the defence lawyer would easily take a stand that HIV + shaadi k baad hua hai... fir kya karoge sir jiii ?
venkat
(Querist) 06 February 2013
Dear Raj Sir, can you please read my earlier posts'
somehow that is also a point.she may be incubation period, in incubation normal HIV test will always say negative unless you approach PCR qualitative test which is costlier.
here my client should feel happy as he and kid is not effected HIV. and feel bad as loosing the family and happiness, but doctor's still not given clean cheat to both because some time HIV window period may be 6 months. they suggested to do another PCR test after six months.
what if both effected, still HIV is not criminalaization. that means HIV people can spread as much as possible.
Adv Raj (High Court)
(Expert) 07 February 2013
which means that people still wont avoid being physical with HIV+... right ..!
At one point u are saying that she is affected with HIV and at the very same moment you are saying that she didnt had HIV at the time of first delivery..! then how can you can that she had HIV before marriage..? Incubation and all is very hard to be proved in court and may not even stand at the court of law..!
Secondly can i ask u one thing..? you said that her whole family had HIV and her father died of HIV, then didnt the groom and his family enquired anything about her/family..? Arre yar, if her whole family was HIV+ then atleast their neighbours and colony members would be aware of the same.. kyu ? am i wrong..?
This all should have been confirmed before marriage , why is this matter so much rising after marriage specialy after having one and two children...?
Guest
(Expert) 07 February 2013
Mr. Venkat,
There is no use in extending or stretching thread too far. Once married, your friend is liable to bear with that and the expenses of her treatment, rather filing a criminal suit against her without having any solid ground. Nobody can be held responsible for his own or his family's mistake of non-verification of facts before marriage.
The question arises, what was the hurry in marrriage if the facts were not properly verified from other sources also. Before marriage, every person tries to verify the facts from several other sources, other than the famuily members to be sure of not getting kept in the dark. If your friend or his family restricted their verification from her family only, is the mistake of your friend and his family only, not of anyone else.
However, if still you are bent upon to file a case against her or her family, you can do that to get the taste of acceptance of challenge, as you have decided to take.
Best of luck!
venkat
(Querist) 07 February 2013
Raj Sir - i agreed with you on incubation which is tough battle.
Groom family shifted their house before marriage proposal, and their relatives which that is his responsible for all traditional activities in future as she don't have father . Marriage also did at bride's native place.
but as Dhingra sir said it's mistake to trust them.
Planning to file the case for child custody and Divorce. please suggest me what is quick process to get the child.
thanks for your valuable support, looking more suggestions.
Adv Raj (High Court)
(Expert) 07 February 2013
The only way out of this is ,,you need to prove that the girl is HIV+ and child is a breastfeeding child,,,!
Or you need to come to a conclusion in court that since the mother knows that she is HIV+ and she is in deep mental agony, the child cannot be safe in mothers custody not due to HIV+ but due to her mental stress and agony she would not be able to maintain her child and may even cause hurt to child or even try to distroy the child as she doesnt has any other means to maintain her child..!
If the above can be stressed in court then the childs custody can be given to father.
Good luck
Dhingra ji,, correct me if iam wrong anywhere...! when Venkat ji has already taken a strong stand to help his friend then i see no other way out..!
Guest
(Expert) 07 February 2013
Raj ji,
In deed, you have rightly advised. But he will have to provide strong proof in support of his case. Any illogical plea or casual approach cannot separate the child from her mother.
venkat
(Querist) 07 February 2013
Dear Raj and Dhingra sir what if the girl infected HIV due to sexual contact with other person? that will come under cheating and what if she is continuing the relationship with that person.
why i am getting this doubt is. without proper reason she left the home and taken very good precaution and forced to file the case if need a child and now she is asking one time settlement instead of monthly payment under maintenance.
in fact she collected all documents related to my client property.
R.K Nanda
(Expert) 07 February 2013
go to forum section of LCI.
venkat
(Querist) 07 February 2013
Dear Sir, unable to reach the section in portal, can you please brief it.
Guest
(Expert) 07 February 2013
Mr. Venkat,
I wonder, why you are stretching the thread with your hypothetical presumptions. About your presumption," what if the girl infected HIV due to sexual contact with other person," probably, you don't understand the meaning of the term, "proof." File the case in the court and fight duly supported by proof.
Sorry, no more reply would be justified from my side, as I am sure now that your query is merely a hypothetical query or a classroom exercise.
R.K Nanda
(Expert) 07 February 2013
I fully agree with Dhingraji.
venkat
(Querist) 08 February 2013
Dear Dhingra Sir,
when you see the over all case, why i am looking in this view will clarify.
After her virus load status doctors saying incubation or other sexual relation which is (50:50).
if am taking as incubation but why KID and husband not infected even after consequence of second pregnancy, which she confirmed in April 2012, but she is in Native place ( March 2012 to May 2012)
here is detail - she is at native place three months before her HIV positive where my client has no sexual relation.
luckily she stopped breast milk feeding to kid from Jan 2012,due to insufficient.
even doctor who has given complete treatment to her from June to August they are wondering why she moved from home after spending lakhs of rupees on her health.
after showing the report at ICTC (AIDS) centers most of the Professionals are saying it might be sexual relation rather than incubation and other transmission due to high low level of CD4 cells.
but still i am not able to discuss about this with my friend and anyone where it as integrity of the person.
please correct me sir.
Guest
(Expert) 08 February 2013
Mr. Venkat,
Your style of providing piecemeal information in different installments with assumptions won't help you in any way.
In fact, you need to contact some local lawyer or even your own faculty members and discuss the case with him/them showing all case history and documentary evidence to him/ them.
When you have your law college faculty at your service, it is not understood, why you prefer to waste time here.
venkat
(Querist) 09 February 2013
thank you sir, i feel it's an sensitive case and should feel better to discuss with experts rather than faculty.
however i got best information through the portal (LCI),
looking more help on this regards going forward.
R.K Nanda
(Expert) 09 February 2013
ur welcome.
Raj Kumar Makkad
(Expert) 10 February 2013
Nothing to add more as the same shall again confuse the querist.
Raj Kumar Makkad
(Expert) 10 February 2013
Nothing to add more as the same shall again confuse the querist.
venkat
(Querist) 24 February 2013
BEFORE THE HON’BLE FAMILY COURT:
I.A.No. of 2012
In
O.P.NO. OF 2012
Between:
WRITTEN ARGUMENTS FILED ON BEHALF OF THE PETITIONER
1 It is respectfully submitted that the marriage of the Petitioner with the Respondent herein took place on 26th May, 2010. as per Hindu shastric rites and customs. It is an arranged marriage by the elders.
2. It is submit that prior to the marriage the father of the Respondent died and when elders of the Petitioner herein asked the reason behind the death of the Respondent’s father, they replied by saying that he is an alcoholic and slightly effected with TB and hence it was the reason for his death. The Petitioner and his parents trusted the same and further proceeded with the marriage.
3. It is further submitted that being an employee in a private sector the Petitioner and the Respondent had their matrimonial home at Hyderabad in the above mentioned Petitioner’s address. On 6th September 2011, the Petitioner and the Respondent were blessed with a baby boy. In the month of April, 2012 the Respondent had became pregnant again, in due course of time in the month of June, 2012 the Petitioner and the Respondent went for general check-up to the Hospital. In general test Dr. Vijaya Lakashmi Kodali, Gynaecologist has confirmed that the Respondent herein had infected with HIV and the Doctor suggested the Petitioner and his son to undergo with the HIV tests. After thorough tests it is revealed that the Petitioner and his son are not infected with HIV.
4. It is respectfully submitted that out of love and concern the Petitioner visited other Doctors and took the second, third and fourth opinions as well and finally Dr. Vijaya Lakshmi suggested the Petitioner to meet Dr. V. Lakshmi, Head of the Department at NIMS, Micro Biology & HIV division, after few tests they also confirmed it is an advanced stage to the Respondent, and suggested to meet Doctor Subba Lakshmi, Profession Medicine. As per Doctors’ advice, immediately they terminated the pregnancy and started medication i.e., ART (Anti Retrieval Therapy) to control the HIV virus in the Respondent’s body.
5. It is submitted that in the above process Doctors where wondered and shared few doubts regarding immunity system where it got damaged. In this connection, the Petitioner started enquiring about the death of the Respondent’s father and got to know that he died with AIDS and her mother also is having AIDS and she is taking medicines from several years.
6. It is submitted that when the Respondent relatives approached the Petitioner’s Parents about marriage proposal they intimated that the father of the Respondent had died with heavy drinking habit and slightly infected with TB in last stage. When the Petitioner expressed the same with the Respondent, she confirmed that she knew it long back and she has threatened him if he share this information with any of his parents and other relatives she will commit suicide. After thinking about the future of the kid the Petitioner kept the facts for himself.
7. It is submitted that the Petitioner requested the Respondent to inform the same to her mother and brothers and requested other people who had vital role in their marriage to come to Hyderabad and have a meeting at their relatives’ house regarding the above said issue. In this context, the Respondent’s mother, her sisters and their husbands and other relatives (Sri. P. Pardha Saradhi & Smt. Renuka, Sri. P. Adinarayana & Smt. Ramadevi and Sri. M. Shiva & Smt. Umadevi) reacted aggressively and said, “They don’t know about this before marriage and do whatever he want”. After many requests, finally all the Respondent’s relatives along with her mother agreed and had a meeting on 11th June at Mr. Pardha Saradhi’s house and her mother confirmed the same information which the Petitioner found in his enquiry that the death of the Respondent’s father occurred due to AIDS. The death certificate and medical reports are confirmed that he died with AIDS and the Respondent’s mother started diagnosing every year after her husband’s death. Even the Respondent’s mother is infected with the same AIDS and She is in the treatment and medication before the marriage between the Petitioner and the Respondent.
8. It is respectfully submitted that the Petitioner got to know that all the relatives of the Respondent are in regular touch with her and the interesting thing is that they all know this issue before the marriage and they hided wantonly. When the Petitioner asked the Respondent about this issue she has deleted all numbers in her mobile and destroyed the SIM and made drama of suicide. The Petitioner got scared and requested her brother to take her to their home for few days and give a positive feel on life. On the contrary, the brother and the mother of the Respondent came on 22nd July, 2012 to the house of the Petitioner at Hyderabad, expressed different thoughts by demanding to deposit some money in the Respondent’s name and are willing to go for divorce and leave the kid with them but the Petitioner refused for the same.
9. It is further submitted that in the end of July, 2012 the Respondent went to Tirupathi, before going to Tirupathi, the Petitioner expressed his dissatisfaction on the above incidents and requested her to conclude all the disputes. On 2nd August, he got a call from her saying that she is not going to give the divorce. He said ok and requested her to come to Hyderabad because his son is more affectionate with him. She came on 8th August.
10. It is respectfully submitted that from that day onwards she started behaving in different ways by biting with teeth and nails on the Petitioner, using vulgar words, not preparing food and expressing different ideas by hurting the Petitioner mentally and physically. The Respondent also demanded to participate in Sex and when the Petitioner objected for the same she blamed him that he is having illegal contacts with other women.
11. It is submitted that in the mean while the Petitioner tried to interact with their elders, but they are very rude and given warning that if he wants to give divorce to the Respondent they will file Criminal Cases such as Dowry Harassment, Domestic Violence, and complaint before the Mahila Commission against him and his Parents and relatives. On 15th August Petitioner and respondent has arguments and petitioner explained same to their parents, and requested respondent elders to come and take her to their home as she is abusing and beating, petioner requested for meeting on 16th after his parents came, but respondent family went to their native place without any intimation. on 17th when the Petitioner came back to the home from his office he learnt that his wife i.e., the Respondent herein had left his matrimonial home along with his Son without informing him and also came to know that she has taken her entire gold and also his salary which was kept in the Almara along with her medical reports.
12. It is further submitted that after seeing the attitude of the Respondent and her family members and their threatening, the Petitioner do not have any other go except to approach the court of law and the Police to safeguard him and his family immediately and hence he had lodged a complaint before the Station House Officer, Kukatpally.
13. It is submitted that prior to the marriage the Respondent is suffering from HIV which is not disclosed and by non-disclosing the said facts like about her father’s death, her mother ill-ness(HIV infected) who is under going the treatment and also about the Respondent’s ill ness is nothing but a fraud played on the life of the Petitioner. From the day, the Petitioner came to know about the Respondent’s ill-ness the relation between the wife and husband is totally broke down upon the strict instructions from the Doctors.
14. It is submitted that keeping in view of the safety of the kid the Petitioner filed this Present O.P. before this Hon’ble Court seeking the custody of his Son since the Respondent is infected with the AIDS which is most dangerous one to the health of the small boy who is forcibly kept by the Respondent with her.
15. It is respectfully submit that the Hon’ble Court may be pleased to consider the following scientific information in granting the child custody to the Petitioner which reads as follows :
a) If the HIV is not so dangerous why people are conducting so many rehabilitation and communication centers required.
b) All HIV cases and research saying that compare to HIV + Men, HIV + women have likely more dangerous to transmit the virus, where they will have reproductive and other infections will attract very easy.
c) In generally there will be a lot of care for the people who are living with HIV Positive persons, because of multiple diseases which are highly transmittable ( TB, chest cold, Viral pharyngitis, Ringworm, Gonorrhea, etc.,) and these are common effects to HIV+, then the risk of the child living with HIV positives will be put to more dangerous position.
d) If the HIV positive person hospitalized, doctors particularly intimate the attendants do not visit along with the Childs, because of the risk association.
e) Some researches (CDC) found that Women who’s CD’s level has down and virus level is high there will be likely more chances to transmutation, her CD4 is low and even her saliva also effected, (in this particular case the mother of the Respondent also in the same condition as she is suffering with AIDS from several years.
Other Types of Transmission
In the past, HIV was spread by transfusion with blood products, such as whole blood or the "factor" used by hemophiliacs. Many people were infected this way. The blood supply is now much more strictly tested and controlled. The odds of being infected from receiving blood or blood factor in the US are very low.
It is also possible to get HIV from skin grafts or transplant organs taken from HIV+ people. Again, the risk is considered very low, as these ‘body products’ are required to be strictly tested in the same way as blood products. Semen donations collected by sperm banks for artificial insemination are also considered ‘body products’ and strictly tested. Private semen samples that are not processed by sperm banks or similar organizations are not subject to the same testing. It is important for anyone receiving a private donor’s sperm for artificial insemination to have the donor tested for HIV.
HIV is spread primarily by:
Being born to an infected mother—HIV can be passed from mother to child during pregnancy, birth, or breast-feeding.
Less common modes of transmission include:
Being “stuck” with an HIV-contaminated needle or other sharp object. This risk pertains mainly to healthcare workers.
Receiving blood transfusions, blood products, or organ/tissue transplants that are contaminated with HIV. This risk is extremely remote due to the rigorous testing of the U.S. blood supply and donated organs/tissue.
HIV may also be transmitted through unsafe or unsanitary injections or other medical or dental practices. However, the risk is also remote with current safety standards in the U.S.
Eating food that has been pre-chewed by an HIV-infected person. The contamination occurs when infected blood from a caregiver’s mouth mixes with food while chewing. This appears to be a rare occurrence and has only been documented among infants whose caregiver gave them pre-chewed food.
Being bitten by a person with HIV. Each of the very small number of cases has included severe trauma with extensive tissue damage and the presence of blood. There is no risk of transmission if the skin is not broken.
Contact between broken skin, wounds, or mucous membranes and HIV-infected blood or blood-contaminated body fluids.
Is HIV Different for Men and Women?
Until recent years, little research had been done on women and HIV. While many questions remain unanswered, available information shows that HIV affects men and women differently in some ways:
a. When women are first diagnosed, they tend to have lower viral loads (amount of HIV in the blood) compared to men who are newly diagnosed
b. Women generally have lower CD4 cell counts than men with similar viral loads
c. Women are more likely than men to develop bacterial pneumonia
d. Women have higher rates of herpes infections than men
d. Women get thrush (a yeast infection) in their throats more often than men
Which body fluids transmit HIV?
These body fluids have been shown to contain high concentrations of HIV:
• blood
• semen
• vaginal fluid
• breast milk
• other body fluids containing blood
16. It is further submit that under the normal circumstances under Hindu Minority and Guardianship Act, 1956, the Natural Guardian is entitled to have the custody of the Minor Child. Hence, the father as the Natural Guardian is entitled to the custody of the Minor Children though in the case of a child who is below 5 years, the mother has the right to have custody of that child by reason of the proviso. “The controlling consideration governing the custody of the children is the welfare of the children and not the right of the parents. The word welfare has the widest amplitude”.
17. It is respectfully submitted that in the appointment or declaration of any person as Guardian of a Hindu Minor by a Court of Law, the welfare of the Minor shall be Paramount Consideration. No person shall be entitled to the Guardianship by virtue of the provisions of this Act or any Law relating to Guardianship in marriage among Hindus, if the Court is of opinion that his or her Guardianship will not be for the welfare of Minor.
18. It is further submit that basing on the welfare of his child, though he is under 5 years of age i.e., 1 year old is not at all safe keeping the Son under the custody of his mother i.e., the Respondent herein as she is mentally and physically disturbed lady due to her ill-health, HIV infected who is under going on regular medication may infect the child also. So being the child in the custody of the Respondent herein is not safe to the kid and more over it is very dangerous and cause irreparable loss and damage to his life.
Hence, in view of the above said reasons it is therefore prayed that this Hon’ble Court may be pleased to grant Interim Custody of Master A.Bilva Shree Ram (Son, aged one year) to the Petitioner with immediate effect without any further delay pending the main Guardian O.P. and pass such other order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
Dear All i have prepared above, please check and suggest your opinions.
