In this, the duo, backed by the legal team of the `Lawyers Collective' are in effect seeking to challenge a recent Supreme Court judgement, which held that a HIV positive individual's right to marriage remains suspended till he or she is HIV positive, which - as of today - would mean forever.

The petition, currently being heard by the division bench of Justice N J Pandya and Justice S S Parkar and presented by senior advocate Anand Grover, argues that marriage is a fundamental right within the meaning of the right to life and liberty protected under Article 21 of the Constitution of India. Can it at all be abridged? If an HIV positive individual wanting to marry, discloses his/her situation to the spouse and marries only on obtaining his/herconsent, would there be any criminal or civil consequences on the individual?

Social ostracism, isolation, loss of job and human dignity. Along with the social stigmas faced by an HIV positive individual, the fraternity now faces its most challenging legal hurdle. The Supreme Court case of `Mr X v/s Hospital Z', which decided the marriage issue, itself exposed the vulnerability of an HIV positive individual in the present social system. X was an assistant surgeon in Nagaland who had accompanied a local patient to Madras for an operation in June 1995. The operation was cancelled due to shortage of blood and eventually X was asked to donate blood. His blood samples were taken and tested.

In August 1995, X, unaware of his HIV status, proposed marriage to one Y which was scheduled for December. However, the hospital in Madras subsequently, going against all medical ethics and norms disclosed the HIV positive status of the groom to the bride's family. The marriage was called off, X was ostracised by thecommunity and hounded off Nagaland. Hurt that the information which was required to be kept secret was disclosed illegally, X filed for damages against the hospital in the National Consumer Disputes Redressal Commission.

The case eventually landed up at the Supreme Court's door where a division bench of Justice S Sagir Ahmed and Justice B N Kirpal rejected his claim that the hospital should have maintained confidentiality. The bench held that ``the proposed marriage carried with it the health risk to an identifiable person who had to be protected from being infected.'' On similar lines, the bench also held that ``the right to marry cannot be accepted in absolute terms ...as long as the person is not cured of the communicable venereal disease, the right to marry cannot be enforced through a court of law and shall be treated to be a ``suspended right.''

In their petition at the Bombay High Court, the petitioners have not disputed that a person reported to be HIV positive is bound to disclose his status tohis spouse to obtain valid consent to sexual intercourse. A failure to do so, has also been held in some jurisdictions to be a valid ground for divorce. But, it has pointed out that a person could marry another with full knowledge of the other's HIV positive status.

Quoting numerous cases and judgements in the US and Canada it has urged that a doctor has to maintain confidential the medical status of hispatients.

If he were allowed to start revealing the medical facts of his patients, the faith reposed in the medical profession would suffer. Even in the somewhat delicate HIV scenario, it has been long recognised that the prevention of transmission at a social level is best advanced by protecting the rights of the HIV positive individual.

As far as the collection of blood samples are concerned, the petition points out that blood units can be tested in an unlinked and anonymous manner, and the blood bank need not know or disclose the identity of the person whose blood is tested positive.

In the end, amarraige and a healthy emotional relation is cited as one of the important stress busters for an individual undergoing intense psychological trauma on being tested HIV positive. Considering that a full blown AIDS occurs for 85 per cent of the individuals, only 18 years after testing HIV positive, it has been argued that a mere HIV positivity does not make anyone unfit to perform any of his social or economic functions.

Stressing that it is the society and the system that has to change to accommodate the HIV positive, the petitioners have pointed out that safe sex with condoms between discordant couples (where one is HIV negative) reduces transmission risk to nil. Also with artificial insemination, an HIV couple can have children who are not HIV positive.