In the light of these facts, should HIV victims be given an untrammelled right to marry even with full disclosure to their respective spouses? If no, where does one draw the line and how should the restrictions be legislated? The Bombay High Court bench of Justice M B Ghodeswar and Justice S Radhakrishnan is expected to deliver a crucial judgement on these issues next week when the court reopens, on a petition filed by the Lawyers Collective on behalf of two HIV positive patients called A and C.

The petitioners' plea: Given that the Supreme Court had in a case `Mr X v Hospital Z' held that marriage for HIV patients was a suspendedright, they wanted a `clarification' from the high court that ``provided there was full disclosure and informed consent'' HIV patients could marry.

But the arguments, in many ways, ended up as ``HIV positive men v/s the right of women to public health'', where additional solicitor general D Y Chandrachud and women's rights activist Flavia Agnes opposed the submissions of the petitioners, represented by Anand Grover and C U Singh.

Chandrachud argued before the bench that there were very few facts before them for consideration. ``The law should not be benefitted by people who were liable to misuse it,'' he said adding that the socio-economic disabilities of women, where poverty and illiteracy exists, made them as a class, extremely vulnerable to exploitation. ``It would not be adequate to just tell the prospective spouse that I am HIV positive and leave it at that.''

Drawing on the limitations of consent where section 375 of the IPC lays down that sexual intercourse by a man with his wife does notconstitute rape, no `consent' other than that to marriage is contemplated under the section, Chandrachud pointed out. He admitted though that the mere act of solemnisation of a marriage is not an offence under section 269/270 (spreading of infectious diseases) of the IPC, but one could not ask for a carte blanche non applicability of that section. ``What the petitioners want is that the police not take any action under this section'', argued state government pleader R V Govilkar, as well.

Agnes on her part pointed out to the harsh realities of society. That women were inequal partners in marriages. That much as the petitioners made out a case for condoms, these had failed even as a family planning measure because they were of poor quality and were an instrument of male prerogative. She argued that the desire for an HIV positive man to marry was purely for selfish purposes; to have a wife cook for him, wash his clothes and give him children. ``The situation of afflicted women is stark and poignant. Therehave been cases where such women are driven to suicide, as there is noone to look after them,'' she argued.

The petitioners reached out to a future of possibilities what with striding medical research, and reiterated that a regular life with marriage, safe sex and even children was a possibility for HIV victims. Reading from the latest issue of the medical journal Lancet, Singh argued that a new drug had been invented that could be given to an infected expecting mother and her new born child to prevent the child from being infected. Multi drug therapies had also increased the lifespan of HIV victims.

Pointing out that one needed social measures as well, Singh used the example of Thailand, that distributes condoms to control the spread of AIDS. He remarked that there was more awareness among Indians, and even though the social distribution of condoms had decreased, market sales had increased. ``To prohibit an HIV victim from marrying on threat of criminal action would only drive the disease underground,''the petitioners argued.

HIV's spreading footprint over women, kids
In 1993, the Nowrosjee Wadia Maternity hospital started testing all its patients for HIV. Till December 1998 they had tested over 72,000 women, all low risk housewives. Statistics that started out by showing a 0.7 per cent prevalence of HIV in these patients in 1993 have today shot up to two per cent. Of the 25 million odd babies being born in India every year, one third are likely to be infected.

`An Update on HIV Infection in Women and Children', organised by the B J Wadia Hospital for children this morning, gave doctors, social workers and experts a chance to discuss these growing numbers. In his opening remarks, Dr Rashid Merchant, Dean and professor of pediatrics at the hospital explained: ``The health profile of children is drastically being affected. In the late '80s and early '90s, we noticed that an increasing number of children were showing clinical symptoms of AIDS. The number of cases where the mother has transmittedthe virus to the child is growing. Our hospital has developed a model which helps prevent the vertical transmission of the virus from the mother to the child. More work needs to be done.''

Added Dr Jyotsana Karkare of the hospital, ``Most patients are first time mothers and all of them housewives. In 91 per cent of the cases, they have contracted HIV through their husbands. Two per cent get the virus from blood transfusions and seven per cent from unexplained factors.''

Chad Womack from the National Institute of Health, USA said: ``This virus has shown an amazing capacity to divide into subtypes. The C subtype virus is the most prevalent in South Africa and India. Last year's statistics indicate that 12 to 15 million people have already been infected and the number is increasing. Around 50 per cent of the world population infected by HIV is women.''

The risk of transmission from a pregnant mother to her baby is reported to be between 21 and 43 per cent in developing countries. Experts add that there isan additional 14 to 17 per cent risk of the virus being transmitted with breast feeding.

The importance of counselling in the Indian social context was also discussed. The two performances by the nursing students from the hospital highlighted the importance of educating the people about HIV and AIDS.Chief guest Sunil Dutt, on his part, promised to get the government moving on the issue. Surprised that hospitals involved in AIDS work were not getting any aid, he said that he would take up the issue in Parliament.