Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Mad) 3356

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN, THE HONOURABLE MR.JUSTICE P.B.BALAJI
Sankara Subramanian – Appellant
Versus
Sivalekshmi alias Sheela - Respondent
C.M.A(MD)No.724 of 2021
Decided On : 22-12-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. M.P. Senthil
For the Respondent: Mr. Aayiram K.Selvakumar

IMPORTANT POINT
Cruelty in the context of divorce must be evaluated subjectively, considering the social and economic realities of the parties, and medical conditions arising after marriage cannot be grounds for dissolution of marriage.

Headnote:
CRUELTY - Dissolution of Marriage - Hindu Marriage Act, 1955: Sections 5(ii)(b), 13(1)(ia)(ib) - The court interpreted the provisions of the Hindu Marriage Act, particularly focusing on the definitions of cruelty and desertion. It emphasized that cruelty is subjective and must be assessed in the context of the parties' social and economic realities. The court found that the wife's medical condition, which arose after marriage, could not be classified as cruelty or desertion, and the husband's claims were not substantiated by evidence. The court's decision was influenced by the need to protect the sanctity of marriage and the social context of the parties involved.
Fact of the Case:
The husband filed for divorce on grounds of cruelty and desertion, claiming that the wife suppressed her pre-existing cancer condition before marriage and that her subsequent medical issues constituted cruelty. The marriage took place on 09.02.2014, and the wife was diagnosed with ovarian cancer after multiple pregnancies and abortions, leading to the removal of her uterus.
Finding of the Court:
The Family Court found no evidence of suppression of material facts regarding the wife's health prior to marriage. It concluded that the wife's medical condition was not a ground for divorce under the Hindu Marriage Act, as it was not an act of cruelty or desertion.
Issues: 1. Whether the wife's cancer diagnosis and subsequent surgery constituted cruelty to the husband. 2. Whether the wife's treatment period amounted to desertion. 3. Whether the removal of the uterus justified a dissolution of marriage on the grounds of mental cruelty.
Ratio Decidendi: The court held that cruelty must be assessed in the context of the parties' circumstances and that the wife's medical condition, resulting from cancer, could not be deemed as cruelty. The court emphasized the importance of social context in evaluating claims of cruelty and the need for a compassionate approach in family law.
Final Decision: The Civil Miscellaneous Appeal was dismissed, affirming the Family Court's decision to reject the husband's petition for divorce.

JUDGMENT :

RMT.TEEKAA RAMAN, J.

Prayer:- Civil Miscellaneous Appeal filed under Section 19(1) of the Family Courts Act, 1984, against the fair and decretal order, dated 19.02.2021 passed in H.M.O.P.No.5 of 2019 on the file of the Family Court, Tirunelveli.

The husband has filed this appeal challenging the order of rejection of the relief of dissolution of marriage on the ground of cruelty filed under Section 13(1)(ia)(ib) & 5(ii)(b) of the Hindu Marriage Act.

2. The marriage between the parties was solemnized on 09.02.2014 and the reception was held at Rajanathan Mahal, Santhinagar, Palayamkottai on behalf of the husband side.

3. For the sake of convenience, the parties are referred to according to their litigative status before the Family Court as petitioner/husband and respondent/wife.

4. The fact that are necessary for determination of this appeal shun unnecessary facts are as under:

(a) The marriage between the parties are admitted. Before the trial Court, the husband has filed the above H.M.O.P.No.5 of 2019 on the ground of cruelty, desertion and also included Section 5(ii)(b) of the Hindu Marriages Act for the wife is not competent to give progeny.

5. The petition proceeds on the basis that even before the marriage, the wife was suffering from Cancer and therefore, there is a suppression of material facts with regard to her competency to bear the child and also on the ground of cruelty and desertion. There is no pre-suit notice between the parties.

6. The husband examined himself as P.W.1 and marked Ex.P1 to Ex.P12. The wife examined herself as R.W.1 no document has been produced.

7. On consideration of both oral and documentary evidence adduced before the Family Court, the Family Court Judge has come to the conclusion that there is no evidence of suppression of any material fact on the medical ground of the petitioner and prior to the marriage, there was no symptom of Cancer and the subsequent affliction of Cancer, which has resulted in removal of the Uterus, cannot be a ground to file a petition under section 5(ii)(b) of the Hindu Marriage Act and the alleged cruelty and desertion are not proved in the manner known to law, accordingly, dismissed the divorce petition. Hence, the husband has filed the present Civil Miscellaneous Appeal.

8. After admission of this case, it appears from the Court records that there was a counselling before the Mediation Centre twice and thereafter, it appears that previous brother Judges of this Court have also made an attempt between the parties to settle the matter amicably. The wife has expressed her unwillingness to settle the matter and hence, again posted in the list. Subsequently, the husband was given counselling by the brother Judges, it also went in vain and hence, left with no other option, posted the case for judicial pronouncement. On 27.11.2023 we also had an interaction with the husband and wife separately as well as jointly and thereafter also, had an interaction in the presence of their advocates, we are unable to get the consent of either of the party and hence, we posted the matter for arguments.

9. After hearing the rival submissions and after perusing the evidence of P.W.1 (husband) and R.W.1 (wife) the point for consideration in the CMA are as under:

(i) Whether, the wife, who had during the subsistence of marriage, got afflicted with 'Ovarian Cancer' that resulted in Uterus removal and thereafter, can be termed as a cruelty to the husband:

(ii) Whether the period of treatment taken by the wife for fighting with Cancer and the treatment for it at the parental home can amount to desertion.

(iii) Whether, after the removal of the Uterus, the husband is entitled to seek a dissolution of marriage on the ground of removal of the Uterus has resulted in mental cruelty as the chance of progeny of the husband has been lost?.

10. The marriage between the parties was solemnized on 09.02.2014. On 02.05.2014, the first pregnancy got aborted as admitted by P.W.1 and R.W.1. The abortion has taken