CASE TITLE:
PERIAMMAL VS KAMALAM, RAMESH, VENKATESH (DIED) KANDASAMY
BENCH:
HON’BLE MR. JUSTICE RMT.TEEKAA RAMAN,
HON’BLE MR. JUSTICE P.B. BALAJI
PARTIES:
Plaintiff: PERIAMMAL
Respondent: KAMALAM, RAMESH, VENKATESH (DIED), KANDASAMY
SUBJECT:
A civil miscellaneous appeal against the just 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, was filed under Section 19(1) of the Family Courts Act, 1984.
OVERVIEW:
- The petitioner who was the husband has filed an 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. The marriage was solemnized on 09.02.2014, and the husband filed a H.M.O.P. No.5 of 2019 on the grounds of cruelty, desertion, and the wife's inability to give progeny. The husband argued that the wife was suffering from cancer before marriage, and there was a suppression of material facts regarding her competency to bear a child. The Family Court Judge concluded that there was no evidence of suppression of any material fact on the medical ground of the petitioner, and the subsequent affliction of Cancer, which resulted in the removal of the Uterus, cannot be a ground to file a petition under section 5(ii)(b) of the Hindu Marriage Act. He also has filed the Civil Miscellaneous Appeal.
- The court has considered the evidence of the husband and wife, and the points for consideration in the CMA include whether the wife's treatment for the cancer and the removal of the Uterus can be considered as cruelty, whether the period of treatment at the parental home can amount to desertion, and whether the husband is entitled to seek a dissolution of marriage on the ground of mental cruelty.
- The Indian Supreme Court has ruled that cruelty is subjective and varies with gender. The law of divorce, initially based on fault theory and conservative campus, has evolved to adopt a libertarian attitude and latitudinarianism. Courts must adopt social-context thinking', considering social and economic realities, as well as the status and background of parties. The burden of proof in a divorce petition lies on the petitioner, but the degree of probability is not beyond reasonable doubt. The expression of cruelty is objective and depends on the social strata and conditioned ways of life of the parties involved. The court must adopt a holistic approach, ensuring socio-economic independence and avoiding perpetuating trauma on the vulnerable party. This is achieved through social context judging or social justice adjudication.
ARGUMENTS ADVANCED BY THE PARTIES
- The appellant's learned attorney would argue that, with the uterus removed, the appellant's husband has no chance of bearing children or producing offspring. Accordingly, the appellant files for divorce on the grounds of cruelty, desertion, and irreversible breakdown of the marriage. Since 2014, they have not shared a residence for the past eight years.
- On the other hand, the respondent/wife's learned counsel would argue that the petition was filed based on the assumption that the wife had cancer even before they were married, that her pre-existing condition was suppressed at the time of the marriage, and that her uterus was removed as a result of an emergency medical condition while receiving cancer treatment at the Adayar Cancer Institute in Chennai. She was thankfully saved by an act of God, and she now wishes to live with her spouse. Her father also passed away during the few years she was receiving treatment
JUDGEMENT ANALYSIS:
- The Family Court found that there is no evidence to show that the wife had symptoms of Cancer even prior to the marriage. The husband's plea that Cancer was a pre-existing disease was rightly negatived. The wife had three pregnancies, three abortions, and a fourth abortion, which was suspected by a doctor at Tirunelveli. Due to the medical condition, her Uterus was removed and she underwent chemotherapy, saving her from the killer disease of Cancer.
- The wife is a cancer survivor who survived the brutal attempts made by the disease. However, during treatment, her Uterus was removed due to emergency and life-threatening situation, and the husband was intimated about it. The court found that only during the subsistence of marriage, the wife was afflicted with Cancer which resulted in the removal of her Uterus, cannot be considered a ground of mental cruelty warranting dissolution of marriage.
- The husband appears to have filed a divorce petition on the ground of progeny, but the court finds that this is not a crime but an act of fate or destiny. The period of treatment taken from the parental home cannot be termed as desertion. The Hindu Marriage Act states that Cancer is not a pre-existing disease at the time of marriage, and the husband is not entitled for divorce.
- After perusing the oral evidence and medical records, the court finds that the wife is a cancer survivor who was saved by Adayar Cancer Institute and doctors at the institute. The court does not intend to severe the matrimonial tie that has been saved by the Act of God. The wife pleads to save the matrimonial tie for the rest of her life, as Cancer made an attempt to separate her permanently from her husband.
- The court found no merits in an appeal regarding a marriage dispute. The court ruled that if a husband chooses adoption, the wife must give consent from the relevant NGO. If the husband chooses surrogacy, the court recommends NGOs and corporate entities with CSR funds to provide financial and medical assistance. The Sakthi Charitable Trust, run by the Sakthi Masala Group, can provide financial aid to support surrogacy. The court confirmed the dismissal of the husband's dissolution of marriage, confirming the order of the Family Court. The appeal is dismissed without costs.
CONCLUSION:
- The appeal pertaining to a marital disagreement was dismissed by the court. The wife must obtain approval from the appropriate NGO if her husband decides to pursue adoption, the court decided. The court suggests that NGOs and corporate entities with CSR funds offer financial and medical support if the husband decides to become a surrogate. Funding for surrogacy can be obtained through the Sakthi Masala Group's Sakthi Charitable Trust. The dismissal of the husband's request for a divorce was upheld by the court, upholding the Family Court's ruling. The appeal is denied with no expenses incurred.
