Madras High Court: In an appeal filed by the husband challenging the order of rejection of the relief of dissolution of marriage on the ground of cruelty filed under Section 13(1)(ia)(ib) and 5(ii)(b) of the Hindu Marriage Act, 1955, (‘HMA’), the division bench of RMT. Teekaa Raman* and P.B. Balaji, JJ. while upholding the Family Court’s judgment, held that during the subsistence of marriage, the wife was diagnosed with ‘Ovarian Cancer’ and during the treatment, her Uterus was removed, thus, the same cannot be treated as a cruelty to the husband much less ‘mental cruelty’, since it is not ‘Act of the wife’ but only as ‘Act of fate or destiny’.
Background:
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 regarding her competency to bear the child. The Family Court while dismissing the divorce petition, held that there is no evidence of suppression of any material fact on the medical ground of the husband 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 HMA. Hence, the husband has filed the present appeal.
Issues:
-
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?
-
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?
-
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?
The Court noted that only after the marriage, three pregnancies resulted in three abortions. During the fourth abortion only, cancer was diagnosed by the Doctor, and due to this medical condition alone, the Uterus was removed, and the wife was subjected to chemotherapy. Therefore, it said that during the subsistence of marriage, wife was afflicted with Cancer which resulted in removal of the Uterus, which cannot be termed as a ground of mental cruelty, warranting dissolution of marriage.
The Court referred to P. Devaraj v. V. Geetha, 2006 SCC OnLine Mad 662, wherein it was held that the presence or absence of uterus is quite immaterial to the question whether a woman is impotent or not. Merely because the uterus of a woman is removed, she could not be held to be impotent and that could not be a ground to declare the marriage void.
The Court noted that even though it was alleged by husband that the removal of uterus was done without his knowledge, the Trial Court recorded that the husband during his cross examination, admitted that the wife was admitted in Hospital for the purpose of operation and according to the Doctor who performed surgery, consent was obtained from the husband for operation, thus, he was aware of the removal of the uterus of his wife.
The Court remarked that at the instigation of some of the family members to have a child for the line of progeny, the husband appears to have filed this application.
The Court held that during the subsistence of marriage, the wife was diagnosed with ‘Ovarian Cancer’ and during the treatment, her Uterus was removed, thus, the same cannot be treated as a cruelty to the husband much less ‘mental cruelty’ since it is not ‘Act of the wife’ but only as ‘Act of fate or destiny’.
Further, it held that the period of treatment she has taken from the parental home cannot be termed as desertion. Concerning Section 5(ii)(b) of the HMA, since there was no pre-existing disease at the time of marriage thus, the husband is not entitled for divorce under that ground too.
The Court said that seeking divorce has not stemmed from the heart of the husband but only appears to have surfaced from ill-effects of some relatives who wanted to exploit the pitiable and pathetic situation, by raising the plea of progeny.
Further, the Court said that in the event of husband opting for adoption, the wife shall give her consent to do so from the NGO. It also recommended the case of the parties to the Managing Director of Sakthi Charitable Trust run by the Sakthi Masala Group to render financial aid for the parties to support surrogacy.
[Sankara Subramanian v. Sivalekshmi alias Sheela, 2023 SCC OnLine Mad 8012, decided on 22-12-2023]
*Judgment Authored by: Justice RMT. Teekaa Raman
Advocates who appeared in this case:
For Appellant: Advocate M.P. Senthil
For Respondent: Advocate Aayiram K.Selvakumar
