The Madras High Court held that if a wife is diagnosed with Ovarian Cancer and during the treatment, her uterus is removed, that cannot amount to cruelty to the husband.

The Madurai Bench held thus in an appeal filed under Section 19(1) of the Family Courts Act, 1984 by the husband against 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.

A Division Bench of Justice RMT. Teekaa Raman and Justice P.B. Balaji observed, “… taking into entirety of the circumstances, we have no hesitation to hold that during the subsistence of marriage, when the wife was diagnosed with 'Ovarian Cancer' and during the treatment, her Uterus was removed, 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'. … The period of treatment she has taken from the parental home also cannot be termed as desertion. With regard to Section 5(ii)(b) of the Hindu Marriage Act, since we have already found that is not a pre-existing disease at the time of marriage and on that ground also the husband is not entitled for divorce.”

The Bench took note of the fact that though the wife was saved, due to the medical condition, the doctors at Cancer Institute could not save her Uterus and the same was removed.

Advocate M.P. Senthil appeared on behalf of the appellant/husband while Advocate Aayiram K. Selvakumar appeared on behalf of the respondent/wife.

Brief Facts -

The marriage between the parties was solemnized in 2014 and before the Trial Court, the husband filed a plea on the ground of cruelty, desertion, and also included Section 5(ii)(b) of the Hindu Marriage Act for the wife was not competent to give progeny. The petition proceeded on the basis that even before the marriage, the wife was suffering from Cancer and therefore, there was a suppression of material facts with regard to her competency to bear the child.

The Family Court Judge concluded that there was no evidence of suppression of any material fact on the medical ground and that prior to marriage, there was no symptom of Cancer. Hence, the divorce petition was dismissed. The points for consideration before the High Court were:

(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?

The High Court while considering the aforementioned issues said, “It remains to be stated that during the cross-examination, the husband (P.W.1) admitted that there is a possibility of progeny of getting children by surrogacy method and he is willing for the said surrogacy. So also the wife, during her cross-examination as R.W.1, as extracted supra, has expressed that the husband has no objection either for adoption of a child or to go for a surrogacy through surrogate mother.”

The Court further noted that the wife is a cancer survivor and the destiny struck her in the form of the killer disease of humanity and she was diagnosed as being in the third stage of cancer, however, was saved by Adayar Cancer Institute.

“Though she was saved, due to the medical condition, the doctors at Cancer Institute could not save her Uterus and the same was removed. … Some of the evil-eyed relatives appear to have injected inhuman feeling in the mind of the husband to seek for divorce, citing progeny being lost. The wife pleads to save the matrimonial tie for the rest of her life”, also said the Court.

The Court added that cancer, in the form of a killer disease made an attempt on her to separate her permanently from her husband and it was saved by Act of God and by doctors.

“We thought it fit to reproduce the words of her husband to the wife before surgery “ You be my child, I be yours”. Such a golden hearted husband was poisoned by some vested interest relatives, to file the divorce petition. Thus, we find that seeking divorce has not stemmed from the heart of the husband but only appears to have surfaced from a communicable disease, viz., ill-effects of some relatives who wanted to exploit the pitiable and pathetic situation, by raising the plea of progeny”, noted the Court.

Furthermore, the Court said that the human relation itself is fragile, but human mind is more fragile and it will break in a split second and hence, the case should be assessed in entirety but not in isolation.

“In the event of the husband opting to surrogate a child, through a surrogate mother, considering the special circumstances of this case, we recommend to the NGO's and Corporate having CSR funds to render financial and medical assistance to fulfill the wish of the husband”, concluded the Court.

Accordingly, the High Court dismissed the civil miscellaneous appeal and confirmed the order of the Family Court.

Cause Title- ABC v. XYZ

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