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2018 DIGILAW 404 (MAD)

V. Saraswathy v. G. Velusamy

2018-02-06

A.SELVAM, P.KALAIYARASAN

body2018
JUDGMENT : P. Kalaiyarasan, J. 1. This Civil Miscellaneous Appeal has been filed by the wife against the order, dated 06.04.2015 passed by the Additional Family Court, Coimbatore in H.M.O.P.No.776 of 2009, granting divorce on the ground of cruelty as prayed for by the husband. 2. It is averred in the petition that marriage between the spouses was solemnized on 17.03.2002 in Coimbatore as per Hindu rites and customs. Even before marriage the appellant / respondent was suffering from Tuberculosis in uterus and due to that fallopian tubes were also blocked. Suppressing the same, she was married to the respondent / petitioner. When she was suffering from severe stomach pain after a year from the date of marriage, she was taken to the hospital and the husband came to know about the disease only at that time. In spite of effective treatment in various hospitals by spending huge amount, the wife has not recovered from the disease and is unable to give birth to a child. The wife has also refused to adopt a child. Therefore, the husband has come forward with an application for divorce under Section 13 (1) (ia) of the Hindu Marriage Act, on the ground of cruelty. 3. The appellant / wife in her counter admits the marriage between the spouses and they have no issues out of the wedlock. She further averred that she underwent treatment before the marriage for the problem in her uterus and the same was disclosed to the respondent / husband even prior to the marriage. The appellant / wife sold her jewels and gave the amount to her husband and utilising that amount and availing loan from the Bank, he constructed the house in 2004. For the birth of the child, both the husband and wife took treatment in several hospitals and in spite of that they are not blessed with any child. Though the wife agreed to adopt a child, the respondent / husband after discussing with his family members, rejected the proposal of adoption. The respondent / husband left the house on 12.08.2009 without informing the appellant. The reason for seeking divorce by the husband is that there is no child out of the wedlock and he wants to marry another lady for the sake of child. The spouses had been living happily for more than 7 years. Therefore the petition is to be dismissed. 4. The reason for seeking divorce by the husband is that there is no child out of the wedlock and he wants to marry another lady for the sake of child. The spouses had been living happily for more than 7 years. Therefore the petition is to be dismissed. 4. The petitioner and the respondent were examined as P.W.1 and R.W.1. 9 Exhibits have been marked on the side of the petitioner. The trial Court after analysing the evidence of both sides, granted divorce. Aggrieved by the same, the appellant / wife has preferred this Civil Miscellaneous Appeal. 5. The learned counsel appearing for the appellant mainly argued that nothing was suppressed before marriage to the respondent / husband and even according to the husband, the spouses had been living happily for about 7 years, even after knowing the past ailment of the wife when the husband admitted his wife in the hospital after marriage for her ailment in the stomach and therefore, the trial Court is not correct in granting divorce. 6. The learned counsel appearing for the respondent argued that the suppression of ailment of the wife before marriage and at the time of marriage has been established and on that ground trial Court has granted divorce and hence the order of the trial Court does not require any interference by this Court. 7. There is no dispute that the marriage between the appellant and the respondent took place on 17.03.2002 in Coimbatore and they have not been blessed with any child, though they have been living happily for more than 7 years. The husband seeks divorce on the ground of cruelty, i.e., under Section 13 (1) (ia) of the Hindu Marriage Act saying that the ailment of the wife before marriage was suppressed at the time of marriage and the same put the husband into mental agony and because of that the spouses have not been blessed with any child. 8. The medical report of the wife before marriage and after marriage have been filed as Ex.P.2 to Ex.P.9. As per Ex.P.2, Medical Report, dated 14.08.2001 which is prior to the marriage, diagnosis reveals that there is possibility of (1) Tuberculosis and (2) Pelvic Inflammatory mass. 9. Even according to the wife, she took treatment as inpatient in the hospital for the ailment for about 3 months at that time. As per Ex.P.2, Medical Report, dated 14.08.2001 which is prior to the marriage, diagnosis reveals that there is possibility of (1) Tuberculosis and (2) Pelvic Inflammatory mass. 9. Even according to the wife, she took treatment as inpatient in the hospital for the ailment for about 3 months at that time. About an year after the marriage when the wife suffered with stomach pain, she was taken to the hospital. Subsequently she was also taken to various hospitals for taking treatment to give birth of a child. 10. The Discharge summary of G. Kuppusamy Naidu Memorial Hospital, dated 20.06.2007 is marked as Ex.P.7. In this it has been mentioned that IVF ICSI done. Had the wife been suffering with uterus tuberculosis continuously, IVF ICSI would not have been done. Therefore the wife cannot be said to have been suffering with Uterus Tuberculosis. Tuberculosis is a curable disease and having suffered with the ailment, the wife was treated as inpatient for about 3 months and she got cured completely. There is absolutely no evidence that even after marriage, she continued with sufferings of uterus tuberculosis. Therefore the question of suppression of the disease at the time of marriage does not arise. 11. Even assuming that the ailment was suppressed at the time of marriage, it is to be taken that the husband condoned the same by living happily with his wife for about 7 years, even after knowing her ailment within two years from the date of marriage, in the light of his evidence. The husband examined as P.W.1 during his cross-examination has deposed as follows: “TAMIL” 12. Thus as stated supra, the husband by his act condoned the ailment suffered by the wife before marriage and the alleged suppression of the ailment if any. The husband has not established the cruelty warranting dissolution of marriage under Section 13 (1) (ia) of the Hindu Marriage Act. The trial Court is not correct in granting divorce and the order of the trial Court is liable to the set aside. In the result, this Civil Miscellaneous Appeal is allowed without cost and the order of the trial Court, dated 06.04.2015 made in H.M.O.P.No.776 of 2009 is set aside. The H.M.O.P.No.776 of 2009 filed by the husband is dismissed. Consequently, connected miscellaneous petitions are closed.