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2020 DIGILAW 140 (MAD)

Sivasankari v. Paranitharan

2020-01-20

S.VAIDYANATHAN

body2020
ORDER : The Transfer Petition has been filed to transfer the case in M.O.P.No.69 of 2019 pending on the file of the Family Court, Pondicherry to the file of the Family Court, Chengalpattu. 2. When the matter is taken up for hearing, both the petitioner and the respondent, who are the wife and the husband respectively, present before this Court in-person have submitted that M.O.P.No.69 of 2019 has been filed by the husband for dissolving the marriage and the wife has lodged a complaint against her husband and in-laws under the provisions of the Protection of Women from Domestic Violence Act, which is pending in D.V.C.No.3 of 2019 on the file of Judicial Magistrate, Thirukazhukukndram. They have further submitted that though the present petition has been filed for transfer of M.O.P.No.69 of 2019 from the file of the Family Court, Pondicherry to the file of the Family Court, Chengalpattu, they are willing to get separated on mutual consent and divorce may be granted by this Court on mutual consent. 3. From the representations made by the parties, it could be visualized that the spouses are not even interested to have an eye to eye contact and that there is a vast difference of opinion between them in the matrimonial front. Once they themselves have taken a decision to opt for voluntary separation, the grant of time to prolong their relationship by merely referring the matter for mediation and conciliation will not help anyone. 4. At this juncture, the parties have placed on record the original Joint Compromise Memorandum dated 20.01.2020 duly signed by the respective parties and have requested that based on the above memorandum, a decree of divorce may be granted to them by converting the divorce petition filed by the respondent / husband in M.O.P.No.69 of 2019 as one of the divorce petition by mutual consent in terms of the conditions incorporated in the memo dated 20.01.2020. 5. This Court, while dealing with a case of similar in nature reported in (2016) 7 MLJ 54 [A vs. B], had granted divorce to the parties therein even in a transfer petition, by holding as under: “28. 5. This Court, while dealing with a case of similar in nature reported in (2016) 7 MLJ 54 [A vs. B], had granted divorce to the parties therein even in a transfer petition, by holding as under: “28. Prolonging the divorce proceedings or not relieving the petitioner, from the clutches of the so-called holy bond of marriage, would be sheer injustice meted out to the poor lady, who, with fond hopes and colourful dreams, would have stepped into the marriage hall, only to get shocked terribly and shattered by the disease being suffered by the respondent. No amount of consolation, either by money or otherwise, could compensate the agony and pain undergone, both psychologically and physiologically, by the petitioner. 29. Even after hearing the cry of the innocent girl, if this Court mechanically passes order in the transfer petition only citing the limited prayer sought for from this Court, which is custodian of fundamental rights, civil rights, it would be shirking its responsibility. It is well settled that Rules and Procedures are the handmaids of justice. Technicalities and procedures should not frustrate the course of justice. Tears from the eyes of justice seeking lady have to be necessarily wiped out by passing unconventional orders travelling beyond the prayer, procedures and provisions. She needs to be consoled, comforted and compensated speedily. To give re-birth to her hopes to lead a normal life, the only way is to cut off the marital bond between the petitioner and the respondent, which this Court would not endeavour to do, in normal circumstances. Transferring the proceedings to the trial Court to face the trial for many years and then to superior Courts would only cause grave injustice to the petitioner. Hence, departing from conventional method of transferring the cases invoking Article 227 of the Constitution of India and Section 151 of the C.P.C., this Court has to grant decree of nullity of marriage dated 13.11.2014 as prayed for under Section 12(1)(c) of the Hindu Marriage Act, 1955 in H.M.O.P. No. 158 of 2015 filed by the petitioner and dismiss the respondent's petition filed under Section 9 of the Act seeking restitution of conjugal rights in F.C.O.P. No. 1922 of 2015. Assuming for a moment that the decree of nullity can not be granted under Section 12 (1) (c) of the Hindu Marriage Act, for the reasons stated in para 28 of this Order, divorce, under Section 13 (1) (ia) of the Hindu Marriage Act on the ground of cruelty has to be granted alternatively. 30. In the result, H.M.O.P. No. 158 of 2015 filed by the petitioner for annulment of marriage is allowed declaring the marriage dated 13.11.2014 between the petitioner/wife and the respondent/husband as null and void on the ground of fraud by suppression of preexisting disease of the Respondent/Husband and F.C.O.P. No. 1922 of 2015 filed by the respondent for restitution of conjugal rights is dismissed. The Transfer Civil miscellaneous Petition is disposed of. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed. 31. At the same time, by this order, the Respondent should not feel demoralized. This Court is aware that the occurrence of disease to one is not at his/her invitation and for the diseases suffered by him, he cannot be found fault. This Court only found that the petitioner was not informed the Respondent's disease before the marriage. Though cancer is considered to be dreadful and incurable, by advancement in the medicine, the disease has become manageable. In fact, a few types of caners are stated to be curable. According to medical literature, the main types of cancer treatment include surgery, Chemotherapy radiation, targeted therapy, hormone therapy and immunotheraphy. Scientists achieved a "break through therapy" for treating colon cancer and Hodgkin Lymphoma which Respondent is suffering." "The New England Journal of Medicine" Journal issue dates May 21, 2015 reported that one dose of immunotherapy would cause rapid eradication of a Bulky Melanoma mass. "Immunotherapy" is a revolution in the treatment of cancer reports. The journal of Lancaster Journal Hospital Spring issue 2016. It reports that immunotherapy, has the potential of treatment of cancer. Immunotherapy is a treatment that helps immune system to fight cancer. LIVE SCIENCE dated 21-8-2015 reported that 91 years old Former President of USA Mr. Jimmi Carter, who has advanced liver and brain cancer, received a drug called "PEMBROLIZUMAB" marketed as "KEYTRUDA" approved by FDA, USA in 2014 and his disease is stated to have been cured. Because of the above reason, the new magical drug "KEYTRUDA" is popularly called " CARTER DRUG ". Jimmi Carter, who has advanced liver and brain cancer, received a drug called "PEMBROLIZUMAB" marketed as "KEYTRUDA" approved by FDA, USA in 2014 and his disease is stated to have been cured. Because of the above reason, the new magical drug "KEYTRUDA" is popularly called " CARTER DRUG ". It works in a new way to help the body's own immune system to tackle hard - to - reach tumor cells. Other can treating drugs are "Ipilimunmab, Opdivo, Yervoy, Nivolumab etc. Further, "in a matter of a few years, therapies have truly transformed the outlook for patients with melanoma and many other hard-to-treat cancers" said Dr. Don Dizon, an Oncologist at Massachusetts General Hospital and spokes person for "American Society for clinical Oncology" (ASCO). Moreover, researches are being conducted throughout the world by scientists to find effective and standard drugs to treat cancer patients. In view of the above developments and with new therapies and drugs, this Court hopes and believes that he would be successful in tackling the disease, as the disease of the respondent responds to the treatment. This Court once again stresses that the respondent should not feel discouraged and demoralized due to cancer as new medical therapies are creating wonders. What is needed is will-power and regular follow up. What is required for respondent and other cancer patients is will-power, courage, timely medication and regular follow-up. Not only Governments but also people should encourage and reassure them with compassion and support and they should not be ignored, discouraged, ridiculed and demoralized. 32. This case would amply demonstrate as to how a young lady suffers because of the marriage conducted without proper enquiry and verification about the groom. Therefore, it is prudent for the parents of prospective brides and grooms to make necessary enquiry and verification about the health of their prospective son-in-law/daughter-in-law, as the case may be. However, in haste and hurry, most of the marriages are conducted and invariably, the women are becoming victims violating their "dignity" "human rights" and " right to decent and meaningful life as guaranteed under Article 21 of the Constitution of India. 33. One should remember that "Institution of Marriage", is based on mutual faith and trust where both the bride and the groom are equal partners. If pre-marital examination of the respondent had been done, the diseases would have been diagnosed and the marriage would have been certainly stopped. 33. One should remember that "Institution of Marriage", is based on mutual faith and trust where both the bride and the groom are equal partners. If pre-marital examination of the respondent had been done, the diseases would have been diagnosed and the marriage would have been certainly stopped. If pre-marital examinations are done, many problems due to medical issues, failure of marriages due to fraud, non-disclosure of health problems etc., could be averted. Therefore, it is appropriate for the Central & State Governments to sensitize the people about the importance of pre-marital counseling atleast, if not premarital examination and the benefits of such counseling by medical experts by proper advertisements in media, short movies, conducting seminars in colleges etc. Will they ?” 6. Following the aforesaid judgment, I had also granted divorce to parties even at the time of hearing a Transfer Petition in the case of M.Kalpana Sridevi vs. C.Swaminathan [ TR.C.M.P.Nos.897 and 898 of 2019] decided on 17.12.2019. In view of the precedent and taking note of the submissions made on either side and in the interest of parties, M.O.P.No.69 of 2019 filed by the respondent / husband for annulment of marriage is allowed, thereby dissolving the marriage dated 01.02.2004 held between the petitioner/wife and the respondent/husband, in terms of the Joint Memo dated 20.01.2020. In view of disposal of M.O.P.No.69 of 2019, no further order is required to be passed in the present transfer petition and accordingly, this petition shall stand disposed of. As agreed by the respondent / husband, he shall hand over the jewels to the petitioner / wife, either directly in the presence of their respective counsel or through Family Court on or before 31.01.2020 on due acknowledgment. 7. The parties are directed to produce a copy of this order to the Family Court, Pondicherry and the Judicial Magistrate Court, Thirukazhukukndram for closure of the respective cases, consequent to the grant of divorce on mutual consent on the basis of the Joint Compromise Memo dated 20.01.2020. No costs. Consequently, connected miscellaneous petition is closed.