Removal Of Wife's Uterus Due To Ovarian Cancer Not Mental Cruelty To Husband: Madras High Court Bins Plea For Divorce

The bench of Justice RMT Teekaa Raman and Justice PB Balaji thus confirmed an order of the Family Court dismissing the Husband's plea for dissolution of marriage on the grounds of mental cruelty, desertion and suppression of material fact.

“Hence, 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 court observed.

The husband had alleged that the wife was suffering from Cancer even before marriage and there was suppression of material facts with regard to her competency to bear the child. He had also submitted that there was cruelty and desertion on the part of the wife. The Family Court had dismissed the divorce petition observing that cruelty and desertion was not proved in the manner known to law.

During the appeal, perusing the admission of parties during cross-examination, the court noted that the couple had three pregnancies which resulted in abortion and it was only during the fourth pregnancy that the doctor found a malignancy in the Uterus after which the wife was referred to Cancer Institute at Adyar and diagnosed with Ovarian Cancer of third grade.

The court thus agreed with the finding of the Family Court dismissing the husband's plea that the cancer was a pre-existing disease before marriage. The court observed that the removal of uterus due to an emergency and life-threatening situation could not be termed as a ground of mental cruelty warranting dissolution of marriage. The court also noted that the wife's period of treatment from her parental house could also not be termed as desertion.

The court also noted that during cross-examination the husband had admitted that there was a possibility of progeny by having children through surrogacy or adoption. The court remarked that the husband was a golden-hearted person but was poisoned by some vested interest relatives who instigated him.

Thus, noting that it was not inclined to severe a matrimonial tie that was saved by an act of god, the court dismissed the husband's appeal and upheld the Family Court's order. Considering the special circumstances of the case, the court recommended the case to the Managing Director of Sakthi Charitable Trust to render financial aid for the parties to support their surrogacy/adoption.

Counsel for the Appellant: Mr.M.P.Senthil

Counsel for the Respondent: Mr.Aayiram K.Selvakumar

Citation: 2024 LiveLaw (Mad) 3

Case Title: ABC v XYZ

Case No: C.M.A(MD)No.724 of 2021