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M.Kalpana Sridevi vs C.Swaminathan on 17 December, 2019

TR.C.M.P.Nos.897 and 898 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 17.12.2019

CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN

TR.C.M.P.Nos.897 and 898 of 2019
and C.M.P.Nos.24552 24558 of 2019

TR.C.M.P.No.897 of 2019

M.Kalpana Sridevi … Petitioner/Petitioner
-vs-
1. C.Swaminathan
2. Mrs.Pansy … Respondents/Respondents
PRAYER: Petition is filed under Section 24 of Code of Civil Procedure to withdraw and
transfer suit in H.M.O.P.No.3948 of 2016 on the file of the IV Additional Family Judge,
Chennai to the file of VII Additional Family Judge, Chennai.
For Petitioner : Mr.N.Senthilkumar
For R1 : Mr.M.Balakrishnan

TR.C.M.P.No.898 of 2019

M.Kalpana Sridevi … Petitioner/Petitioner
-vs-
C.Swaminathan … Respondent/Petitioner
PRAYER: Petition is filed under Section 24 of Code of Civil Procedure to withdraw and
transfer suit in H.M.O.P.No.2155 of 2016 on the file of the IV Additional Family Judge,
Chennai to the file of VII Additional Family Judge, Chennai.
For Petitioner : Mr.N.Senthilkumar
For Respondent : Mr.M.Balakrishnan
*****
ORDER

These Transfer Petitions have been filed to transfer both H.M.O.P.Nos.3948 and 2155

of 2016, pending on the file of the IV Additional Family Judge, Chennai to the file of VII

Additional Family Judge, Chennai. H.M.O.P.No.3948 of 2016 has been filed by the petitioner

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TR.C.M.P.Nos.897 and 898 of 2019

/ wife for dissolving the marriage, whereas H.M.O.P.No.2155 of 2016 has been filed by the

husband / respondent herein, seeking for restitution of conjugal rights.

2. When these petitions are taken up for hearing, both the parties, who are present

before this Court in-person have submitted that they are willing to withdraw the respective

HMOPs pending before the IV Additional Family Court, Chennai and divorce may be granted

on mutual consent. On being questioned as to whether this Court can grant divorce on the

basis of consensus in a petition filed for transfer of the case from one Court to another,

learned counsel on either side have produced a judgment of this Court reported in (2016)

7 MLJ 54 [SectionA vs. B], wherein this Court, while granting divorce in a transfer petition, had

held as follows:

“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 SectionArticle 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 SectionHindu Marriage Act, for the reasons stated in para 28
of this Order, divorce, under Section 13 (1) (ia) of the SectionHindu Marriage Act on the ground of
cruelty has to be granted alternatively.

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TR.C.M.P.Nos.897 and 898 of 2019

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 pre-
existing 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 “. 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 SectionArticle 21 of the Constitution of India.

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TR.C.M.P.Nos.897 and 898 of 2019

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 ?”

3. From the representation 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, much less the child.

4. At this juncture, the parties have placed on record the original Joint Memo dated

12.12.2019 duly signed by the respective parties affixing their photographs thereon,

wherein it has been stated as follows:

“The respondent / husband has filed O.P.No.2155/2016 for Restitution of
Conjugal rights. The petitioner/wife has filed O.P.No.3948/2016 for divorce.
Both the petitions are pending before the IV Additional Family Court, Chennai.

The Petitioner / wife has filed the above Tr.C.M.P.Nos.897 898 of 2019
as against the above said Original Petitions.

The petitioner / wife and the respondent / husband held private
negotiations and mutually agreed as follows:

1. Both the parties hereby mutually agree to withdraw the allegations
leveled against each other in their respective original petitions.

2. Both the parties agreed to give their respective consent consciously and

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TR.C.M.P.Nos.897 and 898 of 2019

unequivocally for mutual separation / divorce and to dissolve the
marriage solemnized on 23.03.2009.

3. Both the parties mutually agree that the marriage solemnized on
23.03.2009 has broken down irretrievably.

4. The respondent/husband agrees not to claim custody over the minor
child, S.Chenthoor Aadithya, aged about 7 years forever.

5. The respondent/husband agrees not to claim visitation rights over minor
child, S.Chenthoor Aadithya, aged about 7 years forever.

6. The petitioner/wife agrees not to claim maintenance either for herself
or for the child, S.Chenthoor Aadithya, aged about 7 years forever.

7. Both parties mutually agreed not to lay any claims whatsoever against
each other in the future in any manner.

Dated at Chennai on this the 12th day of December 2019.”

5. Both the parties have requested that based on the above memo, a decree of

divorce may be granted to them by converting the divorce petition filed by the petitioner /

wife in H.M.O.P.No.3948 of 2016 as one of the divorce petition by mutual consent in terms

of the conditions incorporated in the memo dated 12.12.2019. At this stage, the

respondent / husband has submitted that while granting divorce, the petition filed by him

in H.M.O.P.No.2155 of 2016 for restitution of conjugal rights may also be closed.

6. Taking note of the submissions made on either side and in the interest of parties,

H.M.O.P.No.3948 of 2016 filed by the petitioner / wife for annulment of marriage is

S.VAIDYANATHAN,J.,
ar
allowed, thereby dissolving the marriage dated 23.03.2009 held between the

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TR.C.M.P.Nos.897 and 898 of 2019

petitioner/wife and the respondent/husband, in terms of the Joint Memo dated 12.12.2019

and H.M.O.P.No.2155 of 2016 filed by the respondent / husband for restitution of conjugal

rights is dismissed.

7. In view of disposal of both H.M.O.P.Nos.3948 and 2155 of 2016, no further orders

are required to be passed in these transfer petitions and accordingly, these two petitions

shall stand closed. No costs. Consequently, connected miscellaneous petitions are closed.

17.12.2019
Index: Yes / No
Internet: Yes / No
Speaking Order: Yes / No
ar

Note: Issue order copy on 03.01.2020

To:

The IV Additional Family Judge,
Chennai

TR.C.M.P.Nos.897 and 898 of 2019

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