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Mrs.C.Mary Shoba vs Mr.B.Prakash on 4 March, 2020

TR.C.M.P.No.685 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on Pronounced on
28.02.2020 04.03.2020

CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN

TR.C.M.P.No.685 of 2019
and C.M.P.No.19577 of 2019
Mrs.C.Mary Shoba … Petitioner
-vs-
Mr.B.Prakash … Respondent

PRAYER: Petition is filed under Section 24 of Code of Civil Procedure to withdraw
I.D.O.P.No.2746 of 2018 on the file of the V Additional Family Court at Chennai and transfer
the same to the Principal District and Sessions Judge, Kanyakumari District at Nagercoil.
For Petitioner : Mr.P.Raja

For Respondent : Mr.B.A.Prakash
*****
ORDER

The Transfer Petition has been filed to transfer the case in I.D.O.P.No.2746 of 2018

pending on the file of the V Additional Family Court at Chennai to the file of the Principal

District and Sessions Judge, Kanyakumari District at Nagercoil.

2. At the request of the learned counsel for the parties, this matter was taken up

for hearing on 10.02.2020 in the Chambers and both the parties along with their children

were present. After elaborate deliberations and arguments by the parties, the matter was

adjourned to 28.02.2020 on which date the matter was reserved for orders. Today, a

mention was made before me in the Court by the respective counsel that since the parties

have arrived at a settlement and decided to get separated by mutual consent, suitable

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TR.C.M.P.No.685 of 2019

orders may be passed in the matter today itself. Therefore, I have instructed the Registry

to publish an additional list for passing necessary orders in the matter, as the parties along

with their children and respective counsel are present today.

3. The parties, who are present before this Court in-person have submitted that

I.D.O.P.No.2746 of 2018 has been filed by the wife for dissolving the marriage. It is seen

that there were two sons born out of the wedlock, out of whom, one is aged about 20 years

and the other one is aged about 13 years approximately and they are now in the custody of

the respondent / husband. The parties have further submitted that though the present

petition has been filed for transfer of the case in I.D.O.P.No.2746 of 2018 pending on the

file of the V Additional Family Court at Chennai to the file of the Principal District and

Sessions Judge, Kanyakumari District at Nagercoil, they are willing to get separated on

mutual consent and divorce may be granted by this Court on mutual consent.

4. 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.

5. At this juncture, the parties have placed on record the original Joint Memorandum

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TR.C.M.P.No.685 of 2019

of Compromise dated 04.03.2020 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 petitioner / wife in I.D.O.P.No.2746 of 2018 as

one of the divorce petition by mutual consent in terms of the conditions incorporated in

the memo dated 04.03.2020.

6. 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

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TR.C.M.P.No.685 of 2019

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 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

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TR.C.M.P.No.685 of 2019

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 ?”

7. 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, I.D.O.P.No.2746 of 2018 filed by the petitioner / wife for annulment of marriage is

allowed, thereby dissolving the marriage dated 08.05.2000 held between the

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

04.03.2020. In view of disposal of I.D.O.P.No.2746 of 2018 itself, no further order is

required to be passed in the present transfer petition and accordingly, this petition shall

stand disposed of.

8. The parties are directed to produce a copy of this order to the V Additional Family

Court at Chennai for closure of the case, consequent to the grant of divorce on mutual

consent on the basis of the Joint Compromise Memo dated 04.03.2020. The petitioner /

wife herein has stated that she will not claim any custody over her sons, who are now with

the respondent and also stated she has no claim whatsoever against the respondent herein.

S.VAIDYANATHAN,J.,
ar
The Joint Memorandum of Compromise dated 04.03.2020 shall form part of this order. After
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TR.C.M.P.No.685 of 2019

having interaction with the parties and children personally, though this Court has allowed

the children, out of whom one is grown up, to go with their father, pursuant to the consent

given by the wife, my intuition says that the father will not bring them as good citizens of

this Country and their future at the hands of the father is perilous. No costs. Consequently,

connected miscellaneous petition is closed.

04.03.2020
Index: Yes / No
Internet: Yes / No
Speaking Order: Yes / No
ar

To:

The V Additional Family Court Judge,
Chennai

PRE-DELIVERY ORDER IN
TR.C.M.P.No.685 of 2019

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