The Patna High Court recently held that the inability to conceive a child is neither considered impotence nor a valid reason for dissolving the marriage.
A two-judge bench consisting of Justice Jitendra Kumar and Justice PB Bajanthri highlighted that the Hindu Marriage Act does not consider infertility a valid ground for allowing divorce.
Inability to conceive a child is a natural aspect of a marital relationship, and such couples have other alternatives for having children including adoption, the bench added.
The Court said, “Inability to bear a child is neither impotence nor any ground for dissolving the marriage. Such possibility of inability to bear a child may be part of the marital life of anybody and parties to a marriage may resort to other means for having a child, such as adoption. Divorce is not provided as per the Hindu Marriage Act in such circumstances.”
Thereafter, the Court dismissed the revision plea of a man who challenged the family court’s decision rejecting his divorce petition, filed under Section 13 of the Hindu Marriage Act.
The family court had dismissed the man’s divorce plea as he failed to provide sufficient evidence to prove the cruelty allegations against his wife. He alleged her of improper behavior towards his parents and other family members during her short-term stay at their matrimonial home.
Moreover, he argued that she had refused to cohabit and also consummate their marital relationship suggesting her intentions were not to start a family but solely to lose her virginity. He also made allegations of having undisclosed meetings with individuals from her village even after objections from family members.
The Court was informed that when the wife told her husband about her poor health and requested financial assistance for treatment, so he took her to a doctor. An ultrasonic test was conducted as advised by the doctor.
The test reports revealed that the wife had a cyst in her uterus and no eggs-making conception. Due to this, the possibility of her of conceiving a child was nominal.
It was also highlighted that the petitioner was a 24-year-old man who was in a healthy state and he also desires to have a happy family and become a father. However, the respondent-wife is not willing to cohabit and can’t bear children, it was contended.
After examining arguments and evidence provided, the Court noted that the divorce petition was filed within two years of marriage in which, the wife had lived for a mere two months with the husband.
The Court stated that the ground of desertion was not established, as per Section 13 (1)(b), which requires continuous desertion for at least two years immediately preceding the current petition.
It also noted that it came up since the wife was having a cyst in her uterus and was unable to bear a child, the husband wanted to divorce her to remarry another woman who can give her the happiness of being a father. However, the Court didn’t find any evidence supporting behavioral misconduct constituting cruelty, except for the wife’s purported refusal to live together with the husband.
The husband had also not initiated any legal action for the restitution of conjugal rights under Section 9 of the Hindu Marriage Act, suggesting that his claim of refusal to cohabit was unsubstantiated, the Court also noted.
“We find that there is no merit in the present appeal warranting any interference in the impugned judgment. The Family Court has rightly dismissed the matrimonial case of the appellant seeking divorce.” the Court said and dismissed the plea filed by the husband.
Advocate Shyam Sunder represented the petitioner.
Source: https://www.barandbench.com/news/litigation/inability-wife-bear-child-not-impotence-ground-divorce-hindu-marriage-act-patna-high-court
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