Husband Can't Force Wife To Give Birth, Reproductive Choice Insegregable To Woman's Personal Liberty: Bombay High Court

The division bench of Justices Atul Chandurkar and Urmila Joshi-Phalke underscored that a woman "cannot be forced to give birth to a child."

"Even the contention of the appellant/husband is accepted as it is, it is well settled that the right of a woman to have reproductive choice is an insegregable part of her personal liberty as envisaged under Article 21 of the Constitution of India," the court observed.

The High Court also held that a woman wanting to go for work after marriage wouldn't be termed as cruelty.

The bench dismissed the appeal filed by the husband against a family court's order allowing the wife's plea for restitution of conjugal rights and dismissing the husband's petition for divorce u/s Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act.

The husband (47), a teacher sought divorce from his wife, also a teacher, on the ground of cruelty and desertion. He alleged that since the inception of their marriage in 2001 his wife insisted on working, further accusing her of terminating her second pregnancy without his consent and thereby subjecting him to cruelty. The husband claimed his wife left the house with his son in 2004, never to return and therefore deserted him.

On the contrary, the wife through her lawyer argued that she had delivered their first child indicating her acceptance of mother-hood. The second pregnancy was terminated in her sickness and that the man had made no effort from 2004-2012 to bring her back into the house or pay for their son's livelihood. Moreover, she left the house because the man and his sisters were constantly suspecting her character.

At the outset the bench held that it cannot be borne out from the statements of witnesses that the husband made any attempt to bring the woman back into the matrimonial home before filing the petition in 2012.

The bench held that neither party had adduced any evidence to support their claims regarding termination of the woman's pregnancy. But the woman had already delivered one child and refused to work when he was an infant therefore "admittedly inference could not be drawn that the respondent/wife was not ready to accept the responsibility of the child," the court observed.

The bench added that even if the husband's allegations were taken at face value, the wife cannot be accused of cruelty for making a reproductive choice.

"Coming back to the present case, when the appellant/husband alleges, she terminated pregnancy as she did not want child, burden is on him to prove the same. In the present case, neither the appellant/husband had adduced the evidence that the respondent/wife terminated pregnancy nor the respondent/wife proved a pregnancy was terminated due to sickness," the bench said.

The court found the husband's contention about his wife harassing him for a job, to be "vague" and lacking any specifics.

"The allegations of cruelty cannot be considered on trivial issues. The allegation should have the origin with reference to time, place and manner of cruelty. General allegations of cruelty do not constitute cruelty in the eyes of law so as to grant decree of dissolution of marriage on that premise," the court emphasized.

Regarding the wife's justification for leaving the house the court said, "It is obvious that whenever a character was suspected, it is difficult for a woman to stay in a matrimonial house."

Finally, the bench held that an inference of desertion cannot he drawn merely because the wife was living separately and marriage between parties cannot be dissolved on the averments made by one of the parties that the marriage between them has broken down.

Also Read: Consent Of Woman's Family Not Needed For Abortion, Doctors Cannot Impose Extra Legal Conditions : Supreme Court

Case Title: Pundlik Yevatkar vs Ujwala @ Shubhangi Yevatkar.

Citation: 2022 LiveLaw (Bom) 374 

Appearances – Advocate R.G. Kavimandan for the husband

Advocate D.S. Khushlani for the wife

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