“Under Hindu Law Marriage Is Sanskar, Not Contract”, Pre-Condition For Marriage To Deprive Wife From Motherhood Can’t Be Effected: Chhattisgarh HC

The Chhattisgarh High Court has recently ruled that setting a pre-condition for marriage to deprive the wife from begetting child of her own cannot be enforced in law. The Division Bench of Justice Goutam Bhaduri and Justice N.K. Chandravanshi said,

“To deprive a woman from motherhood as a pre-condition for marriage cannot be given a priority. The type of condition set forth by husband only adds gloomy atmosphere to a married life as against a cheer by a child. Therefore, a demand to have child by wife from husband cannot be constituted a cruelty.”

Contentions of Parties

It was submitted for the appellant-husband that he being a divorcee, the second marriage was performed on the condition that they would not have a child as he already had a child from his first marriage.

But subsequently, the wife started exerting pressure and treated his son with cruelty. Thus, under those circumstances, the husband succumbed to the pressure and agreed for a child through IVF procedure.

It was further submitted that the husband consented for the IVF pregnancy with his own sperm, but the wife created undue pressure and without intimating the husband got herself pregnant by sperm of an anonymous donor.

It was argued that the conduct of the wife to get pregnant by sperm of outside donor despite the husband was capable to give sperm, amounts to mental cruelty. Also, as the child from the first marriage was subjected to cruelty and torture, the husband is entitled for a decree of divorce.

On the other hand, it was submitted for the respondent-wife that the document of IVF treatment would go to show that the husband was the consenting party to such pregnancy from sperms of outside donor.

While treatment was going on, no complaint was made by the husband either before any of the authorities or before any of the members of the family that such undue pressure was created by the wife. Therefore, there was no undue pressure.

It was stated that the IVF treatment for pregnancy involves huge expenses which was paid by the husband which would show that he was the consenting party to the entire procedure. So far as the cruelty to the son was alleged, it was argued that the same has not been proved by any evidence.

Court’s Observations

The Court observed that under the Hindu religion, marriage has a sacred character of sacrament and it is necessarily a basis of social organisation and the foundation of important legal rights and obligation.

“The importance and imperative character of the institution of marriage needs no comment and in Hindu Law marriage is a Sanskar. Therefore, presumed contract as has been stated by the appellant/husband that the second marriage was performed on the condition that they would not have a child from the second marriage cannot be a barrier as a valid sacred promise, if not performed, will assume the character of cruelty.”

The Court further made reference to the cross-examination of the appellant where he had admitted that after the marriage, the wife left her job and was dependent on him. Thus, it was made to infer that the husband has paid the medical bills of the wife.

“Conduct of the parties further would show that after the wife got pregnant and it was detected that she had three embryos, out of it one was removed for which they travelled to Delhi to the experts. The husband also accompanied. This would also lead to show that he was the consenting party to the entire initiation which was at the behest of both the husband and wife,” the Court added.

The Court also discarded the argument that despite he was capable to donate the sperm, the wife got pregnant from outside donor as during the IVF treatment, both the husband and wife had agreed that pregnancy may be carried out by anonymous donor’s sperm. Therefore, the Court did not concede to the argument that such conduct of the wife amounts to cruelty.

It further noted that appellant’s son from the first marriage was not examined before the Court. Therefore, it held, the best evidence which was available to the appellant to prove cruelty meted out to the child by the respondent was withheld. Thus, it held, in absence of any evidence, inference of cruelty cannot be drawn.

Accordingly, the appeal was dimissed.

Case Title: P. Venkat Rao v. Smt. P. Padmavati

Case No.: First Appeal (M) No. 138 of 2018

Citation: 2023 LiveLaw (Chh) 11

Date of Order: March 9, 2023

Counsel for the Appellant: Mr. Srinivas Rao, Advocate

Counsel for the Respondent: Mr. Shashank Thakur, Advocate

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