Bombay HC Quashes Order Directing Husband To Visit IVF Expert To Fulfill Wife's Wish For Second Child [Read Judgment]

Justice RV Ghuge of Aurangabad bench said that the family Court's order was "shocking to the judicial conscience of the Court."

Court was hearing the writ petition filed by the husband, KGP challenging the order of the Family Court. The Family Court passed the order while hearing a petition for restitution of conjugal rights filed by the respondent-wife, PKP, seeking directions to her estranged husband to restore sexual relations and bear a second child with her or he be subjected to IVF.

Case Background

The couple were in an arranged marriage which began on November 18, 2010 and the child was born on June 4, 2013. Both are qualified doctors. Although the couple has one 6-year-old boy, who resides with the mother, she still wanted a second child from the estranged husband. According to the wife, in future their son is likely to go abroad for education or a job and she would be alone. The second child would keep her company, she contended. "It would be psychologically advantageous for the mental and physical growth of the first child and both the children would grow up together with the feeling of caring and sharing."

It is also stated, as one of the reasons to compel the husband to have a second child that, the wife is about 35 years of age and it is the right age to have second child, as with advancing age, she may not be physically and mentally in a position to do so.

In the matters of conceiving and procreating a child, men and women are not similarly situated. Therefore, women will always have an upper hand in the matter of reproduction, respondent's lawyer VD Salunkhe argued.

On the other hand, the petitioner husband had filed a divorce petition before the same family court in Nanded. He had contended that no spouse can be compelled to have sex either directly or indirectly, without free consent.

The petitioner then went on to aver that the primary reason for seeking divorce was his wife's unruly behaviour. He submitted that she abused him, used filthy slang which he said he never imagined his wife would do. He also stated that once he came back from a trip to Kerala with his mother when the respondent wife abused him stating that his wife is not enough for him sexually, he needs his mother. Another instance was pointed out by the petitioner when the respondent wife made similar comments alleging an incestuous relationship between him and his mother.

The Family Court concluded that a woman's right to procreate, especially when it is a bona fide and legitimate wish, will have to be respected and the right to reproduce is a very intricate feminine right emanating from the woman's basic human right. Not allowing a fertile woman to procreate is like compelling her to sterilize, the order states.

Family Court also noted that the wife's desire for a second child is so earnest that she also absolved the husband from bearing any maintenance expenses.

Judgment

Court asked the petitioner's counsel AM Gaikwad about the possibility of a reconciliation between the estranged couple, Gaikwad took instructions and submitted –

"Considering the behaviour of the wife including the incident when she attempted to strangulate the petitioner with a wire in his own clinic in the presence of patients and with what he has suffered, it is impossible for him to even think of cohabiting with her."

After going through the averments and submissions, Court pointed out –

"This Court cannot turn a blind eye and appear to be insensitive to the future of the 'probable child' which, neither the couple before the Court has considered, nor has been considered bl the Family Court.

In my view, the growth of such a child who would eventually get knowledge of the circumstances in which he was brought to this earth, would have a devastating effect on his mental growth."

Thereafter, Court reproduced certain key observations of the Family Court's order and observed-

"To say the least, I find such conclusions to be shocking to the judicial conscience of the Court.

I find that the trial Court has completely lost sight of the fact that the growth of a child is not money centric but is family centric. The growth of a child, both mental and physical, to make a child an able, capable and competent human being with normal predisposition and bereft of mood swings, could only occur in a congenial family structure."

Justice Ghuge further observed-

"The possibility that the couple may come together is a matter of speculation and neither the couple nor the Court can be prophetic. This aspect will have to be left for time to decide since, time heals all wounds.

But, seeking directions to forcibly have a second child during the pendency of a petition seeking restitution of conjugal rights, would be detrimental to the mental growth of the child."

Allowing the husband's petition, the bench noted-

"Both the sides have relied upon several judgments. In none of them, do I find any direction by any Court, at the request of the estranged partner that the other partner should forcibly forebear a child.

In my view, as the law stands today, there cannot be such a direction notwithstanding the submission of Mr. Salunke that the male sperms are not the exclusive property of a husband."

Thus, Family Court order was quashed and set aside.

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