Bombay High Court: Ravindra V. Ghuge, J., while allowing the present petition and setting aside the impugned order of the Family Court, stated that:

“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.”

The issue in the present petition that has been cropped up is:

Whether the demand of an estranged wife, before the Family Court in a pending petition for restitution of conjugal rights that, the husband shall restore sexual relations and bear a second child from his wife or he be subjected to IVF so as to let the wife give birth to a child, is legal and sustainable?”

Bench stated that it is conscious of the pending proceedings between the parties and would refrain from dealing with the allegations in the two proceedings initiated by them.

In the pending proceedings initiated by the wife, she has moved an application praying that the husband be directed to develop physical relations with the wife or he should be subjected to the IVF procedure.

The Couple has one male child residing with the wife, she still desires to have one more with estranged husband and reasoned it by saying that in future the son would go abroad for education or a job and she would be alone and in that case, the second child would give her company.

Wife also stated that 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, lest with advancing age, she may not be physically and mentally in a position to have a second child.

Petitioner-Husband opposed the application and specifically averred that no spouse can be compelled to have sex, directly or indirectly without free consent. He further states that the application be rejected and there should be no order to the petitioner-husband to develop physical relations with the wife or a direction to undergo any mode of procreation.

Husband narrated before the High Court a list of cases filed by both the parties against each other in various police stations.

High Court while the hearing was going on, called upon the advocate for the husband to take instructions as to whether his bitter experience could be forgotten and the couple could come together. Advocate submitted that considering the behaviour of the wife to strangulate the husband in his own clinic and what he has suffered, it is impossible for him to even think of cohabiting with her.

Advocate for the wife submitted that she desires a second child from the petitioner-husband. She has filed a proceeding for restitution of conjugal rights as she desires to live with the petitioner husband.

Family Court had issued the following directions:

  • Petitioner and respondent shall meet the Marriage Counselor
  • Marriage Counselor shall assist the petitioner and respondent to seek appointment of Dr Galatri Wadekar, Obstetricians & Gynecologists, IVF Expert, within one month from the date of this order for clinical consultation about the ART procedure in their case.

 Advocate for the husband insists that when he does not even desire the company of the wife, he is not agreeable for having a child by whatever procedure and does not desire to be a party to the wife conceiving a second child per force.

Advocate for the wife submits that the wife has a desire to have a second child and that is her fundamental right and a natural right recognised by the Indian society. There is no perversity in the order passed by the Family Court.

Adding to his above contentions, the advocate for the husband submits that he has suffered untold miseries on account of the behaviour of the wife, especially the manner in which she used to abuse him in filthy language and the incident of assault.

High Court’s observation and conclusion

The High Court on noting the Family Court’s decision stated that it 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 by the Family Court.

Court stated that none belonging to the immediate family of the husband has even cared to inquire as to how the son (the child of the couple) is growing up. The child feels neglected and is presently in the company of its mother.

People seldom fathom the effect of stunted mental growth or the mental growth of a child suffering on account of such circumstances.

Court states that it appears from the impugned judgment of the Family Court that it considered the institution of marriage from the angle of the western world and certain writings/literature available in the documents of the International Organization.

High Court expressed the following conclusion of the Family Court to be shocking to the judicial conscience of the Court:

“A woman’s right to procreate, specially when it is a bonafide 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 sterlize. To curb or to curtail reproductive right may have subtle and devastating demographic outcome.”

Court adds to its observation 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.

High Court further asked the advocates for the parties to point out a single judgment before the Court that have been cited in the present matter which would suggest or lay down the law that in a marriage or even in a case of marital discord wherein the partners re estranged, Court accepted the wish either of the wife or the husband to compel the partner to forcibly forbear a child.

Court quashed the impugned order of the Family Court allowing the present petition and stated that,

“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.” [KGP v. PKP, 2019 SCC OnLine Bom 5305, decided on 21-11-2019]

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