patna high court

Patna High Court: In an appeal filed by the appellant for divorce under Section 13 of the Hindu Marriage Act, 1955 (‘HMA’) against the respondent on the grounds of cruelty by her, the Division Bench consisting of P.B. Bajanthri and Jitendra Kumar*, JJ. dismissed the appeal from the impugned decision of the Family Court and held that the inability to bear a child was not a valid ground for dissolving marriage.


The appellant had earlier prayed for dissolution of marriage before the Family Court, on the ground of cruelty by the respondent, wherein despite service of notice, the respondent did not appear before the Family Court and hence, she was proceeded ex parte. However, the Family Court dismissed the matrimonial petition as the appellant failed to prove the allegation of cruelty allegedly committed by the respondent against him.

The appellant submitted that the marriage between him and the respondent solemnized in 2015 and that the respondent does not have mental balance and she refused to cohabit and consummate the marriage saying that she had not married for making a family but to break her virginity. It was further submitted that during her stay at parental home, she informed the appellant about her ill health and asked him for money for treatment. Hence, the appellant took the respondent for her treatment. As per the advice of the doctor, ultrasonic test of her uterus was done and as per the report, the respondent had cyst in her uterus, and she was not having eggs in the uterus and therefore, there was least possibility of her becoming a mother.

The appellant additionally submitted that he was a young 24-year-old man having good health, who needed cohabitation and had desire to become a father, but the respondent was neither willing to cohabit nor was there any possibility of her becoming a mother.


The Court opined that it found no specific evidence of behavioural misconduct amounting to cruelty except the allegation that the respondent refused to cohabit with the appellant. However, the Court did not find such allegations and depositions regarding refusal of cohabitation by the respondent to be reliable in view of the finding that even after return of the respondent to her parental home, the appellant was in touch with her and that was why when she fell ill, and she informed the appellant and then he took her to a doctor for treatment.

The Court further observed that the husband had not taken any legal steps for restitution of conjugal rights under Section 9 of the HMA, therefore, the allegation of the appellant regarding refusal to cohabit did not hold ground.

The Court noted that the divorce petition was filed within two years of marriage and the respondent had lived with the appellant only for two months, thus, the Court ruled out the possibility of claiming desertion as a ground for divorce because as per Section 13(1)(b) of HMA, desertion must be for a continuous period for not less than two years immediately preceding the present petition.

The Court further observed that it was apparent that when the appellant came to know, after medical examination of the respondent, that she was having cyst in her uterus and was unable to bear a child, the appellant wanted to divorce her to get remarried with another lady so that he could have children. The Court opined that developing any disease during the continuation of marriage was not within the control of any spouse. In such a situation, the other spouse had a marital duty to co-operate and bear with it and help the other spouse.

The Court observed that the inability to bear a child was neither impotence nor any ground for dissolving the marriage. Such possibility of inability to bear a child might be part of marital life of anybody and parties to a marriage might resort to other means for having a child, such as adoption. The Court opined that divorce was not provided as per the HMA in such circumstances and further dismissed the appeal stating it as bereft of merit. The Court further held that the Family Court had rightly dismissed the matrimonial case of the appellant seeking divorce.

[X v. Y, 2023 SCC OnLine Pat 2247, decided on 19-07-2023]

*Judgement authored by- Justice Jitendra Kumar

Advocates who appeared in this case :

For the Appellant/s- Advocate Shyam Sunder Pandey.

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