In a significant order, the Nagpur bench of the Bombay High Court noted that a husband cannot force his wife to give birth. The bench noted that wife desire to work after marriage and not having a child till then cannot be termed as cruelty under Hindu Marriage Act.
The division bench comprising Justice Atul Chandurkar and Justice Urmila Joshi-Phalke noted, “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 is an insegregable part of her personal liberty as envisaged under Article 21 of the Constitution of India.”
High Court dismissed the appeal filed by the husband challenging a Family Court’s order wherein wife’s plea for restitution of conjugal rights and dismissing the husband’s petition for divorce u/s Section 13(1)(ia) and Section 13(1)(ib) of the Hindu Marriage Act was allowed.
47-year-old husband had sought a divorce on the grounds of desertion and cruelty. He submitted that the wife insisted on working since the inception of their marriage in 2001. He also stated that his wife had terminated her pregnancy without his consent and thereby, subjected him to cruelty. In the petition, he mentioned that his wife left her matrimonial home with their son and deserted him.
On the other hand, the wife submitted that having her first child was an indication of the acceptance of motherhood on her part. She added that she terminated second pregnancy due to her sickness and also her husband had not made efforts to bring her back to their matrimonial home after she left due to his family suspecting her chastity.
Though the parties were not able to produce any evidence in connection to the basis for termination of pregnancy, the court noted that it could not be considered that she was reluctant to embrace motherhood.
The bench went on to add that the wife making a reproductive choice cannot be termed as cruelty.
Finding that the husband’s allegations of harassment on the part of his wife for a job are vague and lack any specifics, the bench observed, “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.”
Talking about the wife leaving her matrimonial home, the bench said, “It is obvious that whenever a character was suspected, it is difficult for a woman to stay in a matrimonial house.”
The bench dismissed the petition and refused to grant a divorce to the husband.
