This is a 2019 case and needs to be told, as the same raised several questions about the Rights of Men in matrimonial matters. This case also throws light on how certain lower court judges go to any extent to rule in favour of women, while Men and their basic fundamental rights are violated.
Couple of years ago, Nanded Family Court in Maharashtra granted a woman’s plea to bear second child with her estranged husband, by directing him to donate his sperm for IVF. The family court remarked that it was “basic civil rights” of the estranged wife, to have a baby from her husband, despite a divorce petition pending between the two since some years.
The husband was seeking divorce from the woman on the grounds of cruelty, while the wife had filed a complaint against him under Section 498A (cruelty by a husband or his relatives / dowry harassment) of the IPC. The couple was fighting this IVF plea battle since two years. The estranged couple already has a seven-year-old son, who is in the custody of his mother.
Woman’s Plea In Nanded Court
The woman contented that her son may need company and support of a sibling in order to teach him caring and sharing in future. The woman also said that she was 35-years of age and her fertility count and strength to bear and rear a child was on the decline. In her plea, she said:
I want to have a family, but I don’t know how much time it would take for the divorce proceedings to conclude. I cannot wait till then to start a family, it might take 10-15 years.
The estranged wife further added that she did not intend to marry again and this is what compelled her to approach the court. It is pertinent to note, that during the hearing, the woman gave an undertaking that she would not claim maintenance for the second child and would also withdraw the case she filed against her husband under Section 498A.
Arguments by Husband
M.A. Rahman Siddiqui, lawyer of the husband submitted that such an application was not tenable in the eyes of law and should be rejected as it was illusionary and against social norms. He also refused a request to procreate child through IVF. He submitted that no spouse can be compelled to have conjugal relations directly or indirectly without free consent. Speaking with The Print, Siddiqui said,
This judgment is against the well-settled principles of law, because it is settled that no person can be compelled to have sex, directly or indirectly. Directly by physical relations or indirectly by IVF.
Adding further he quoted,
If the husband compels his wife to do it against her will, then it is an offence. In addition to this, the Supreme Court has held that even for criminal cases, even a blood sample cannot be taken from an accused without his consent.
Nanded Family Court
Family Court Judge Swati Chauhan ordered in favour of woman and instructed the husband to donate his sperm so that the couple could bear a second child.
Under Article 14 of the Indian Constitution, the fundamental rights guarantee ‘right to equality’ to both men and women. There are series of judgments from Honourable Supreme Court which say that ‘right to equality’ is guaranteed to men and women if they are ‘similarly situated’. In the matters of conceiving and procreating a child, the judge said, men and women are not similarly situated. Therefore, she ruled that women will always have an “upper hand in the matter of reproduction”.
The role of men, she asserted, can be to “propagate responsible fatherhood and gender equality by supporting the women’s choice of family planning”. The court also cited foreign judgments where courts held that refusal of sexual intercourse without sufficient cause amounted to cruelty. It then asserted that if the husband refused consent without sufficient cause, it could entail legal consequences. The court observed,
The respondent may refuse for ART (assisted reproductive treatment) by not giving his consent. But, by unreasonable refusal, he may expose himself to the legal and logical consequences that may follow.
While husband’s lawyer was all set to challenge this order in High Court, the wife’s lawyer, Advocate Shivraj Patil, was all set to file a contempt plea against the husband in case he did not comply with the family court’s order.
Bombay High Court Aurangabad Bench
The matter subsequently reached High Court where the husband pleaded that he had no desire to have a second child from his estranged wife “under any circumstances”.
Holding the wife’s plea “premature”, Justice R V Ghughe said,
In my view, as the law stands today, there cannot be such a direction. The family court took a “western view’’ of marriage in accepting that woman has reproductive choice. The conclusion that women will always have an upper hand in matters of reproduction is unsustainable.
The bench further added,
Pending divorce and other proceedings, a woman in Nanded wanted a second child through sperm donation from her estranged husband, without his financial assistance. The family court order completely lost sight of the fact that the growth of a child is not money- but family-centric.
When Genders Get Reversed
The Print then spoke with legal experts in the field who gave their respective perspectives in the said case.
Senior Advocate Geeta Luthra said that the family court order was “unfair”. A man, she added, could not be forced to father a child. She then quoted,
Ultimately, it is a matter of choice. You can’t force a woman to become pregnant or carry a child. Based on what I understand, it’s not correct…You just reverse the roles… Would you do this to the woman?
Senior Advocate K.T.S. Tulsi called the judgment “absurd”, saying “courts can’t get into the bedrooms of people”. He added,
I don’t think this is a judicially-manageable issue. There is no such provision in law where someone can be compelled to have sexual relations. If a contract of service can’t be forced, how can conjugal rights in marriage be forced on anyone?
Tulsi even called the family court order totally wrong. He said,
There is no question of any right appropriation. When a husband forces a wife, it is said that it’s marital rape. So how can anybody force another party? He has a right on his own body. If he doesn’t want to do it, he doesn’t want to do it.
Senior Advocate Sanjay Hegde too, echoed his opinion in favour of the husband where he said,
The man has as much a right to privacy and to decide whether he wants to have a child or not.
Senior Advocate Karuna Nundy, however, said the order had been unfairly portrayed by the media. Nundy said that the order did not force the husband to undergo the process, but merely stated that his refusal “could be a grounds for divorce”. She added,
The way that the order has been characterised in most of the media is unfair. It does not seem to be that the judge was forcing the husband to procreate with his wife through IVF even though they were separated.
What she (the judge) was saying was that if the wife says she wants to have a child and the husband says no even through IVF, then it can constitute cruelty for the purpose of a divorce decree.
Author: Nandini Shah is a 3rd year Bachelors of Journalism student and currently working as an intern with MDO.
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