A husband cannot be granted divorce simply on the basis of his wife not being able to conceive and bear children, a family court in Mumbai has ruled.
"Merely for not being able to bear a child for the petitioner-husband due to ovarian failure, it cannot be said that divorce can be granted on the said ground," principal family court judge Laxmi Rao observed, in an order last week.
The couple in question had married in 2004. In the seventh year of their marriage, the husband approached the family court seeking divorce on the grounds of cruelty meted out to him by his wife, desertion by her, and "inability to conceive a child due to premature ovarian failure." At the time of filing of the divorce petition, the husband was 44 and the wife, 42.
The husband's petition alleged that in May 2005, the wife was detected with a bilateral ovarian block because of which she could not become pregnant. On the point of cruelty, the allegation was that the wife started harassing the petitioner soon after their marriage. She would not provide him food, on account of which he was forced to cook himself. He claimed he also had to do the household chores after returning from work in the evening. The wife had treated him and his relatives with cruelty and had, in addition, filed a false police complaint against him, causing him mental torture, he said.
The court, however, rejected all these allegations, saying the husband could not provide evidence for even a single incident of cruelty towards him on his wife's part.
"Except for the fact that the respondent (wife) has been making complaints against the petitioner (husband), there is no other evidence of her committing cruelty on him. Therefore, this court is left with the presumption as to why would the respondent lodge complaints against the petitioner if he was treating her normally," observed the court.
The court then observed that of all the grounds cited by the husband for divorce, the only one left was that the wife unable to conceive because of her medical condition. The family court, relying on a Karnataka High Court judgement, then observed that not being able to bear a child due to ovarian failure cannot be grounds for granting divorce.
The Karnataka HC had observed in its judgement that premature ovarian failure was curable by medical treatment and that its existence cannot amount to mental cruelty. It had also remarked holding ovarian failure as a basis for seeking divorce in fact amounted to taking advantage of one's own wrong -- that of not getting the condition treated.
https://www.mumbaimirror.com/mumbai/crime/Inability-to-conceive-not-a-reason-for-divorce-Court/articleshow/26004629.cms
