Inability of wife to bear child neither impotence nor ground for divorce under Hindu Marriage Act: Patna High Court

The Court held that, inability to bear a child is a natural aspect of married life, and couples can consider adoption or other alternatives for having children.

Inability to conceive a child is neither considered impotence nor a valid reason for dissolving the marriage, the Patna High Court recently held. [Sonu Kumar v Rina Devi]

The Hindu Marriage Act does not allow for divorce on the grounds of infertility, a bench of Justice Justice Jitendra Kumar and Justice PB Bajanthri underscored.

Inability to bear a child is a natural aspect of married life, and couples can consider adoption or other alternatives for having children, the bench added.

“Inability to bear a child is neither impotence nor any ground for dissolving the marriage. Such possibility of inability to bear a child may be part of marital life of anybody and parties to a marriage may resort to other means for having a child, such as, adoption. Divorce is not provided as per the Hindu Marriage Act in such circumstances,” the Court said.

Thus, the Court dismissed a man’s revision plea challenging the family court’s decision which had rejected his divorce petition, filed under Section 13 of the Hindu Marriage Act.

The man’s plea for divorce was dismissed by the family court, as he failed to substantiate the cruelty allegations against his wife. He had accused her of improper behavior towards his parents and family during her short stay at their matrimonial home.

Additionally, it was his argument that she had refused to cohabit and consummate the marriage suggesting her intentions were not to start a family but solely to lose her virginity. He also alleged that she used to have undisclosed meetings with individuals from her village despite objections from family members.

The Court was informed that when the wife told her husband about her ill health and requested financial assistance for treatment, he took her to a doctor and based on the doctor’s advice, an ultrasonic test was conducted.

It revealed that the wife had a cyst in her uterus and no eggs making conception and motherhood unlikely.

It was pointed out that the petitioner-husband was 24 years old and in good health and desirous of having a family and becoming a father. However, the respondent-wife is unwilling to cohabit and cannot bear children, it was contended.

After examining the arguments, the Court noted that the divorce petition was filed within two years of marriage, and the wife had lived with the husband for a mere two months.

The Court stated that the ground of desertion was not established, as per Section 13(1)(b), which requires desertion to be continuous for a minimum of two years immediately preceding the current petition.

The Court further noted that it appeared since wife was having a cyst in her uterus and was unable to bear child, the husband wanted to divorce her and remarry another woman so that he could have a child.

The Court did not find any concrete evidence of behavioural misconduct constituting cruelty, except for the wife’s purported refusal to live together with the husband.

The husband had not initiated any legal action for the restitution of conjugal rights under Section 9 of the Hindu Marriage Act, suggesting that his claim of refusal to cohabit was unsubstantiated, the Court noted.

“We find that there is no merit in the present appeal warranting any interference in the impugned judgment. The Family Court has rightly dismissed the matrimonial case of the appellant seeking divorce.

Hence, the Court dismissed the husband’s appeal.

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