Priyanka Singh
Published on: October 7, 2022 at 21:33 IST
In a recent hearing, the Bombay High Court faced the question of whether the decision of termination of pregnancy is of a woman’s or her husband’s and that, termination of such pregnancy without the consent of her husband will constitute to cruelty under the Hindu Marriage Act.
Here, the Divisional Bench of Justice Urmila Joshi-Phalke and Justice Atul Chandurkar remarked that “a woman cannot be forced to give birth to a child,” and that the Right of Reproductive Choice is an “insegre1gable part of her personal liberty under Article 21.”
The High Court also added that the willingness of a woman to work after marriage wouldn’t be termed as cruelty.
The High Court further dismissed the husband’s appeal filed against a family court’s order allowing the wife’s plea for the restitution of conjugal rights, thus, dismissing the husband’s petition for divorce under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act.
The husband, 47, a teacher by profession, married to his wife, a teacher as well sought for a divorce on grounds of desertion and cruelty.
The marriage took place in 2011 after which the wife insisted on working while also accusing her of terminating her second pregnancy without his consent, amounting to cruelty.
The husband alleged that the wife left the house with his son and did not return to him since 2004, therefore deserting him.
The wife submitted contrary to the husband’s statements and said that post her successful birth of their son, she terminated her pregnancy due to her ill health and that, the husband did not try retrieving her back home into the house between the years 2004-2012 and neither did he pay for their son’s livelihood during their separation.
She added that the reason that she left the house was the husband and his sisters’ constant suspicion regarding the woman’s character.
The bench held that none of the parties had suitable evidence to support their claims of termination of the woman’s pregnancy, yet, the woman had already given birth to a single child and had refused to work in his infancy, hence, “admittedly inference could not be drawn that the respondent/wife was not ready to accept the responsibility of the child,” as observed by the court.
The Court notified that the burden was on the husband (appellant) to prove that the termination of pregnancy was a result of the woman’s displeasure as claimed by him.
The court further termed the husband’s contention of his wife’s harassment for a job as ‘vague’ and indefinite.
Court’s observation in regards to the wife’s submission was in agreement that if a woman’s character is questioned, it becomes difficult for her to survive at her matrimonial house.
Thus, the bench concluded that a ground of desertion cannot be inferred upon in this case merely due to the separation of the couple and the marriage cannot be dissolved.