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Husband cannot be forced to procreate during judicial proceeding: Bombay HC
Justice Ravindra V Ghuge while allowing a petition challenging the previous order held that “Seeking directions to forcibly have a second child during the pendency of a petition seeking restitution of conjugal rights, would be detrimental to the mental growth of the child.” The issue in the present petition was “Whether the demand of an estranged wife, before the Family Court in a pending petition for restitution of conjugal rights that, the husband shall restore sexual relations and bear a second child from his wife or he be subjected to IVF so as to let the wife give birth to a child, is legal and sustainable?” The bench stated that it was conscious of the proceedings that were presently continuing and would hence refrain from the two separate proceedings initiated by them. The proceeding led by the wife moved the court with the prayer for the allowance of the husband to establish physical relationship or that he be subjected to the IVF procedure.
The wife already has one male child residing with her. She desired another child stating that if t elder son went abroad for education, the other child would give her company as with advancing age she might not remain in the physical condition of conceiving a child. The petitioner husband prayed that no man could e forced to have sex without free consent. The HC, during the hearing asked the advocate if it was possible to go back to the wife and resume the wedded life to which t6he husband expresse3d strong dissent. The Family Court after hearing out the matter suggested that:
- Petitioner and respondent shall meet the Marriage Counselor
- Marriage Counselor shall assist the petitioner and respondent to seek appointment of Dr Galatri Wadekar, Obstetricians & Gynecologists, IVF Expert, within one month from the date of this order for clinical consultation about the ART procedure in their case.
The HC in this matter stated that the husband had no tried to contact the child and that the child had been neglected. The HC also noted that the view of the Family Court upholds notions of the western world and considered the order to be shocking to the judicial conscience of the Court:
“A woman’s right to procreate, specially when it is a bonafide and legitimate wish, will have to be respected and the right to reproduce is a very intricate feminine right emanating from the woman’s basic human right. Not allowing a fertile woman to procreate is like compelling her to sterlize. To curb or to curtail reproductive right may have subtle and devastating demographic outcome.” The Court also asked the parties to show one such exemplary case where the wife or the husband was compelled to forcibly bear a child by judicial order. The HC thus quashed the impugned order stating that “as the law stands today, there cannot be such a direction notwithstanding the submission of Mr Salunke that the male sperms are not the exclusive property of a husband.”
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