While rejecting a man's plea challenging the orders of Family Court's rejectig his matrimonial case for divorce under Section 13 of the Hindu Marriage Act, the Patna High Court said the inability to bear a child is not a valid ground for dissolving a marriage.

The division bench of Justice Jitendra Kumar and Justice P. B. Bajanthri said that developing any disease during the continuation of marriage is not within the control of any spouse.

In the said matter, the wife is having a cyst in her uterus and is unable to bear child, the husband wants to divorce her to get remarried with another woman so that he can have a child.

"In such a situation, the other spouse has a marital duty to co-operate and bear with it and help the other spouse. It is also worth mentioning that 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 bench said.

 He had alleged that his wife's conduct towards his parents and family members was improper during her brief stay at their matrimonial home.

He further claimed that his wife refused to cohabit and consummate the marriage, alleging that her intentions were not to start a family "but merely to break her virginity". He also claimed she had undisclosed meetings with people from her village, despite objections from the family members.

"The petitioner-husband is a young man of 24 years of age having good health needing cohabitation and having desire to become a father but the respondent-wife is neither willing to cohabit nor is any possibility of her becoming a mother," it was submitted before the court.

The court at the outset observed, “As such, ground of desertion is not made out because as per Section 13(1)(b), desertion must be for a continuous period for not less than two years immediately preceding the present petition.”

“However, such allegation and deposition regarding refusal of cohabitation by wife with the appellant-husband does not appear to be reliable, in view of the finding that even after return of the Respondent-wife to her parental home, the Appellant-husband was in touch with her and that is why when she fell ill, she informed the appellant-husband and the appellant-husband took her to a doctor for treatment,” the court observed.

The court further observed that the husband had not taken any legal steps for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, indicating that the claim of refusal to cohabit lacked grounds.

“From the pleading and evidence on record, it also appears that when the husband-appellant came to know, after medical examination of the wife-respondent, that the respondent-wife is having cyst in her uterus and she is unable to bear child, the husband wants to divorce her to get remarried with another lady so that he can have child. Such motive of the appellant-husband is clearly apparent from the pleading and evidence,” it said, while upholding the Family Court's ruling.

Case Title: SK vs. RD