“RIGHT TO REPRODUCE IS A VERY INTRICATE FEMININE RIGHT”-

DIRECTS MAHARASTRA COURT

-APPORV PAL

BACKGROUND:

“...right to reproduce is a very intricate feminine right emanating from woman’s basic human
right. Not allowing a fertile woman to procreate is like compelling her to sterilise. To curb or to
curtail reproductive right may have subtle and devastating demographic outcome." - says Swati
Chauhan, the Hon’ble Judge of the Nandet Family Court, while passing the orders of the case of
a 35 year old women who requested to have a child through IVF(In-Vitro Fertilisation) from her
estranged husband. IVF is a technique by which women can attain pregnancy without having
sexual intercourse. The petitioner is the wife who pleaded for having another child through
restitution of conjugal rights under section 9 of Hindu Marriage Act, 1955. She prayed for
procreation from the respondent, her husband, either through restoring her conjugal rights or
through IVF technique. Both of them are doctors and are caught in a matrimonial conflict.
Section 9 states that: “When either the husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved party may apply, by petition to the district
court, for restitution of conjugal rights and the court, on being satisfied of the truth of the
statements made in such petition and that there is no legal ground why the application should not
be granted, may decree restitution of conjugal rights accordingly.” In 2017 a separate petition
seeking for divorce was filed by the husband, in another court, under section 13 (1) (i-a) of
Hindu Marriage Act, 1955. This section talks about cruelty by a partner on the other partner.
Earlier this, the wife had filed a petition for claiming maintenance for her and for her son under
section 125 of CrPC but in the recent plea she promised that if the husband will give his consent
for another child she will withdraw to take back the criminal case and she is also ready to bear
the expenses of the second child.

CURRENT ISSUE:

The wife made the plea for second child with her estranged husband either through IVF or
through restoring her conjugal rights. Advocate Shivraj Patil is the counsel for the petitioner
through which she conveyed to the court that her fertility and strength to bear a child will decline
with age. He further argued: “If a single child of a single parent on attaining adulthood migrates
for career purpose, then the said parent will have to lead an isolated life with no family.”

The husband opposed the plea and through his counsel he questioned for the legality and
permissibility of plea in the eyes of law. He further said that the plea is illegal, illusion and are
against social norms and argued: “No spouse can be compelled to have conjugal relations
directly or indirectly, without free consent.”

Since two matrimonial pleas are pending in other courts the plea to restore conjugal rights cannot
be considered. Agreeing with the second contention of her right to procreate through IVF the
court stated international laws, treaties and Indian case laws. It was said in the United Nations
International Conference on Population and Development, held in 1994, that “A key aspect of
personal autonomy are reproductive rights, which entail rights to make sexual and reproductive
decisions”.

Further the court said that right to reproduce is very intricate feminine right emanating from
basic human right and held that unreasonable restrain should not be placed on a woman’s right to
procreate and held “The petitioner’s request to the respondent to donate his sperms can be said to
be a legitimate eugenic choice of petitioner. It is not a complex situation like surrogacy where
three or four people are involved as the persons involved are wedded husband and wife.”

For this the consent of husband is also very important without which this is illegal. The husband
can refuse for the consent but for such refusal he should give a reason otherwise he may expose
himself for legal consequences.

After summing up all the arguments, facts and judgments of other cases the court ordered that
the petitioner has a right to procreate and she is entitled to exercise it and directed the couple to
consult with marriage counselor and fix meeting with IVF expert within one month. The
confidential IVF report must be submitted to court by the IVF expert. All the expenses must be
cleared by the wife only and also rejected the claim of maintenance pleaded by the wife for their
son.

CONCLUSION:
In its order the court partially disagreed with the petitioner by rejecting plea to restore conjugal
rights since two more matrimonial pleas of them are pending in other courts. The court agreed
with the petitioner to procreate through IVF but with the consent of the respondent. If her
husband disagrees with the consent he should give a proper reason for disagreeing otherwise
legal action can be taken against him. They directed them to meet with marriage counselor and a
meeting with IVF expert must be fixed the expenses of which must be cleared by the petitioner.
They further rejected the plea of maintenance by the wife since she also earns money and is
capable of taking care of his son.