The High Court recently quashed a Family Court order directing a man to have a second child with estranged wife through In Vitro Fertilisation (IVF), observing the directive to be 'shocking to the judicial conscience of the Court'.

In June, this year, a family court in Nanded, Maharashtra had allowed a plea made by a 35-year-old medical practitioner woman to have a second child with her estranged husband through IVF, holding that the petitioner had a right to reproduce as an intricate feminine and basic human right.

Notably, the Nanded Court had said that while the husband can refuse consent, such refusal without sufficient cause could entail legal consequences including an action for cruelty. The Family Court had further directed the couple to consult with a marriage counselor and fix a meeting with an IVF expert.

However, the order has now been set aside by Justice Ravindra V Ghuge of the Bombay High Court, while allowing a writ plea moved by the estranged husband challenging the order. Inter alia, the High Court noted,

"The consent of the husband for ART is most essential and preliminary formality required to proceed for ART procedure."

Addressing the Nanded Court's direction that the couple make an IVF appointment, Justice Ghuge further said,

"In my view, as the law stands today, there cannot be such a direction notwithstanding the submission (for the wife)... that the male sperms are not the exclusive property of a husband.”

The couple presently has a seven-year-old child, who is in the custody of his mother. Amidst the matrimonial conflict, the wife had moved the family court to conceive another child with her estranged husband, either through the restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, or in the alternative through IVF. Inter alia, the wife contended that her son may need the company and support of a sibling in the future.

The husband contested the plea, citing a traumatic experience. He submitted that he is not willing to produce a second child by adopting any procedure and he does not desire to visit an expert or gynecologist for a consultation. Before the High Court, he challenged the Family Court order as not being tenable in the eyes of law. He contended that the order should be rejected as it is against social norms. No spouse can be compelled to have sex, directly or indirectly, without free consent, he argued.

The Family Court order under challenge was passed by Judge Swati Chauhan of the Nanded Family Court. Upholding wife’s plea, Judge Chauhan had found, inter alia, that not allowing a fertile woman to procreate would be like compelling her to sterilize herself and curbing her reproductive rights.

The High Court, however, observed that there were serious flaws in the Family Court's reasoning, with Justice Ghuge even remarking,

"To say the least, I find such conclusions to be shocking to the judicial conscience of the Court."

In particular, the High Court took note of the Family Court's apparent disregard for the future of the possible second child. Justice Ghuge points out in his judgment,

"People seldom fathom the effect of stunted mental growth or the mental growth of a child suffering on account of such circumstances. A child mal grows to his or her full physical strength and appearance. But if the mental growth of the child suffers due to trauma on account of the circumstances that led to his birth, it would be something which is beyond perception and imagination."

In this backdrop, the Court proceeded to address the Family Court's note that the wife had undertaken not to claim any maintenance for the upbringing of the child from her husband if she is allowed to conceive a second child as sought for.

“I find that the trial Court has completely lost sight of the fact that the growth of a child is not money centric but is family centric. The growth of a child, both mental and physical, to make a child an able, capable and competent human being with normal predisposition and bereft of mood swings, could only occur in a congenial family structure.”

In view of these observations, the Court allowed the husband's plea, holding that,

"The possibility that the couple may come together is a matter of speculation and neither the couple nor the Court can be prophetic. This aspect will have to be left for time to decide since, time heals all wounds. If in the future, the couple reconciles and comes together as husband and wife, even Nature will not stand in their way to have a second child.

But, 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.”