Law Web: Is a prenuptial agreement between husband and wife not to have a child after marriage a valid contract?

Under the Hindu religion, the marriage had assumed the

sacred character of sacrament. The personal thought of marriage

was a prime necessity for that alone could enable a person to

discharge properly his religious and secular obligation. To make it

say it otherwise, the marriage is necessarily a basis of social

organisation and the foundation of important legal rights and

obligation. The importance and imperative character of the

institution of marriage needs no comment and in Hindu Law

marriage is a Sanskar. Therefore, presumed contract as has

been stated by the appellant/husband that the second marriage

was performed on the condition that they would not have a child

from the second marriage cannot be a barrier as a valid sacred

promise, if not performed, will assume the character of cruelty.

Under the Hindu law, marriage is not a contract. Therefore, the

alleged promise as projected by the husband that they would not

have a child from the second marriage cannot be given a priority

over the sacrament or sanskar to have family. The alleged

promise also cannot be pressed into motion against the human

conduct if a lady after the marriage expects to have her own child. The role narrated by husband of contract of not to have child even after marriage is bound to be somnolent. A birth die is cast by nature. To deprive a woman from motherhood as a pre-condition for marriage cannot be given a priority. The type of condition set forth by husband only adds gloomy atmosphere to a married life as against a cheer by a child. Therefore, a demand to have child by wife from husband cannot be constituted a cruelty. {Para 11}

HIGH COURT OF CHHATTISGARH, BILASPUR

First Appeal (M) No. 138 of 2018

P. Venkat Rao P. Ramarao, Vs Smt. P. Padmavati P. Venkat Rao,

Coram:

Hon'ble Justice Shri Goutam Bhaduri

Hon'ble Justice Shri N.K. Chandravanshi

Author: Goutam Bhaduri, J

Dated: 09.3.2023

1. Heard.

2. The present appeal is by the husband against the dismissal

of a petition seeking divorce under Section 13(1)(i-a) of the Hindu

Marriage Act, 1955. The dismissal order was passed in Civil Suit

No.98A/2015 by Third Additional Principal Judge, Family Court,

Durg on 07.5.2018.

3. The brief facts in this case are that the appellant was earlier

married and got divorced from his first wife in the month of July

2010. From the first marriage a son was born, who was aged

about 10 years at time of second marriage. The husband stated

that to secure future prospect and to provide parenthood to the

son, the husband again married with respondent P. Padmavati on

06.3.2011 at Arya Samaj, Bhilai. The husband stated that before

the second marriage, past was disclosed to the second wife

including about the son. It is further pleaded that before the

second marriage he went through vasectomy (Nasbandhi) as he

did not want any further child in future. The respondent/wife also

acceded to such arrangement to accept son from the first wife to

be their only son. The husband further alleged that after two

years of marriage, things went normally but subsequent to it, the

wife expressed her desire to have a child. Being objected by

husband, the son was subjected to torture and pressure was

exerted on the husband to have a child of their own. In

furtherance of such object, by way of IVF (In Vitro Fertilization)

the wife got pregnant from the eggs and sperms of outside

donors. The husband alleges that he wanted to donate his sperm,

but instead of taking the sperms of the husband, the wife got

pregnant from sperms of unknown donor. After she got pregnant

she underwent the treatment for removal of extra embryo in her

womb and eventually twin daughters were born on 23.9.2014.

Subsequent to it, atmosphere at home became totally hostile and

the wife in front of the friends used to make sarcastic comments

on the husband that he is not capable to give birth to child. The

husband further alleged that the wife used to abuse and extend

the threat that the husband would be inculpated in some false

case, therefore, under these circumstances, the husband kept

silence and eventually they started living in the same house but

separately with different kitchen, having different source of

access. The husband stated that because of the abuse and

mental cruelty meted out to the husband by the wife, as she got

pregnant by sperm of outside donor, he is entitled to divorce as

they cannot go along further.

4. Per contra, the wife alleges that when the proposal for

marriage was considered because of the fact that the husband

had gone through vasectomy, her family members initially refused

to marry him, but husband promised that after the marriage he will

get himself operated to have a child and on such assurance &

promise, the marriage was performed. Non-applicant/wife further

alleged that she was in service and was a working lady but after

the marriage, as per the wish of the husband, she left her job.

The wife further stated that she has no degree of discomfort with

the son named Mukul and with the consent of the husband she

got pregnant through IVF procedure. It was further stated that

after she got pregnant, three embryos were found in the womb,

as such, with the consent of the husband, she again got operated

to remove one embryo. The allegation of use of abusive

language and sarcastic comment against the husband were

denied and stated that the husband is not entitled for any divorce

on the ground stated in the application.

5. The husband examined himself and one witness SRB

Krishna (PW-2) and the wife examined herself alone. The

learned Family Court dismissed the application for divorce holding

that neither cruelty has been proved nor it has been proved that

the husband promised the wife to begot a child after the marriage

and the application was dismissed.

6. Learned counsel for the appellant/husband would submit

that the husband being a divorcee, the marriage was performed

on the condition and promise that from the second marriage they

would not have a child. But subsequently, the wife started

creating pressure and resorted to cruelty with the son from the

earlier marriage. He would submit that under those

circumstances, the husband succumbed to the pressure and

agreed for a child through IVF procedure and went to the IVF

Clinic, but despite the fact he underwent biopsy to confirm that he

has normal sperm count but the wife got pregnant from outside

ovum donor and sperm donor and the embryo was implanted. He

would further submit that the husband consented for the

pregnancy of the test tube baby with the donation of his own

sperm, but the wife created undue pressure & without information

to the husband got herself pregnant by sperm of outside donor.

Learned counsel for the appellant further would submit that the

documents so filed by the wife would show that on the date of the

IVF treatment, the husband was at his duty which goes to show

that signature of the husband was obtained on the blank paper by

creating undue pressure by the wife. He would submit the entire

conduct of wife to get pregnant by sperm of outside donor despite

the husband was capable to give sperm, amounts to mental

cruelty and apart from the fact, the statement of the husband

would show that child from the first marriage was subjected to

immense cruelty and torture. Consequently for abusive behaviour

and mental cruelty, the husband is entitled for a decree of divorce.

7. Per contra, learned counsel for the respondent/wife would

submit that the document of IVF treatment would go to show that

the husband was the consenting party to such pregnancy from

sperms of outside donor. He would submit that on the earlier

occasion while treatment was going on, no complaint was made

either before any of the authorities or before any of the members

of the family that such undue pressure was created by the wife,

but on the contrary, evidence would show that he repeatedly

visited the hospital for a number of times. Therefore, theory of

threatening is automatically nullified. He would further submit that

earlier the wife was working and after the marriage, she left her

job and she was completely dependent upon the income of the

husband. It is stated that the IVF treatment for pregnancy involves

quantifiable amount which was paid by the husband which would

show that husband was the consenting party to the entire

procedure. Referring to the documents filed by the husband in

the proceeding under Section 125 CrPC which is placed before

this Court, learned counsel would submit that the documents

would lead to show that he has consented to the entire treatment

procedures. So far as the cruelty to the son as has been alleged,

has not been proved by any evidence as the son was not

examined before the Court. After reading the statement of the

husband and the wife, it is submitted that in the circumstances,

finding of the Court is well merited which does not call for any

interference by this appellate Court.

8. We have heard the learned counsel for the parties and

perused the documents.

9. Before this Court certain documents have been filed which

relates to IVF treatment. The husband in the submission has

admitted those documents, which were filed by him in the

proceedings under Section 125 CrPC by the wife. The

authenticity of the documents are not disputed by the husband

and are admitted but the stand is taken that signature on said

consent letter during treatment was obtained by undue pressure.

We would like to deliberate on this issue of undue pressure

subsequently. For the reasons that the admission of the

documents would be necessary for adjudication of the real issue

between the parties, consequently they are admitted in evidence

and marked as Ex-D/7.

10. According to the averments of the parties, for both the

appellant and the respondent, it was their second marriage.

Before March 2011 both the parties were divorcees and the

appellant had a son from earlier marriage. According to the

husband, second marriage was performed with a condition that

the husband had undergone vasectomy and they would not have

a further child from the second marriage. The wife in her written

statement has denied the same.

11. Under the Hindu religion, the marriage had assumed the