if couple is childless after 5 years of marriage and the fault is with the woman, can the husband divorce her?
on what grounds.
Suchitra. S (Advocate) 24 September 2010
No, it is not a ground.
Adv Archana Deshmukh (Practicing Advocate) 24 September 2010
Infertility of a husband / wife is not a ground for divorce under any law in India.
begetting a child is a purpose to marry,but it's not the only purpose to marry..
one marries for companionship basically..there are childless couples who live happily 4ever,whether the prob. is wid the hubby or the wife..and they dont let their parents intervene in this matter
one day the child will grow up,marry and go away...and the two of u will keep waiting for him in return,rather than giving company to each other.
if u hv been fighting for the last 5 yrs. just over a child,it's immaturity....so better adopt one,give rest to the poor wife who must have got taunts like baanjh,etc a lot by now...
and please do the gud karma of giving parental love to an oprphan too.
Bhartiya No. 1 (Nationalist) 25 September 2010
If child is main issue and if u can afford then apart from adoption u may opt for In Vitro Fertilisation (IVF) i.e. Test Tube Baby or through artificial insemination or thru any other assisted parenting method, or surrogacy.
Medical science has developed, and may have answer to your problem, if u have tried them all then plz. excuse me or else u may seek suggestions/consultation.
plz dont waste ur time n money in these different conceiving methods.its as gud as litigation
go,adopt a child.thus u do a gud karma and the orphan gets a home and relief from these overcrowded orphanages of india where orphans are treated so badly.
and if childless couples like u start adopting kids,it will also help to stabilise india's population...
PS- Ultimately ur choice is all that matters..i m only suggestinng..maybe my suggestions open the eyes of some other childless person reading all this..
Tajobsindia (Senior Partner ) 25 September 2010
The keyword of your brief is "fault: based on which following PERCEPTION emerges;
Meaning of cruelty: [read it as Disclaimer] These are my perception which Prabhakar a lawyer here may call “philosophies” which I won’t mind. But my perception is how not a lawyer can project the “cruelty” of not able to give birth to a child in marriage is all about and it is doable as precedent, why not !
‘Cruelty‘ is one of the common grounds in all the personal laws on which a decree for judicial separation or divorce can be obtained. It is also a ground for separate residence and maintenance for the wife. It is a valid defense for defeating a claim for restitution of conjugal rights. ‘Cruelty’ under S. 498-A of Indian Penal Code is “Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or harassment of the woman, whether such harassment is with a view to coercing her or any person related to her, to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand”
The concept of cruelty is subjective, which is different from person to person, man to man, ld. judge to ld. judge and society to society and further from memebr to member. There are different acts which will amount to cruelty towards the husband or the wife.
Some acts which will amount to cruelty towards the husband by the wife are:-
* Humiliating the husband in the presence of family members and friends.
* Denying the husband access to physical relationships.
* Wife making scandalous allegations against the husband.
* Wife leaving husband’s home, leaving behind a child.
* Wife threatening to commit suicide.
* Quarrelsome wife beating the husband and thereby causing mental agony and cruelty
to her husband.
Some of the acts which amount to cruelty towards the wife by husband are:-
* Humiliating and ill-treating the wife.
* Turning the wife out from the house.
* Impotency of the husband.
* Having a love affair after marriage.
* Taunting her for not having any child or giving birth to female children/ child.
* Demanding dowry. To find out whether a particular act is cruel or not, one has to look
upon the effect which is caused by that act.
* Butter chicken
If the effect is that by a particular act harm has been caused to the body or mind of the other, the said act is an act of cruelty. Mental cruelty has to be considered in the light of the social status of parties, their education, physical and mental condition, customs, and traditions. Cruelty can be established easily if the conduct proved or admitted is bad enough and per se unlawful or illegal. To constitute cruelty the conduct explained of should be ‘grave and weighty’, where it can be concluded that the petitioner, spouse cannot be reasonably expected to something more serious than ‘ordinary wear and tear’ of life. It is true that the legal concept of cruelty creates confusion in the minds of ld. judges because of lack of definition of the term in any of the Special Acts therein. Therefore, it is important to put some criteria or standard of norms to consider a conduct as cruel and to provide the remedy for divorce on the basis of it. In order to find out the element of cruelty the Court should not only weigh the defendant’s conduct but at the same time must weigh it from the victim’s point of view. Physical pain caused, can amount to cruelty when it is of such nature that it would be injurious and harmful for the petitioner to live with his/her spouse.
Mental pain can amount to cruelty, when it is of such nature that no reasonable person of that class could tolerate. Any conduct which is ‘grave and weighty’ that would cause any type of pain on the complainant can amount to cruelty.
If the frequency of a trivial act is accelerated to several times it may constitute cruelty. [AIR 2006 (October) Journal 153]. Re.: P. B. Biksdhapathi Vs. State of
1. Within one month of the marriage the opposite party discloses her mind that she is not willing to live in a joint family.
2. During the visit of the husband’s brother the wife insulted him and misbehaved with him.
3. The wife had invited some friends of the husband for partition of the family property.
4. The wife after having altercations with the appellant forcibly left her husband’s shelter in spite of objections by the husband.
So gyani members decide yourself how and why by not having child in 5 years of marriage that also when the author says it is the fault of wife (may be some evidence of medical fault he has) can't bring relief under "cruelty' ?????
N.K.Assumi (Advocate) 26 September 2010
Infertility should not and can not be a ground of divotce under any concept of marriages. I agreed with the members.
Self service (None) 26 September 2010
Like some clarification- Infertility is not "cruelity" but what's about refusing to treat infertility once identified is cruelity?
Adv Archana Deshmukh (Practicing Advocate) 27 September 2010
Refusal to treatement cannot be straightway considered as cruelty. If a wife without any justification refuses to have a child, then it is definately cruelty to the husband. But if a wife is developing some adverse reactions symptoms because of treatement medicines or the treatement is not suiting her body and is having ill effect on her health, is it fair to classify it as cruelty if she refuses to submit herself for further experiments of 'treatements'? In my opinion NO.
Suchitra. S (Advocate) 27 September 2010
If at all, not being able to conceive be a ground for divorce for a wife, it should be a ground for a woman if her husband is not capable of being a father too.