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vijai Rajesh Kalyana sundaram (Legal officer)     14 November 2010

is that consent of husband for family planning is mandatory?

whether the husband consent for family planning is mandatory one?

she gave birth to her child last day now she planned for family planning but thhe hospital management need the consent of her husband who was not with her presently-

give me a sugession-


 29 Replies

Suchitra. S (Advocate)     14 November 2010

Sir, pl go through this link :


As opined there, it will be a ground for divorce coz it amounts to mental cruelty.

Jamai Of Law (propra)     14 November 2010

Ha ha ha haa!!!


There was yet another post also on LCI similar to this



I was also reading the india's population growth related charter somewhere



Family planning related activity is definitely not a mental cruelty...absolutely it is different than refusal to progeny.



I repeat it's NOT a cruelty!!!! Even SC directives are not meant in that line.



Unilateral and complete Refusal to progeny by a spouse is a mental cruelty towards other spouse!! ('not even a single kid' strategy and unilateral decision by one spouse is constraining to other spouse who wants a legitimate heir and inherent desire of every living specie to further their genes by regenerating a "onself-like-personality"!! )



But humans think it holistically from the perspective of of nurturing, enabling, provisioning the further generations vis a vis the means that they have to feed them etc.



Terminal/Permanent methods without 'any single child' are strong indicators to refuse the other spouse's wish!!! ......................But otherwise it is not a cruelty!!! (there was a case in SC that (both spouses as divorcee) wife didn't allow her second husband's wish to have a kid out of their second wedlock because she already had a kid from her first marriage, and that kid's custody was with her. Hence husband alleged that he was deprived!!! ) ..............But after one kid out of a marriage, a spouse may not be able to force the other spouse to have more and more kids. Its a mutual decisionwhether to have more than one/two kids!!!


Otherwise a man would go to court saying that wife's doesn't allow him to have fifth......seventh....19th kid ....It's a mental cruelty....


A woman's womb is not a mould for baby making!!!


There is a wear and tear of body. Wife has right to say 'no' any more kids after first kid. She can claim to have taken case of side effects due to other methods and taken recourse to a permanent method. There is nothing wrong.



Same scenario with wives!!! Otherwise....even normal use of  Con**ms would become a mental cruelty towards wife!!!!

adv. rajeev ( rajoo ) (practicing advocate)     14 November 2010

Yes if both  agreed then it will be gift to the nation to curtail the population growth.

Renuka Gupta ( Gender Researcher )     14 November 2010

It's not a cruelty. Women have all the right to go in for tubectomy( Family planning)  in the face of resistance by husband. As Jamai of law has said complete refusal to conceive may be one of the grounds of cruelty but certainly not going in for tubectomy after that. However, I am not an advocate and it would be interesting to know when  there is a conflict  between women's human rights and patriarchal norms,  where woman is considered to be a baby producing machine, irrespective of whether she wants another child or not., who does our law support or rather how an advocate frames her/his arguments. 

Suchitra. S (Advocate)     14 November 2010

When hearing an appeal in the Ghosh vs Ghosh divorce case, the court ruled on March 26, 2007: “If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy (read tubectomy) or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.” 

Arvind Singh Chauhan (advocate)     14 November 2010

Learned members here his question is "whether the husband consent for family planning is mandatory or not?"

he is not asking " Family planning without husband's cosent is a ground for divorce or not?"

Please clear the legal position- whether hospital authrities can do so without the consent of his or her better half.?

Suchitra. S (Advocate)     14 November 2010

The Government of India has issued guidelines for sterilisation procedures in India. Sterilisation services are provided free of charge in government institutions. Guidelines have been issued from time to time by the government covering various aspects of sterilisation. These are: a) The age of the husband should not ordinarily be less than 25 years nor should it be over 50 years. b) The age of the wife should not be less than 20 years or more than 45 years. c) The motivated couple must have two living children at the time of operation. d) If the couple has three or more living children, the lower limit of age of husband or wife may be relaxed at the discretion of the operating surgeon. e) It is sufficient if the acceptor declares having obtained the consent of his / her spouse to undergo sterilisation operation without outside pressure, inducement or coercion, and that he /she knows that for all practical purposes, the operation is irreversible and also that the spouse has not been sterilised earlier.

Jamai Of Law (propra)     15 November 2010

The last line in the guidelines e) It is sufficient if the acceptor declares having obtained the consent of his / her spouse to sufficient to prove that guidelines are not restrictive but more as directive.

Actually the Govt's guidelines have more focus on 'surgical precautions and negligence, failures, compensations, methods, awareness'  etc and the guidelines are absolutely not meant for judicial purpose!!!!



Government of India doesn't/can't compel any female to bear atleast/exactly/ two kids after marriage, whether alive or dead at any point of time!!!



 I believe, kohli vs kohli and ghosh vs ghosh cases are become routine reference as a citation and these two couples have created 'model caselaw' and both couples didn't leave any stones unturned while fighting against each other to give a concrete caselaw to whole Indian society!!!


Had they not gone upto SC, many States would have been deprived of its valued reference as a caselaw!!!! I really respect them for their valued service to the whole nations!!!!


The case of Smar Ghosh Vs Jaya Ghosh (two IAS officers and marriage of 22 years, dispute right from beginning) is the rarest of the rare case. The appellant and the respondent had been living separately for more than sixteen and half years (since 27.8.1990).


The respondent's first husband, Debashish Gupta filed a belated appeal against the decree of divorce obtained by her from the District Court of Patna. Therefore, during the pendency of the appeal, she literally persuaded the appellant to agree to the marriage immediately so that the appeal of Debashish Gupta may become infructuous. ..............................soon after the marriage, the respondent asked the appellant not to interfere with her career. She had also unilaterally declared her decision not to give birth to a child for two years and the appellant should not be inquisitive about her child and he should try to keep himself aloof from her as far as possible. According to the appellant, there was imposition of rationing in emotions in the arena of love, affection, future planning and normal human relations though he tried hard to reconcile himself to the situation created by the respondent.



It's worth to take notice of many other aspects where 'mental cruelty' is talked about which is yet not explored by many aggrieved litigants and there is not much of case citations except above (metal abuse is more prevalent in society than physical to say)



SC has tried to be uniform !!!...... by way of declaring that ............... .....No uniform standard can ever be laid down for guidance   ....In deciding about metal cruelty!!!


Before making whole list of illustrations the SC has quoted following lines in the judgement:

No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

  • On consideration of complete matrimonial life of the parties........
  • On comprehensive appraisal of the entire matrimonial life of the parties.......
  •  A sustained course of abusive and humiliating treatment .........
  • The married life should be reviewed as a whole .........


 Etc etc....


Avnish Kaur (Consultant)     15 November 2010

progeny and procreation legally is the basic purpose of marriage . govt guidelines are regading taking consent of patient at time of operation.

see there is a difference between a doctor taking patients consent and

wife taking husbands' consent for sterilisation.

do not try to mix the two

if a doctor takes a lady's consent for operation , doctor can procced with surgery on patient.

if a wife gets sterilisation or MTP done without husbands' consent it is mental cruelty and there are innumerable citations. feminists have their voice, they are of course not expected to be talking about law. APNI DHAPLI APNA RAAG......

see marriage from perspective of a couple, this is definite mental cruelty and wife also doctor shud try to have husband and wife both signing consent form.

however doctor is not doing anything illegal if patient is operated with only lady giving the consent.

1 Like

Renuka Gupta ( Gender Researcher )     15 November 2010

Two children? When couples in urban areas are increasingly opting for one child for various reasons. Feminist look deeper into the issues and not just legal aspect. Most progressive laws are the results of women's movement. If husband wants second child and wife does not want, who is inflicting cruelty on whom? 

Marriage is not just for procreation, it is one of the most important aspects though.. Had it been so infertility should have been a ground for divorce!

By the way, tubectomy can be reversed, it is called reversal surgery or recanalisation. women had gone in for it post Kumbkonam fire tragedy and later post tsunami. However, most if not all,  did it due to pressure from in laws and husbands, but  for quite a few of them  , it was like a boon!

Avnish Kaur (Consultant)     15 November 2010

is tubectomy fully reversible? does  microsurgical tubal re-anastomosis have 100% success rates?poor success rates with very high risks of abnormal /ectopic pregnancy (a life threatening complication on female) you shud not get these surgeries done without consent of partner as both partners have a role in planning the family.

manjit kalra (system eng)     15 November 2010

feminists talk only about rights , but rights nowhere come without duties. then they will start using words like child producing machine etc. etc.

Jamai Of Law (propra)     15 November 2010

There is difference between preventive measures and corrective measures....................


There was a case....................... where a woman went for MTP twice for her higher studies (MTP is like killing a foetus which has already started heart beats) this was a one of the extreme ways of corrective measures and its pattern................. and liable to raise suspision and corroborative..


Vasectomy/Sterelisation is a preventive/delaying mechanism.....


Has it not been possible to reverse it so far?    Only Yee/No answer......the answer is yes!!!

Since there is atleast one case (medically) where it has been reversed...Then it can't be called a permanant deprivation of other spouse's wish!!!!


Let's spare women from these kinds of divorce suits!!!!



Whenever a couple decides to have preventive measures (or in poor areas people are even enticed for meagre payments to get it done!!) Often Men compel women to undergo these things!!!!

A very convincing statistics available on this

Men don't easily volunteer themselves and instead put their wives life at risk!!! Even tough it is wellknown that womans surgery is risky, dangerous and complicated as comprared to man's And man's surgery is more easily reversible and has more success rate of reversal (in USA. I was reading an article on that)



It would be really brutal if women start facing divorce suits on such a new addition to the definition of mental crualty!!!! 


Just because it's really been difficult for a man to 'win divorce' against wife on other available grounds practically!!!  It's shocking that some people may be contemplating to make use of such a thing to get rid of wife easily.


Unfortunately It's evolving as a new forceful ground (it's easy to mislead by referring to SC judgement above) for divorce... which is really nasty.  This is a very Very bad sign.


SC should draft judgements with due care and narrating the whole context. When I read about SC's other  guidelines related to 'Metal Cruelty', gave a feeling like.......


IrBM is already been incorporated as a subset of 'Mental Cruelty', and as if its become a cakewalk to prove Mental Cruelty!!




1 Like

Jamai Of Law (propra)     15 November 2010

In short................................. I was saying that...based on rarest of rare cases....SC  shouldn't have made generalised statements just to convert rare cases into a normal grounds!!!


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