MUMBAI: In a rare plea before a family court, a 35-year-old woman caught in a divorce battle sought a second child with her estranged husband. She pleaded for conception through restoration of conjugal relations or in-vitro fertilisation before her biological clock times out.

In an order this week, the court cited international laws and treaties on personal autonomy and reproductive health to back her “reproductive rights” as being the “basic civil rights of a human being”. The court directed the couple to head for consultation with a marriage counsellor on June 24 and fix a meeting with an IVF expert within a month.

The husband opposed the plea as being illegal, an illusion and against social norms. But holding her request for her husband to donate his sperms for artificial insemination as a “legitimate, eugenic choice of hers” the court directed the couple to an assisted reproductive technology (ART) expert. The husband’s consent for ART is crucial.

Court backs woman’s plea, sends couple to ART expert

The estranged couple has been asked to go for “clinical consultation about the prospect and success of the (ART) procedure in their case”. The doctor has to submit a confidential report to the court later.

“A key aspect of personal autonomy are reproductive rights, which entail rights to make sexual and reproductive decisions,” the United Nations International Conference on Population and Development had said in its steering 1984 document that first defined the term reproductive health. Family Court Judge Swati Chauhan in Nanded invoked its salutary value in the woman’s case.

The judge observed the issue of reproductive rights is “emotionally debatable and gender intricate” and can generate legal and social complications and consequences. The court, though, added it can only hold that the woman has a right to reproduce and is entitled to exercise it but acknowledged that law has limitations. The husband’s consent for ART is crucial.

The couple, both professionals, have a minor child. The husband, who is based in Mumbai, had filed for divorce alleging cruelty by her in 2017 and she approached a court in Nanded for restitution. But while both petitions were pending, she also approached the Nanded family court in 2018 with an application to have another child with him. Her plea, said her lawyer Shivraj Patil, is that since she is 35, her fertile years are limited and she wants a second child to be a sibling to her first and support her in her old age.

The husband opposed her plea questioning its permissibility, legality and her intentions. He refused to have any more children with her, even through ART. “No spouse can be compelled to have conjugal relations directly or indirectly, without free consent,” his lawyer argued.

The woman cannot be faulted for her request, said the court. The husband’s consent is crucial though. The court observed that since both petitions are pending, her plea to have a second child through restoration of conjugal rights cannot be considered. Also, in any case, the judge observed, no court can ever enforce or compel any person to execute an order of restitution.

The judge, though, clarified that in this case “seeking ART procedure is neither in breach of any law nor is it violating any social written or unwritten norms. Moreover, the petitioner is ready to incur the full responsibility of the proposed child”.

Her assertion to raise the child doesn’t curtail its right to claim maintenance, said the court holding that thus the woman’s declaration is not against public policy. The order said, “The respondent may refuse ART by not giving his consent. But by unreasonable refusal he may expose himself to the legal and logical consequences which may follow.”

“Reproductive right is closely and directly related to women. But, in the patriarchal society in India, the majority of women lack the decision-making power,” the court observed.

The husband has to give monthly maintenance for their child who lives with her but the court had rejected her maintenance plea since she earns.

Judge Chauhan, in her order, said within its limited powers, the court can only hold that “she has a right to reproduce and that she is entitled to exercise it.” The judge also said, “Not allowing a fertile woman to procreate is like compelling her to sterilize. To curb or to curtail reproductive right may have a subtle and devastating demographic outcome.’’ The wife undertook to withdraw a criminal case of cruelty she has filed against her husband if he agrees to ART.