Refusal to have children is a ground for divorce

Barathkumar K M | Sastra Deemed to be University Thanjavur | 18th June 2020

Samar Ghosh Vs Jaya Ghosh

Facts:

The appellant and respondent both are IAS officers. They got married on 13.12.1984 at Kolkata under the Special Marriage Act. The respondent was a divorcee and had a female from her first husband, Debashish Gupta, who was also an IAS officer. After the marriage, the respondent told the appellant not to interfere with her career. She refused to have a child for two years and the appellant should not be inquisitive about her child and the appellant should keep himself aloof from her as much as possible. In 1985, the appellant suffered from prolonged illness but the respondent left him and went to Bareilly to meet her parents. The appellant felt like a stranger in his own family. The respondent taught her daughter that the appellant was not her father and the child began to avoid the appellant. The appellant and the respondent have been living separately since 1990. The appellant approaches the Additional District Court to grant the divorce for mental cruelty and the Additional District Court granted the divorce. The respondent appealed the decree to the Kolkata High Court and the High Court quashed the order of the Additional District Court and held that refusal to have a child doesn’t lead to mental cruelty. Thus, the appellant approaches the Supreme Court to grant the divorce.

Issue:

Whether refusal to have a child amounts to mental cruelty?

It was observed that the respondent married the appellant was merely an eye-wash because immediately after the marriage, many matrimonial problems developed between them. When one spouse was suffering from illness, it was the duty of another to take care. The respondent avoided the appellant only because of the lack of love and affection. The refusal to have a child by one spouse will definitely lead to mental cruelty to the other spouse.  

Judgment:

The Hon’ble Supreme Court held that refusal to have/bear a child by one spouse without the consent of the other spouse will amount to mental cruelty. The one spouse must take care of another but here it was observed that the respondent avoided the appellant. The Hon’ble Supreme Court quashed the order of the Kolkata High Court and granted divorce to the appellant.