Judgement Writing

Whether the Order violates the husband’s right to privacy and personal
autonomy under Article 21 of the Constitution?

Submitted by

Bhavya Singh

Division “E”

PRN: 18010223076

Class 2018-2023

Of

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), PUNE

In

August, 2019

Under the guidance of

Ms. Charvi Kumar

Assistant Professor
 C E R T IF IC AT E

The Project entitled “Whether the Order violates the husband’s right to
privacy and personal autonomy under Article 21 of the Constitution?”
submitted to the Symbiosis Law School, NOIDA for Legal Reasoning Skills as part
of Internal assessment is based on my original work carried out under the
guidance of Ms. Charvi Kumar from July 2019 to August 2019. The research
work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis has

been duly acknowledged.

I understand that I myself could be held responsible and accountable for

plagiarism, if any, detected later on.

Signature of the candidate:

Date: 25/09/2019
 Delhi High Court

(Before Bhavya Singh)

RAM …. Appellants
Versus

SITA …..Respondents

Civil Appeal Nos. 1 of 2019 Decided on September 22, 2019

(1) Ram and Sita are a married couple. The two have a minor child of 7-year-
old together. Ram filed a petition for divorce against Sita alleging cruelty
by her. While the petition was pending, Sita filed another petition, this time
under section 9 of the Hindu Marriage Act 1955. She also filed a petition for
maintenance of herself and their minor child.
(2) Respondent’s counsel prayed for a 2nd child, directly or indirectly from the
estranged husband as her fertility and strength to bear and rear a child will
decline with age. Respondent also put forward the point that, the single
child needs support of a sibling and in case the 1st child migrates for career
options, leaving the single parent alone in agony there would be another
child present to look after her.

(3) The appellants counsel argued, no spouse can be compelled directly or

indirectly without free consent for restitution of conjugal rights.
(4) The Appellant (Husband) has preferred this Appeal as against the impugned
order dated 30/08/2019. The family court in Patiala House held that the
plea of petitioner wife to restore conjugal rights in order to have another
child from the respondent cannot be considered when matrimonial petitions
are pending in other courts. The court held that under no circumstances can
it force any spouse to consummate their marriage. It then considered the
option put forth by the wife to have a second child through In-vitro fertilisation
(IVF). It also observed that this method of conjugal union for procreation is
becoming obsolete.

(5) It was also held that the consent of the husband is most essential for the
same. He can refuse consent, but such refusal without sufficient cause could
entail legal consequences including action for cruelty. “Respondent may
 refuse for ART by not giving his consent. But, by unreasonable refusal, he
may expose himself to the legal and logical consequences which may
follow.”

(6) The court can only acknowledge and adjudicate to the extent that the
petitioner has the right to reproduce and that she is entitled to exercise it,
the order reads. Hence, in furtherance of the said right, the court directed
the husband to donate his sperms and the couple must head for
consultation with a marriage counsellor and fix a meeting with an IVF expert
within a month for procreation of another child.
(7) The court further rejected the claim of maintenance of the wife, while
allowing the claim for maintenance of the minor son at Rs 12,000 per
month.
(8) Whether the Order of the family court in Patiala House violates the
husband’s right to privacy and personal autonomy under Article 21 of the
Constitution is the core question involved in this appeal.
(9) The present petition brings forward Article 21 of The Constitution of India
which read as; “No person shall be deprived of his life or personal liberty
except according to procedure established by law”.
(10) In the case of KS Puttuswamy V Union of India, Justice DY Chandrachud
brings forward the importance of privacy and autonomy.

Chandrachud J analyses the concept of privacy as being founded on

autonomy and as an essential aspect of dignity; 1

Held:

“Dignity cannot exist without privacy. Both reside within the inalienable
values of life, liberty and freedom which the Constitution has recognised.
Privacy is the ultimate expression of the sanctity of the individual. It is a
constitutional value which straddles across the spectrum of fundamental
rights and protects for the individual a zone of choice and self-
determination.”

(11) The birth of a child is usually a private affair between a husband and his
wife. The decision to have a child takes a lot of analysis of different

1
2017 SCC OnLine SC 996
 perspective and angles such as socio-economic aspect, financial, emotional,
physical and mental aspect of the husband and the wife. The wife has
contended that she would take care of the maintenance of the proposed child
herself and that her son may need company and support of a sibling for
caring and sharing in the future. The wife already has a seven year to cater
to, the child being a seven-year-old already requires a lot of care and
attention for its growth the child being at a very nascent stage of his
childhood. There is a high probability that the growth of both the child may
get hamper because of the divided attention between the first child and the
new born. Furthermore, the resources will also get divided among the
children. As the new born will require a lot more attention that the seven-
year-old. The wife has also contended “If a single child of a single parent on
attaining adulthood migrates for career purpose, then the said parent will
have to lead an isolated life with no family.” The fact of having a second child
does not guarantee that if the first child migrates, the second child would
not. Moreover, the wife will have to live in the society as a divorcee and
always be under the radar for having a child with a different method. The
method of ART was initially brought in for people who cannot have child
because of some biological problem. And ART is not an alternative method
for conceiving a child when both the spouses are medical fit.
(12) “All are equal before the law and are entitled without any discrimination
to equal protection of the law”2. In Anil Kumar Malhotra case3 the Apex Court
held, consent of husband is not required for wife to give birth or terminate
pregnancy. Similar analogy should be applicable on the husband as per the
notions of equality and Art.14 and he is not to be compelled to make wife
conceive.
(13) Accordingly, the order passed by Patiala House family court dated
31.08.2019, is set aside, as the impugned judgement of the lower court
contradicts the basic notions of equality, dignity and privacy of an individual
and bestows arbitrary direction without considering the interests of appellant.

(14) The petition is allowed.

2
Article 7 of the Universal Declaration of Human Rights (UDHR)
3
Anil Kumar Malhotra vs Ajay Pasricha on 16 January, 2018, R.P.(C) No.2939/2017 in C.A. No.4704/2013