Legal Reasoning Skills

Judgement Writing

Submitted By

Prabhnoor Guliani

Division: E Roll no.: 18010223095 Class: 2018-23

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), PUNE

In

September, 2019

Under the guidance of

Ms. Charvi Kumar

 CERTIFICATE

The Project entitled “Judgement Writing” 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 October, 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 student

Date
INTRODUCTION

Mr. Ram and Ms. Sita are a married couple with a minor child together. The
husband files a petition of cruelty as per Section 498A of Indian Penal Code and the
wife in return files a petition on her husband under Section 9 of Hindu Marriage Act.

FACTS

Ms. Sita prays for the procreation of a second child but Mr. Ram does not wish to
have a second child. She prays either to restore conjugal rights for the procreation
of second child or impregnate her through IVF1 with her husband’s sperm. She also
demands for maintenance of their seven year old child and for herself as per
Section 125 of CrPC.

The lawyer of the petitioner argued that since Ms. Sita is 35 years old, her
biological clock was ticking and the strength to bear the child and the rates of
fertility decline rapidly as the age progresses. The respondent argued that one
cannot have conjugal relations whether directly or indirectly, without the full and
free consent.

ISSUES

Whether the ‘right to found a family’ and general provisions under CEDAW can be
interpreted to give the wife the right to have a second child with her unwilling
husband?

RULE OF LAW

1. Article 16 of Universal Declaration of Human Rights:

“Men and women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. ... The family is the natural
and fundamental group unit of society and is entitled to protection by society and
the State.”

Under this the right to form a family is a crucial element that requires a conscious
decision so it also extends to right to give births so it also extends to the rights to

1
Section 9 of Hindu Marriage Act, 1955
plan births and control one’s reproduction either through natural means or through
IVF2. It is also mandated by UDHR that motherhood and child are entitled to special
care. ICESCR Convention also obligates the State to take special measures for
protection of children without any discrimination. 3

2. Article 16 of Convention of Elimination of All Forms of Discrimination against

Women:

Article 16 prohibits "discrimination against women in all matters relating to

marriage and family relations." 

According to this article both men and women have the same right to enter into a
marriage, have the same rights and responsibilities during marriage and have the
equal right in case of dissolution. Similarly they also have the right to procreate
children with the consent of both the parties 4. Although it also states that the
woman also has her own individual right to procreate a child through the process of
IVF and it will not amount to adultery if she without consent also chooses another
man’s sperms5 6.

JUDGEMENT – RATIO DECIDENDI

The family court in Patiala cited various international laws and treaties and
judgements of the Indian courts. The court recognized the wife’s reproductive rights
which is also given in Article 16 of Convention of Elimination of All Forms of
Discrimination against Women, which allows women to make their own decisions
regarding sexual and reproductive decisions. However since men also have the
same right then their consent also matters regarding their willingness to
consummate and especially for the reason to procreate. The court referred to a US
Court judgement where it was held that the marriage and procreation are essential
to the very existence of the society and therefore the right to reproduce is a basic
human right7.
2
Aravia Murillo vs Costa Rica, 2012
3
Mini KT vs Senior Divisional Manager, 2008
4
 "Convention on the Elimination of All Forms of Discrimination against
Women". www.ohchr.org.
5
Section 497 IPC, 1860
6
Doombos vs Doombos, 1956
7
Skinner vs State of Oklahoma, 1942
The court had held that a woman has full right over her body and it is her decision
to procreate or not to procreate and unreasonable restrictions cannot be put on her.
Since the husband’s consent is also crucial, his word must also be taken into
account but it must have certain reason behind it otherwise he may have to face
legal actions on the grounds of cruelty8.

The wife has her right to bring a child into the world through IVF but she would
have to bear the clinical expenses on her own. Her petition for maintenance was
rejected but was given child care of Rs. 12000.

OBITER DICTA

The decision carried out by the court was a reasonable one where they protected
the right of the woman to make her own choice for her body regarding procreation
and the husband got the right to refuse conjugal relations. It is a very important for
both the parties to give full and free consent regarding such important decisions. If
we look at the provisions provided to us under CEDAW we can see that the
committee has made intensive efforts to make life for women easier by protecting
them from any kind of sexual violence and protecting their right to their own
reproductive health along with their right to life. So CEDAW has also given women
the right to procreate whenever they are ready and can have a child regardless of
their marital status, or the process of conception, or whether they are legitimate or
illegitimate. They have the right to provide them with proper facilities of good
quality without having to face any discrimination.

In this case if Ms. Sita wants to have a child through IVF even when her husband is
unwilling then she has the full right to do it because it is her bodily right and the
state shall do everything it can so that neither the mother nor the child faces any
kind of discrimination of any sort.

8
Section 13, Hindu Marriage Act, 1955