Ashok Khanna (name changed), a Calcutta-based businessman, had married the woman of his choice — a schoolteacher in a reputed English medium school. But even after more than 10 years of marriage, the couple did not have a child.

Medical investigations revealed that Khanna’s wife had a cystic mass in her ovaries that made her unable to bear a child. Adoption was an avenue Khanna was not interested in as he wanted to have his own offspring. The marriage started developing cracks and finally resulted in a legal separation. Khanna has remarried and is now a proud father of two children — a boy and a girl.

However, life might not have been this easy for Khanna had his wife decided not to grant him a divorce. That’s what Samir Adhikary found out when the Calcutta High Court recently held that no husband was entitled to a divorce on account of his wife’s infertility. Rejecting Adhikary’s appeal, the two-judge Bench ruled, “A marriage is consummated when completed by sexual intercourse. If the sexual intercourse is complete, it is immaterial whether a child is born or not. It was the admitted case of the husband that his wife had no deficiency in having sex.”

Justices Bhaskar Bhattacharya and Prasenjit Mondal added, “The legislature has not prescribed infertility of a spouse as a ground for annulling the marriage if such spouse is capable of being a party to normal sex.”

Says Calcutta High Court lawyer Protik Prokash Banerji, “The law does not recognise infertility as a ground for divorce. However, if a man can prove in a court of law that at the time of marriage the woman had concealed the fact that she was unable to bear children, he would be granted a divorce on the basis of suppression of facts.”

Section 12(1) of the Hindu Marriage Act, 1955, states that any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled on the ground that “the marriage has not been consummated owing to the impotence of the respondent.” Clearly, while our lawmakers have allowed a marriage to be annulled if there is non-consummation, they have drawn the line at setting out a similar decree in case one or the other spouse is infertile.

Says Kirti Singh, advocate and legal convener of the All India Democratic Women’s Association (AIDWA), “Sex is the basic foundation of a marriage. If a man or a woman is incapable of participating in normal sexual activity, he/she is depriving his/her spouse of one of the primary rights of marriage. Infertility, on the other hand, is an unfortunate situation and is not a person’s fault. A woman cannot be divorced just because she is infertile. There are alternative methods of procreation as well as adoption available to the couple.”

However, if either of the parties to a marriage is incurably unable to consummate the marriage, it may be declared void by a decree in a suit of nullity of marriage. Says Banerji, “All that is necessary is that it must be proven that due to impotence of the respondent, the marriage could not be consummated, meaning thereby, that there was no complete sexual intercourse between the parties due to incapability of either the husband or the wife.”

The Hindu Marriage Act says that even a wife can be impotent if she is unable to be a party to normal coitus. As pointed out by the Supreme Court in the case of Yuvraj Digvijay Singh vs Yuvrani Pratap Kumari in 1969, a party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility.

“In the Adhikary case since the husband admitted that there was normal sexual intercourse between the parties, the marriage was held to have been duly consummated and thus, the case did come within the purview of Section 12(1) of the Hindu Marriage Act,” says Joy Sengupta, advocate, Calcutta High Court.

Of course, it may be argued that infertility of one spouse can be as much a source of trauma for the other as it is in the case of impotence. So should the law change? Not at all, argue experts. Says Paromita Mitra Bhaumik, a Calcutta-based clinical psychologist, “This is a highly nuanced human rights issue. Time was when procreation used to be the sole aim and purpose of a marriage. But now times have changed and companionship is the basic ingredient of a marriage. Hence, a marriage cannot be terminated simply on the grounds of infertility.”

In most other countries, including the US and the UK, infertility is never a ground for divorce. The exception was Nepal, where even a few years ago, a man could divorce his wife on grounds of infertility. But in 2006, Nepal’s Supreme Court ruled that the provision in the country’s 1963 Civil Code which gave men the right to divorce their wife on grounds of infertility was unconstitutional.

In India, it is only under the Muslim Personal Law that infertility can be held to be a ground for divorce. Says Amjad Ali Sarda, an advocate at the Calcutta High Court, “In Muslim Personal Law, a wife’s barrenness is a major ground for divorce if a husband wishes it to be so. It can also be a very strong ground for a second marriage (a Muslim man always has to take the permission of his wife in case he wishes to marry again).”

Sarda adds that in any case, under Muslim Personal Law a husband has the unfettered right to divorce his wife if he wishes to do so. However, Islam also allows a woman to divorce her husband if male infertility can be proven, he adds.

But as Adhikary found out to his dismay, in all other cases, infertility cannot be held to be a ground for divorce.

Illustration: Suman Choudhury