In a recent judgement, the Madras High Court ruled that under Section 13(1)(ia) of the Hindu Marriage Act, 1955, the inability of the wife to have a child cannot, by itself, be converted into a matrimonial fault of the wife and thus assume mental cruelty on the husband. The Madras High Court said that a marriage cannot be reduced to the sole object of procreation. A spouse cannot be treated as having failed in the matrimonial relationship merely because the parties did not have a child.
Before the Madras High Court, the wife admitted that there was no child born during the subsistence of their marriage and that she had undergone surgery in Chennai for an 8 cm fibroid growth in her uterus.
She specifically contended before the Madras High Court that she had undergone treatment in the hope of establishing a normal matrimonial life and that the absence of a child was not attributable to any wilful refusal on her part to lead matrimonial life with the husband.
The Madras High Court observed that when a treatment cycle fails, the emotional consequence cannot be understood merely as the failure of a medical procedure. The Madras High Court said that for a woman who has undergone such treatment in the hope of establishing a family, the failure may involve grief, disappointment, self-blame, anxiety and a sense of betrayal by her own body.
The Madras High Court also said that such a failed treatment may add to distress, particularly when she is repeatedly questioned regarding pregnancy or subjected to comparisons with other women who have conceived.
Her husband's counter was that they have married on June 18, 2007, at Anand Mahal, Theni, and that, to date, they have no child. Moreover, since the time a fight between them took place in 2016, they have not been together also, so, as per him, the marriage is dead, and he is suffering from mental cruelty due to her actions, and thus he needs a divorce.
According to him, on June 4, 2016, she abused him in public, called him an impotent person, assaulted him with her slipper and caused injuries to his face. He further alleged that after returning home, she abused him in filthy language, assaulted him with a broom and stated that she did not want to continue living with him.
On the contrary, she alleged that he was in the habit of consuming alcohol and returning home in a drunken condition and that her objection was only on account of his drinking habit and the danger involved in his riding a two-wheeler after consuming alcohol. She therefore contended that the allegations made against her were false, unsubstantiated and had been put forward only for the purpose of obtaining a decree of divorce.
The husband’s lawyer argued that matrimonial cruelty ordinarily occurs within the four walls of the matrimonial home and cannot invariably be expected to be proved through independent eyewitnesses or police complaints.
On September 30, 2026, he lost the case in the Madras High Court and thus did not get a divorce.
Why did the husband lose the divorce case in the Madras High Court?
Advocate Amitraj Kaushal practicing in the Supreme Court of India, said to ET Wealth Online: The husband failed this divorce case in Madras High Court as he could not prove how he suffered “cruelty” under Section 13(1)(ia) of the Hindu Marriage Act, 1955. However, the wife could manage to prove it that her intention was to save the marriage and hence she underwent the painful treatment to get a child.
Thus the Madras High Court held that the mere fact that the couple did not have a child cannot be converted into a matrimonial fault of the wife. Importantly, the Madras High Court observed that she wanted to save the marriage thus she had undergone fertility treatment and continued to express willingness to resume matrimonial life, which indicated her intention to preserve, rather than abandon, their marriage.
What legal steps can a husband or wife take for divorce on childlessness ground?
Kaushal says that a spouse cannot simply plead childlessness as cruelty and expect a divorce. To get a divorce the spouse must identify and prove specific matrimonial conduct falling within a statutory ground, particularly Section 13(1)(ia), rather than treating the absence of a child itself as misconduct. In this regard, the burden of proving cruelty due to lack of a child remains on the spouse alleging it, and allegations must be supported by credible evidence.
According to Kaushal in such cases the appropriate approach is to place both factual and medical evidence before the Family Court and if it is possible medical records, treatment history, communications and other evidence concerning the other parties’ conduct.
Kaushal says that once the medical and factual evidence about lack of a child is placed before the family court, the court will assess the cumulative matrimonial circumstances, not merely the fact that the couple remained childless.
This is where this present Madras High Court judgement becomes significant as here in this case the wife had undergone fertility treatment and remained willing to reunite and this suggested that she tried to save the marriage and had undergone a lot of pain (due to treatments) to get a child but failed.
Kaushal says: "Thus, courts distinguish genuine matrimonial cruelty from infertility, unsuccessful treatment, or reproductive difficulties that are beyond either spouse’s control."
Madras High Court discussion
If he is being called impotent, then the court needs to examine this, but he failed to prove it
The allegation that the wife repeatedly called the husband an impotent person is a serious allegation.
The Madras High Court said that when such an allegation is specifically denied by the wife, the court is required to examine whether there was any reliable proof of that. In the present case, the Family Court found no satisfactory corroboration. Significantly, even the father of the husband had not spoken in his deposition about such an incident. Therefore the Madras High Court found no reason to interfere with the finding.
Wife subjected herself to medical treatment with the hope of conceiving
The Madras High Court said that the evidence on record indicates that the parties remained childless during their matrimonial relationship and that the wife had a medical condition for which she underwent treatment and surgery. The wife did not remain passive in relation to the issue of childbearing. On the contrary, she subjected herself to medical treatment with the hope of conceiving and thereby establishing a normal family life with the husband.
In this context, Justice GR Swaminathan and Justice MD Sumathi of the Madras High Court said that they cannot mislay the sight of the physical and emotional burden involved in fertility treatment.
The Madras High Court observed that an assisted reproductive treatment is not merely a medical appointment or an isolated procedure as this treatment involves repeated hormonal injections, repeated monitoring through scans and blood tests, invasive procedures for retrieval of eggs, medication following the procedure and, where required, embryo transfer and continued hormonal support.
The Madras High Court explained that the physical burden is accompanied by considerable emotional strain. During the course of such treatment, the woman is required to live through repeated cycles of hope and apprehension.
The Madras High Court thus ruled that legally, the court is not required to medically diagnose such emotional consequences in the present proceedings. But the relevant part is that the wife had undergone the treatment in an attempt to overcome the difficulty relating to childbearing and to preserve the matrimonial relationship.
The Madras High Court said that such conduct is wholly inconsistent with the allegation that she had deliberately avoided matrimonial life or had no intention of continuing the marriage.
The Madras High Court said: “Indeed, the very fact that the wife subjected herself to repeated and difficult fertility treatment demonstrates that she had not abandoned the matrimonial relationship. The treatment involved physical discomfort, repeated medical procedures, emotional uncertainty and considerable personal strain.
Thus the Madras High Court ruled that her willingness to undergo such treatment cannot be treated as conduct amounting to cruelty; rather, in the circumstances of the present case, it is a circumstance demonstrating her intention to preserve the marriage.