Under the Hindu religion, the marriage had assumed the
sacred character of sacrament. The personal thought of marriage
was a prime necessity for that alone could enable a person to
discharge properly his religious and secular obligation. To make it
say it otherwise, the marriage is necessarily a basis of social
organisation and the foundation of important legal rights and
obligation. The importance and imperative character of the
institution of marriage needs no comment and in Hindu Law
marriage is a Sanskar. Therefore, presumed contract as has
been stated by the appellant/husband that the second marriage
was performed on the condition that they would not have a child
from the second marriage cannot be a barrier as a valid sacred
promise, if not performed, will assume the character of cruelty.
Under the Hindu law, marriage is not a contract. Therefore, the
alleged promise as projected by the husband that they would not
have a child from the second marriage cannot be given a priority
over the sacrament or sanskar to have family. The alleged
promise also cannot be pressed into motion against the human
conduct if a lady after the marriage expects to have her own child. The role narrated by husband of contract of not to have child even after marriage is bound to be somnolent. A birth die is cast by nature. To deprive a woman from motherhood as a pre-condition for marriage cannot be given a priority. The type of condition set forth by husband only adds gloomy atmosphere to a married life as against a cheer by a child. Therefore, a demand to have child by wife from husband cannot be constituted a cruelty. {Para 11}
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal (M) No. 138 of 2018
P. Venkat Rao P. Ramarao, Vs Smt. P. Padmavati P. Venkat Rao,
Coram:
Hon'ble Justice Shri Goutam Bhaduri
Hon'ble Justice Shri N.K. Chandravanshi
Author: Goutam Bhaduri, J
Dated: 09.3.2023
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