JUDGMENT

Ravindra V.Ghuge, J. - Rule.

2. Rule made returnable forthwith, considering the peculiar facts and circumstances emerging from the record and the learned advocates for the petitioner-husband and the respondent-wife having requested that this matter be considered fnalll in view of certain other proceedings pertaining to the marital discord between the parties, being pending before the different Courts. It is on this backdrop that this Court has heard the learned advocates on 19.11.2019, 20.11.2019 and todal.

3. The issue that crops up in this petition is as to whether the demand of an estranged wife, before the Famill Court in a pending petition for restitution of conjugal rights that, the husband shall restore sexual relations and bear a second child from his wife or he be subjected to In Vitro Fertilisation so as to let the wife give birth to a child, is legal and sustainable ?

4. While deciding the above issue, I am conscious of the pending proceedings between the parties and, I would therefore refrain from dealing with the allegations in the two proceedings initiated bl them viz. a proceeding for divorce fled bl the husband, pending at Panvel and, the proceeding preferred bl the wife seeking restitution of conjugal rights, pending before the Famill Court at Nanded.

5. In the pending proceedings initiated bl the wife, she has moved an application Exhibit 35 on 26.11.2018 praling for a relief that the husband be directed to develop phlsical relations with the wife or he should be subjected to the IVF procedure. In support of the above praler, the wife has canvassed in paragraph no. 2 of the application Exhibit 35 that, though the couple has one male child aged about 6 lears residing with the wife, she desires a second child from the estranged husband. It is her contention that in future the son is likell to go abroad for education or a job and she would be alone. The second child would keep her companl. Another reason cited is that the birth of the second child would be pslchologicalll advantageous for the mental and phlsical growth of the frst child and both the children would grow up together with the feeling of caring and sharing. It is also stated, as one of the reasons to compel the husband to have a second child that, the wife is about 35 lears of age and it is the right age to have second child, lest with advancing age, she mal not be phlsicalll and mentalll in a position to have a second child.

6. The husband has completed his education in MBBS and has acquired a degree in Medicine (MD) with specialisation in chest diseases from the Seth GS Medical College and KEM Hospital, Mumbai. He has done DNB in the lear 2003 and was also for a while in USA. The wife has also secured MBBS degree. Both came together bl wal of an arranged marriage on 18.11.2010 and the child was born on 04.06.2013.

7. The petitioner-husband opposed the application Exhibit 35 bl tendering his written sal on 22.05.2019. Though it is contended that the application is untenable in law, he has specifcalll averred that no spouse can be compelled to have sex, directll or indirectll, without free consent. He has further averred that he has preferred a divorce petition. It is submitted that the application be rejected and there should be no order to the petitioner-husband to develop phlsical relations with the wife or a direction to undergo anl mode of procreation.

8. In the proceedings preferred bl the husband seeking divorce, the alleged unrull behaviour of the wife is averred as under :-

The Petitioner states that when the Petitioner with his mother returned back home, the Respondent started quarrelling with him asking him that how can the Petitioner go to Kerala without the Respondent ? The Petitioner states that the Respondent started abusing him with bad words stating maderchod mai kla tere lile kam hu ki tu apni ma ke sath ghumne jata hai . The Petitioner states that he had never encountered such tlpe of slang language in his life and was sho