Childlessness not cruelty: the Madurai Bench of the Madras High Court has held that the inability of a couple to have a child cannot be converted into a matrimonial fault of the wife, dismissing a husband’s appeal for divorce on grounds of cruelty and observing that marriage cannot be reduced to the sole object of procreation.
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Madurai: The Madurai Bench of the Madras High Court has dismissed a husband’s appeal against a Family Court order refusing him a divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955, holding that cruelty was not proved and that a wife’s fertility treatment shows her intention to preserve the marriage [A v. S].
A Division Bench of Justice G.R. Swaminathan and Justice M.D. Sumathi delivered the judgment on September 30, 2026 in CMA(MD) No. 724 of 2022.
The case
The couple married on June 18, 2007 at Theni and have no children. The husband sought divorce on the ground of cruelty, alleging that the wife made humiliating remarks, suspected him of infidelity and assaulted him in June 2016. The wife denied the allegations and pointed to the fertility treatment and the surgery for a fibroid growth that she had undergone. The Family Court dismissed the petition in March 2022, finding that the serious allegations lacked independent corroboration, that no police complaint had been made despite the claimed severity, and that the wife’s treatment showed her commitment to the marriage. The husband appealed.
The husband’s counsel argued that matrimonial conduct must be viewed cumulatively, that prolonged separation indicates an irretrievable breakdown, and that matrimonial cruelty ordinarily occurs within the four walls of the matrimonial home and cannot be expected to have eyewitnesses. The wife’s counsel maintained that the allegations were unproven and specifically denied.
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Burden of proof
On proof, the Bench held that the burden rests on the spouse alleging cruelty:
“the burden rests upon the spouse alleging cruelty to establish the same by acceptable evidence.”
The Bench held that unproved allegations do not become established fact merely by accumulation. It found the claims of humiliation unsupported by any witness, held that questioning the husband about late arrival does not amount to cruelty, accepted the wife’s explanation about her visits to her mother’s home, and found the alleged June 2016 assault unsubstantiated by independent evidence.
Childlessness and fertility treatment
Describing fertility treatment as involving repeated hormonal injections, repeated monitoring through scans and blood tests, and invasive procedures, with considerable emotional strain, the Bench observed:
“The inability of the parties to have a child cannot, by itself, be converted into a matrimonial fault of the wife. Marriage cannot be reduced to the sole object of procreation.”
The Bench added:
“There is also a pain which cannot always be seen or measured. With every unsuccessful attempt, a woman may be left wondering whether her body is at fault, whether she has failed in fulfilling her husband’s expectations.”
Separation and breakdown
The Bench rejected the argument that prolonged separation establishes cruelty, holding that “irretrievable breakdown of marriage is not, by itself, a statutory ground available to the husband”. It treated the wife’s continued willingness to reunite as inconsistent with intentional abandonment and held that her willingness to undergo painful treatment “demonstrates her intention to preserve the marriage”. Finding “no perversity, illegality or material irregularity warranting interference” in the Family Court’s judgment, the Bench dismissed the appeal.
Why The Childlessness Not Cruelty Judgment Matters
The judgment holds that childlessness, where a spouse has undergone fertility treatment in good faith, cannot be recast as cruelty by the other spouse, and it reaffirms that cruelty must be proved by acceptable evidence rather than inferred from accumulated, uncorroborated allegations. It also restates that irretrievable breakdown is not by itself a ground for divorce under the Hindu Marriage Act.
Case Title: A v. S [CMA(MD) No. 724 of 2022]
Bench: Justice G.R. Swaminathan and Justice M.D. Sumathi, Madurai Bench of the Madras High Court
Date of Judgment: September 30, 2026
Appearance: Mr. R. Murali for the appellant (husband); Mrs. S. Vaidurya for the respondent (wife)