Wife Is Not A Female | Husband Moves Supreme Court In Cheating Case Against Spouse, Her Father

The Supreme Court on March 11 has issued notice in a petition moved by a husband seeking a cheating case against his wife. According to the man, his ‘wife’ allegedly concealed the fact that she was physiologically not a female at the time of marriage.

Background: 

According to the petitioner, he got married to the respondent wife in July 2016 and after solemnisation of marriage, she did not consummate marriage for few days and thereafter left the matrimonial house, reported Livelaw.

The petitioner has submitted that when he tried to consummate marriage, he found that there was no presence of vaginal opening and his wife has a small penis, like a child. Post this discovery, he took her for medical check-up where it was diagnosed that she has a medical problem called ‘Imperforate hymen’ (A medical condition in which hymen covers the whole opening of the vagina).

According to the petitioner, the wife left the matrimonial house, and again went for a medical check-up where it was found that she was diagnosed with ‘Congenital Adrenal Hyperplasia’ (CAH) [A medical condition in which female’s clitoris is enlarged or the genitals look more like those of a male child] 3 years back and she was prescribed hormonal supplements.

The petitioner has also alleged that her father- in-law along with others forcibly entered his house and abused him in obscene language and threatened to kill him on account of refusal to keep his wife in the matrimonial house.

Thereafter, petitioner filed an application under section 12(1)(a) of the Hindu Marriage Act, 1955 to declare the marriage null and void on account of inability of his wife to consummate marriage.

The petitioner has alleged that in January 2017, the wife lodged an FIR for cruelty under Section 498A IPC against him as a vindictive measure.

He then filed a complaint against his wife and her father before Judicial Magistrate, First class, Gwalior (M.P.)asserting that his wife and her father committed fraud because her was not informed before solemnisation of marriage that she was suffering from ‘Congenital Androgen Hyperplasia’ (CAH).

Allegations by Husband:

The husband contended that his wife is not a female due to presence of a Penis and an Imperforate Hymen, and the concealment of this fact from him amounts to the offence of cheating under Section 420 of the Indian Penal Code.

According to the petitioner-husband, his wife was diagnosed with “Congenital Adrenal Hyperplasia” which is a medical condition in which female’s clitoris is enlarged or the genitals look more like those of a male child. However the same was concealed from him, which amounts to cheating by his wife and her father, he argued.

Trial Court

The Trial Court rejected his application on the ground that medical evidence has not been provided with affidavit. The Trial Court further directed the wife to undergo medical check-up on various occasions but she failed to comply with the said order.

Taking into account the medical evidence provided by the husband , the Trial Court held that prima facie case is made out against the wife and her father and took cognisance under Section 420 read with section 448 of Indian Penal Code. This order was set aside by the High Court through the impugned order.

Madhya Pradesh High Court

The High Court had dismissed the husband’s complaint holding that, only on the basis of oral evidence and without any medical evidence, no offence under Section 420 of Indian Penal Code, 1860 was made out. The High Court had noted that there was nothing adverse in the medical report against the wife, after she was examined at a hospital in Gwalior.

Supreme Court of India

A Bench comprising Justice Sanjay Kishan Kaul and Justice MM Sundresh noted the husband’s contention that the medical history of the respondent shows “Penis + Imperforate hymen” thus his wife is not a female. In the order, the bench said,

Learned counsel for the petitioner has drawn our attention inter alia to page 39 to contend that the medical history of the respondent shows “Penis + Imperforate hymen” thus respondent is not a female.

Thus the bench issued notice in the special leave petition filed against Madhya Pradesh High Court’s judgement setting aside Trial Court’s order taking cognisance for offence of cheating against the wife and her father.

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