On Friday, the Supreme Court agreed to examine a man’s plea that his wife should be criminally prosecuted for cheating since she has a male genital.
Initially reluctant to entertain the petition, a bench of justice Sanjay Kishan Kaul and MM Sundresh sought a response from the wife after the man adduced a medical report disclosing that his wife has a penis and an imperforate hymen. An imperforate hymen is a congenital disorder where a hymen without an opening completely obstructs the vagina.
Representing the man, senior advocate NK Mody told the bench that a criminal offence under Section 420 (cheating) of the Indian Penal Code is made out because the wife turned out to be a “man”.
“She is a man. It is definitely cheating. Please, look at the medical records. This is not a case of some congenital disorder. This is a case where my client has been cheated by getting married to a male. She definitely knew about her genitals,” Mody emphasised.
The senior counsel was arguing against a Madhya Pradesh high court judgment in June 2021 quashing an order of a judicial magistrate who issued summons to the wife after taking cognisance of the cheating charge. Mody complained that there is sufficient medical evidence to show that the wife cannot be said to be a woman because of an imperforate hymen.
At this point, the court asked: “Can you say that the gender is not female just because there is an imperforate hymen? The medical report states that her ovaries are normal.”
Mody replied: “Not only the ‘wife’ has an imperforate hymen but a penis too. The medical report of a hospital says it clearly. When there is a penis, how can she be a female?”
The bench then asked Mody: “What is it exactly that your client is asking for?”
To this, Mody said the man wants the FIR to be prosecuted properly and the wife along with her father should face the consequences in law for deceiving him and ruining his life.
The court further noted that there is also a criminal case lodged by the wife against the man under Section 498A (cruelty) of the IPC as Mody informed the bench that the case against his client is also pending.
The bench then issued notices to the wife, her father and Madhya Pradesh Police, seeking their replies within six weeks.
In May 2019, a Gwalior magistrate had taken cognisance of the cheating charge against the wife on a complaint filed by the man. He alleged that after their marriage in 2016, he came to know that the wife has a male genital and was physically incapable of consummating the marriage. The man approached the magistrate in August 2017 for registration of an FIR against the wife and her father.
On the other hand, the wife claimed that the man treated her with cruelty for additional dowry and had a complaint lodged with the family counselling centre where the man again claimed that she was a woman .
Meanwhile, the wife was medically examined by a hospital in Gwalior. The judicial magistrate further recorded statements of the man and his sister and issued summons to his wife and her father while taking cognisance of the criminal charge.
Aggrieved by the summons, the wife and her father approached the high court, which allowed their appeal in June 2021 and set aside the magistrate’s order. The high court held that the medical evidence was not sufficient to prosecute the wife and that the magistrate erred in lending too much credence to the statements of the man.
Under the Hindu Marriage Act (HMA), cruelty – mental as well as physical – is a ground for seeking divorce. At the same time, leveling false accusations against a spouse has also been laid down as a valid reason to demand divorce. Divorce under The HMA is based on the fault theory and includes adultery, desertion, conversion to any other religion, insanity, venereal disease, renunciation of the world and presumption of death as other grounds of divorce.
Gender expert Daniella Mendonca said that while an imperforate hymen could be considered an intersex variation, the gender identity of a person -- man, woman or trans -- is based on their self-identification, irrespective of the genitalia. This has been upheld by the Supreme Court in its 2014 Union of India v National Legal Services Authority (NALSA) judgment.
Lawyer Sathiya (who only goes by one name), who works on legal issues pertaining to gender and sexuality, also spoke on the NALSA judgment. “The NALSA judgment clearly states that the gender identity of a person -- man, woman or trans -- is based on their self-identification, irrespective of the genitalia. In fact, NALSA places the right of self-identification of gender at the heart of Article 21, which is the right to life.”
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