A husband has filed a petition in Supreme Court demanding that his wife should be criminally prosecuted for cheating as she has a penis. He adduced a medical report revealing that his wife has a male genital and an imperforate hymen.
The apex court bench of Justice Sanjay Kishan Kaul and Justice MM Sundresh agreed to hear the plea after the husband cited the medical report and sought a response from the wife.
An imperforate hymen is a congenital disorder where a hymen without an opening completely obstructs the vagina.
Senior advocate NK Mody, representing the petitioner, submitted that the 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,” he added.
The plea has been filed challenging Madhya Pradesh high court judgment in June 2021. MP High Court had quashed a judicial magistrate order where the wife was summoned after taking cognizance of the cheating charge.
Senior advocate Mody argued that there is sufficient medical evidence to show that the wife cannot be said to be a woman because of an imperforate hymen.
“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,” the bench asked.
To which 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, “What is it exactly that your client is asking for?”
The petitioner’s counsel then submitted that the man wants an FIR to be prosecuted properly against the wife and her father to face the consequences of the law for deceiving him and ruining his life.
The bench has issued notices to the wife, her father, and Madhya Pradesh seeking their response within six weeks.
The man had approached the magistrate demanding registration of an FIR against wife in August 2017. He had alleged that his wife has a male genital and is incapable of consummating the marriage. Gwalior magistrate took cognizance of the matter in May 2019.
However, the woman submitted that the man treated her with cruelty for additional dowry and had a complaint lodged with the family counselling centre.
The wife was medically examined in a hospital in Gwalior. The judicial magistrate issued summons against the wife and her father while taking cognizance of the allegations.
The aggrieved wife moved Madhya Pradesh High Court. The High Court allowed her appeal in June 2021 noting 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.
“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,” Gender expert Daniella Mendonca said. It has also been upheld by Supreme Court in its 2014 Union of India v National Legal Services Authority (NALSA) judgment.