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Archana Kumari vs The State Of Bihar on 5 August, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.42950 of 2019
Arising Out of PS. Case No.- Year-0 Thana- District- Muzaffarpur

ARCHANA KUMARI Wife of Arbind Kumar , Daughter of Ram Amir Pandit
At present residing at Mohalla- Naya Tola, P.S.- Kazi Mohammadpur,
District- Muzaffarpur.

… … Petitioner/s
Versus
1. THE STATE OF BIHAR Bihar
2. Arbind Kumar Son of Bachoo Bhagat Resident of Quarter No. CD/488,
Sector -3, Dhurwa, P.S-Dhurwa,Ranchi, Jharkhand.

… … Opposite Party/s

Appearance :
For the Petitioner/s : Mr. M.N. Parbat, Sr. Advocate
Mr. Ved Prakash Srivastva, Advocate
For the Opposite Party/s : Ms. Nirmala Kumari
For the O.P. No. 2 : Mr. N.K. Agrawal, Sr. Advocate

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL ORDER

3 05-08-2019 Heard Mr. M.N. Parbat, learned senior advocate

for the petitioner and Mr. N.K. Agrawal, learned senior

advocate for the opposite party no. 2.

The petitioner/wife has challenged the order

dated 22.04.2019 passed by the Principal Judge, Family

Court, Muzaffarpur in Maintenance Case No. 1 of 2014

whereby the application preferred on behalf of the

husband/opposite party/Arbind Kumar to subject the

wife/petitioner to medical examination for ascertaining

her gender has been allowed.

Patna High Court CR. MISC. No.42950 of 2019(3) dt.05-08-2019
2/7

Mr. M.N. Parbat, learned senior advocate for

the petitioner has submitted that at the time of grant of

bail, the husband/opposite party no. 2 agreed for

keeping the wife with full dignity and honour. The

allegation of non-consummation of marriage was never

raised before any court despite the litigation between the

spouses pending for several years. Even with respect to

the physical traits of the petitioner concerning her

femininity has never been questioned in any proceeding

before the court. A divorce petition also was earlier filed

which ended in settlement/compromise. Later, another

divorce petition has been filed. This Court has not been

informed of the grounds for settlement of the first

divorce petition and the grounds on which the second

divorce petition has been filed.

In any view of the matter, it has been urged

that after such a long span of time since the relationship

between the spouses have gone on rocks, such a plea of

the petitioner being a transgender is only for the
Patna High Court CR. MISC. No.42950 of 2019(3) dt.05-08-2019
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purposes of demoralizing her and deflecting the course

of justice and prevent the court from passing any order

on the issue of maintenance.

As opposed to the aforesaid contention, Mr.

N.K. Agrawal, learned senior advocate has submitted

that any order passed by a court, even in a proceeding

under Section 125 Cr.P.C. for maintenance presupposes

the relationship of a man and wife. He has further

submitted that since the petitioner is not capable of

procreating because of absence of feminine features in

her, any order of maintenance would be against the

spirit of providing maintenance to a wife who has been

deserted by her husband.

The issue involved in the present controversy is

of seminal importance.

Certain conditions have been fixed under the

SectionHindu Marriage Act, 1955 for a marriage to be valid. A

marriage can be solemnized between two hindus if

neither party has spouse living at the time of marriage
Patna High Court CR. MISC. No.42950 of 2019(3) dt.05-08-2019
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and the parties are capable of giving a valid consent and

are not suffering from any mental disorder of such a

kind or to such an extent so as to become unfit for

marriage and for the procreation of children or is not

insane. There are certain other necessary conditions also

for a marriage to be valid viz. the respective ages of the

parties and their being outside the prohibited relationship

unless custom or usage would permit of such marriages.

Section 11 and Section12 of the Hindu Marriage Act,

1955 defines void and voidable marriages respectively. A

marriage is void if either of the parties to the marriage

has a living spouse other than the wife and the parties

are within the prohibited relationship of marriage and

there being no customary right of such marriage. A

voidable marriage is one in which the marriage has not

been consummated owing to the impotance of the

respondent or such marriage being in contravention of

the condition specified in Clause (ii) of Section 5 which

deals with the capability of giving valid consent; not
Patna High Court CR. MISC. No.42950 of 2019(3) dt.05-08-2019
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suffering from any mental disorder so as to become unfit

for marriage and procreation of children or insane or of

not having completed the age of 21 years and 18 years

respectively of male and female and being within the

prohibited relationship of marriage.

If the claim of the husband that the wife does

not have feminine characteristics is accepted to be true

then, there would be no consummation and the result

would be no procreation of children. For being unfit for a

marriage leading to procreation of children, such

marriage where the wife is alleged to be a transgender

would be void and for non-consummation of marriage,

the marriage would be voidable. For any court to pass an

order of maintenance, it has to be clarified that the

maintenance is to be given to the wife. If the marriage

itself is void, whether it would be legally permissible to

accord maintenance to such person who is claiming

maintenance from the court on the ground of her being

legally wedded wife.

Patna High Court CR. MISC. No.42950 of 2019(3) dt.05-08-2019
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In the present case, these issues are not

relevant particularly in the background facts that the

husband/opposite party no. 2 agreed to live with the

petitioner/wife and also gave an assurance that he shall

keep her with full dignity and honour. Only on such

assurance, the husband was granted the privilege of

anticipatory bail. A divorce petition, for whatever reason

which was filed was ultimately withdrawn on account of

settlement of the differences between the spouses.

Another divorce petition is still pending adjudication. At

no stage of the proceeding, any statement was made by

the husband/opposite party no. 2 about the wife being a

transgender. Thus such statement before the Family

Court at the time of opposing grant of maintenance

cannot be accepted. In this factual background, it has

been urged on behalf of the petitioner/wife that any

order subjecting the wife to medical examination for

ascertainment of her sex is highly unjustified, uncalled

for and not permissible within the limits of the
Patna High Court CR. MISC. No.42950 of 2019(3) dt.05-08-2019
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jurisdiction which is invested with a court while deciding

a petition under Section 125 Cr.P.C.

The matter requires hearing.

However for the present, the order with respect

to the physical examination of the petitioner/wife is

stayed.

The proceeding for maintenance shall continue

and there will be no embargo on the court to pass

interim or final order of maintenance. However this case

shall be listed for further consideration on larger issues

on 14.10.2019.

The issues for consideration would be whether

on grounds of one of the parties to the marriage being a

transgender and the other party not being a

heterosexual could be void or voidable and at whose

instance.

(Ashutosh Kumar, J)
krishna/-

U T

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