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.
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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
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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
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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
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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.
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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
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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