New Delhi: A husband filed a plea in the Supreme Court seeking divorce on the ground that he has been cheated as the medical history of his spouse did not reveal she was not a ‘female’. The Supreme Court bench of Justices Sanjay Kishan Kaul and MM Sundresh has issued a notice to the wife on the husband’s plea, to file a reply to the husband’s petition challenging a Gwalior bench of Madhya Pradesh High Court order dated 29-07-2021.
‘A 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. The Bench noted the husband’s contention that the medical history of the respondent shows ‘Penis + Imperforate hymen’ thus his wife is not a female.
The petitioner said that 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. When he tried to consummate, he found that there was no presence of vaginal opening. 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). The wife then 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) . This is a medical condition in which female’s clitoris is enlarged or the genitals look more like those of a male child] three 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 he was not informed before solemnisation of marriage that she was suffering from ‘Congenital Androgen Hyperplasia’ (CAH).
Considering 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.
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