Plea Of Privacy Not Tenable To Resist Gender Detection Test By Parties In Matrimonial Disputes: MP HC [Read Order]

The order was passed by Justice Subodh Abhyankar in a petition invoking supervisory jurisdiction of the high court under Article 227 of the Constitution, filed by one Surbhi Trivedi (Petitioner), through Advocate Sampoorn Tiwari, against an order of the Family Court whereby the Principal Judge had directed that her gender be verified by a Government lady doctor.

In the backdrop of the case, the Petitioner herself had moved an application for restitution of conjugal rights before the Family Court, wherein the Respondent husband, Gaurav Trivedi, had moved an application under Section 151 of CPC praying that the Petitioner be examined medically as she lacked womanly attributes and was a transgender.

While the Petitioner raised the plea of privacy therein and contended that they had been married for eight years and that their marriage had been consummated, the Family court directed her to be medically examined.

Before the high court she submitted that she could not be compelled to have her femininity determined by way of the medical examination as the same would be in violation of Articles 20(3) and 21 of the Constitution.

Concurring with the Respondent-husband's contentions however, Justice Abhyankar held that the Family court had not committed any illegality or jurisdictional error in directing the Petitioner to undergo femininity test. He opined that the parties must be given an opportunity to produce any evidence "having a nexus with the lis".

"In a matrimonial dispute, if gender of one of the parties is questioned by the other party, it assumes importance and the party raising such issue also has a right to adduce the evidence in this behalf and the other party, to rebut the same," he said.

Further commenting on the plea of privacy so raised by the Petitioner, he said,

"This Court is conscious of the fact that one's sex/gender is one's own business, but when it comes to marriage, the other partner's rights are also closely attached with the same, as it assumes importance to maintain a healthy and peaceful married life, and since he or she also has a fundamental right to life under Article 21 of the Constitution of India, the rights of both the parties are evened out. In such circumstances, the plea of violation of privacy or any fundamental right is not tenable."

Reliance was placed on Amol Chavhan v. Smt. Jyoti Chavhan, 2012 (1) MPLJ 205, wherein a reference was made to the decision of the Apex Court in Sharda v. Dharmpal, (2003) 4 SCC 493, to hold as under:

"So far the issue regarding infringement of petitioner's personal or fundamental rights flowing from Article 21 is concerned, in the opinion of this Court, there is no such infringement in a proceeding of this nature, where a question raised regarding impotency of petitioner by the wife, the Court has inherent power to direct the petitioner to undergo medical test."

Thus the order of the Family court directing medical examination of the Petitioner so as to verify her gender was upheld. The court also cautioned that in cases where such allegations are intended only to harass, scandalize or demoralize the other party, the Courts are competent enough to impose heavy cost on the person alleging the same so as to discourage such practice.

The Respondent was represented by Advocate R. K. Sanghi.

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