Wednesday, January 25, 2023
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‘She’s not always a woman to me’: Court cases on ‘gender-deception’ highlight true cost of stigma

The Supreme Court is currently hearing the case of Hariom, who claims he was cheated into marrying “a kind of transgender”. But, men are not the only victims in such cases.

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New Delhi: The monsoon wedding got off to an auspicious start with no rain to dampen the proceedings. But, later, after the guests had left, the bride Priyanka threw cold water on the amorous expectations of her husband, 29-year-old Hariom. She told him she was on her period and he would just have to wait.

This he did for a few days, but just as the moment of consummation drew near, 22-year-old Priyanka went off to see her family for a few days. By now, Hariom was not just impatient but suspicious. When Priyanka finally returned, he “tried again to consummate [the] marriage” and discovered that her private parts looked as if she had “a small penis, like a child”.

This is the version of the story that Hariom, now 34, has told various courts about the undoing of his marriage, which was solemnised on 13 July 2016 in Lashkar, a town near Gwalior in Madhya Pradesh. He was “cheated”, he claimed, since his wife was “not really a woman” as she could not have sex or give birth like one.

Hariom petitioned the Supreme Court last October, challenging an order of the Madhya Pradesh High Court (HC) that had held that there was not enough evidence to establish a cheating charge against Priyanka and her father. The apex court is currently hearing the petition, a copy of which is with ThePrint.

Priyanka, however, denies these claims and has alleged dowry harassment. Last year, she claimed in a petition to the MP High Court that Hariom was cruel to her “for no good reason” and had “continuously” demanded dowry.

This story is not as unusual, nor as simple, as it may seem.

Court orders from across the country show many husbands claiming that their wives are, in fact, not women. However, these are not straightforward cases of men being ‘victimised’ or ‘cheated’.

File image of transgender persons at a protest | Photo: ANI
File image of transgender women at a protest | Photo: ANI

In many such cases, the women, who are generally born intersex, are also victims of social and familial stigma, secrecy, and violence on account of not conforming to the biological norm.

When they complain to the police, they are less likely to be taken seriously too, according to Guwahati-based trans activist and advocate Swati Baruah. “My experience has shown that the police are not very keen on entertaining a complaint by a trans person, but are quick to file cases against them,” she said.

Such cases often follow similar legal trajectories, too, with complicated court battles involving allegations and counter-allegations. While husbands allege that they were cheated and want to dissolve the marriage, the women often claim dowry demands and harassment. Along the way, women’s personal medical reports become public records and even as there is a struggle to “label” them, they are branded as being, if nothing else, then “not a woman”.


Also Read: New marriage bill can cast the criminality net wider, draw more Indian women to courts & cops


‘A kind of transgender’: Hariom’s side of the story

Since the marriage fell apart after Hariom’s discovery of his wife’s “penis” in 2016, he has approached the trial court, the HC, and now the SC with petitions for Priyanka and her father to be held guilty for cheating under Section 420 (cheating and dishonestly inducing delivery of property) of the Indian Penal Code.

Hariom’s petition in the Supreme Court states that Priyanka does not have “essential biological characteristics of a woman to consummate marriage and reproduce” and that she is “a kind of transgender”.

However, medical records paint a more complex picture.

On 28 July 2016, barely two weeks after the wedding, a medical examination showed that Priyanka had an “imperforate hymen”, a condition in which the hymen covers the vaginal opening.

Days later, on 3 August 2016, doctors advised Priyanka to undergo surgery. She was then diagnosed with Congenital Adrenal Hyperplasia (CAH), a genetic condition that can cause ambiguous genitalia. According to the petition, she also underwent surgery for clitoral reduction with vaginoplasty (a procedure to construct or reconstruct the vagina) in September 2016.

Meanwhile, Hariom approached Priyanka’s father, alleging that he had been fraudulently married to her and that he should “take her back” to the maternal home. However, according to Hariom, his father-in-law arrived with other relatives, “abused” him and “threatened to kill” him.

After the confrontation, Priyanka’s father did take her with him, reluctantly, while Hariom apparently called out, “Why did you guys get married by cheating?” the petition says.

Subsequently, Hariom filed an application under Section 12 of the Hindu Marriage Act, demanding that his marriage be declared null and void, citing Priyanka’s “inability… to consummate marriage”. Section 12 says that a marriage can be annulled on various grounds, including a situation in which “the marriage has not been consummated owing to the impotence” of the husband or wife.

In August 2017, he filed an application before the Judicial Magistrate First Class, Gwalior, claiming that his wife “is not really a woman”. While the trial court ordered Priyanka to undergo a medical examination, she refused to do so.

The trial court then, in May 2019, directed the registration of a complaint against Priyanka and her father under Section 420, on the basis of statements made by Hariom and his sister.

When the Madhya Pradesh High Court set aside the trial court order in July last year, Hariom moved the Supreme Court. He claimed that despite knowing about her having CAH since 2013 and consuming hormonal supplements, she had failed to disclose this to him before marriage.


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‘Right to privacy and dignity’: Priyanka’s case

In January 2017, Priyanka filed a dowry harassment and cruelty case against Hariom. She also maintained that there was no evidence that she wasn’t a woman.

According to a petition she filed in the Madhya Pradesh High Court, in the course of this case under Section 498A (husband or relative of husband of a woman subjecting her to cruelty), she was medically examined by a Gwalior hospital and “nothing was found by which it can be said that the petitioner does not possess female characteristic”.

She also alleged that Hariom filed the cheating case only to “create pressure” on her. Before the trial court and the MP High Court, she asserted that she did not want to undergo medical examination again because she had already been through it once in the 498A case. She also maintained that the trial court should not have drawn adverse inferences against her due to her refusal to be examined again.

In her petition filed before the High Court, she asserted that she has a “right to privacy and dignity” under Article 21 of the Constitution, and so she “cannot be subjected to medical tests again and again”.

Undertones of violence

The men who are ‘cheated’ are often the focal point of stories where the bride is found to have sexually ambiguous physical characteristics. What is often overlooked is the violence and vindictiveness to which such women are frequently subjected.

Consider the case of Tamil Nadu’s Selvam and Anbuselvi, who got married in September 2013. In a petition that he filed in the Madras High Court, Selvam claimed that his wife avoided having sex with him for nearly two years, claiming that she first needed to complete her master’s degree and “achieve a lot in sports”.

In a Madras HC order, it is mentioned, almost casually, that Selvam got to know that his wife was “transgender” when he “forcibly tried to have physical relationship with her” in 2015. After this, he went on to not just file a case against her and her parents under Section 420, but also made a representation to the Tamil Nadu State Commission for Women to cancel her sports certificate, after he found out that she got it under the ‘woman’ category.

He also petitioned the Madras High Court, which then ordered the TN Women’s Commission to consider Selvam’s plea and decide on it.

Another Punjab and Haryana High Court order from November last year tells Prerna’s story. She hanged herself with her chunni (scarf) from a showerhead in April 2018, within six months of having married Ankit Kumar.

While her family alleged that this was a dowry death, Ankit Kumar told the court that she was “not a female, but a transgender” and that she was “forced” to marry him by her relatives. He submitted that after the marriage, she “started living in depression as she felt herself ashamed and humiliated on account of the act of her parents in pressurising her to marry”.

The postmortem report confirmed that she was a “true hermaphrodite (as she had both male and female external genitals/reproductive organs)”. However, her father still denies the claim and the dowry death trial is currently pending.

“Many queer persons, including intersex and transgender persons, may not be fully aware of their identity or status. Some, especially women, are forced to silently enter into such marriages by their families,” Dr Aqsa Shaikh, transgender researcher and rights activist, said.

According to her, “willfully hiding information” about gender and sexuality is wrong and could lead to serious consequences.

“It is expected that a person who discovers that their partner is an intersex or transgender person would be shocked and need counseling for future choices. In many cases this also  leads to violence against the intersex or transgender person, sometimes pushing them to suicide,” Shaikh added.


Also Read: Govt panel for transgender persons suggests medical curriculum be revised, doctors sensitised


Claims and counterclaims

There is a pattern in some divorce and/or cruelty cases. The wife gets a case registered under Section 498A of the Indian Penal Code, which pertains to a husband or his relatives subjecting a woman to cruelty, and the husband counters by claiming that she isn’t a woman. This claim is raised either as a defence for cruelty or to get the marriage declared null and void to avoid paying maintenance.

For proving his claim, the husband usually files an application in the court demanding medical examination of the wife. The Supreme Court has held that a matrimonial court does have the power to compel a party in divorce proceedings to undergo a medical examination. It had, however, cautioned that “a court shall not order a roving inquiry” and that this discretion should only be exercised if there is sufficient material before it to warrant such an examination.

However, courts have so far been wary of directing such an examination. In fact, while noting the lack of documents to support a petitioner’s claim of his wife being “transgender”, a Punjab and Haryana High Court order from February 2020 cited the Puttaswamy judgment on the right to privacy to refuse a medical examination in the case.

The question of privacy also came up before the Patna High Court in 2019.

In this case, a woman called Archana Kumari had approached the HC challenging an order passed by the family court in April 2019, ordering her medical examination for “ascertaining her gender”. Kumari’s counsel contended that her husband’s claim “is only for the purposes of demoralising her and deflecting the course of justice and preventing the court from passing any order on the issue of maintenance.”

The husband, on the other hand, had asserted that she was “not capable of procreating because of the absence of feminine features in her”, any order of maintenance on grounds of desertion would not apply.

The High Court stayed the family court’s order directing the medical examination of the wife. The court then said that it would also consider the issue “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.”

This case, the High Court website shows, is still pending and has not come up for hearing since.


Also Read: 3.9% Indian women who were ever married reported sexual violence from spouse, 9.7% in Karnataka


Legal options

If a husband discovers after marriage that his wife does not have typical female sex organs, what are the options available to him?

In most such cases, the husband has approached a court with a petition under Section 12 of the Hindu Marriage Act.

This, though, is not always enough for the spouse who feels wronged. Hariom, for example, wants his wife and her family members to be held guilty for cheating him under Section 420.

However, Delhi-based criminal lawyer Ajay Verma told ThePrint that this approach was “against the spirit of family law”. 

“If there is concealment of a medical problem, it could fall into the criteria of fraud under the Hindu Marriage Act… Concealment of incurable venereal disease, for instance, is generally recognised as a fraud sufficient to warrant annulment immediately when discovered by the other party,” he said.

Nevertheless, Verma said, concealing a medical issue that made consummation of marriage difficult or impossible did not fall under the ambit of cheating as defined by Section 420. “That such a spouse should be prosecuted under Section 420 for cheating is, in my view, against the spirit of family law,” he said.

According to trans activist and advocate Swati Baruah, too, it does not help anyone that “legal provisions like Section 420 are used as a weapon” in such cases.

“When such allegations are brought against someone… these are not an only attack on the dignity of a transgender [or intersex person], if at all he or she is, it is also an attack on their privacy,” Baruah said.

(Edited by Asavari Singh)

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