Plea of privacy cannot be a defence in gender test in matrimonial dispute: MP High Court

It has to be remarked first and foremost that in an important and a landmark observation, the Madhya Pradesh High Court has just recently on October 4, 2019 in a notable judgment titled Smt. Surbhi Trivedi Vs. Gaurav Trivedi in Misc. Petition No. 4820 of 2018, held that in a matrimonial dispute, if gender of one of the parties is questioned by the other party, the court may direct such a party to undergo medical examination and the plea of violation of privacy shall not be tenable. This extremely important judgment 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. Justice Abhyankar while concurring with the respondent's-husband contentions clearly held that the Family Court had not committed any illegality or jurisdictional error in directing the petitioner to undergo feminity test. It was held that the parties must be given an opportunity to produce any evidence 'having a nexus with the lis'.

Regarding the law laid down, it is clearly mentioned in this judgment right at the outset that, '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. 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. The plea of violation of privacy or any fundamental right is not tenable.'

To start with, the ball is set rolling in para 1 of this landmark judgment wherein it is envisaged that, 'This petition has been field by the petitioner/wife under Article 227 of the Constitution of India against the orders dated 16.8.2018 as also order dated 25.9.2018 passed in Case No. 112-A/2017 by the Principal Judge, Family Court, Jabalpur, whereby the learned Judge, by accepting an application filed by the respondent husband under Section 151 of CPC has directed that the gender of the petitioner be verified by a Government lady doctor and vide order dated 25.9.2018, the petitioner is directed to keep herself available for medical examination on 10.10.2018 before the Dean, Netaji Subhash Chandra Bose, Medical College, Jabalpur.'

To recapitulate, it is then pointed out in para 2 that, 'Brief facts of the case are that the marriage of the petitioner-wife and the respondent husband was solemnized on 22.11.2009 at Jabalpur and after sometime a dispute arose between the parties which led to the present petitioner-wife filing an application under Section 9 of the Hindu Marriage Act, 1955 in the Family Court, Jabalpur. A reply to the aforesaid application has also been filed by the respondent along with an application under Section 151 of CPC with a prayer that as the petitioner lacks womanly attributes and is a transgender hence she be examined medically at Netaji Subhash Chandra Bode Medical College, Jabalpur. A reply to the aforesaid application was also filed by the petitioner opposing the same on the ground that the marriage between the parties was solemnized on 22.11.2009 and since last eight years the husband has never raised this issue before any authority and suddenly he has realized that the petitioner is transgender, which in itself is absurd hence the application is liable to be dismissed. It was further stated that even according to the reply of the respondent they had consummated the marriage, hence the said application being frivolous be dismissed.'

While elaborating upon the decision of the Family Court, it is then stated in para 3 that, 'The learned Judge of the Family Court vide the impugned order dated 16.8.2018 has allowed the said application taking note of the medical papers submitted by the respondent in respect of the petitioner's physical attributes and it is directed that the petitioner shall get herself examine at the Netaji Subhash Chandra Bose Medical College, Jabalpur and its cost shall be born by the respondent only.'

Needless to say, after hearing the learned counsel for the parties and perusing the record as mentioned in para 6, it is then pointed out in para 7 that, 'The learned Judge of the Family Court vide its impugned order dated 16.8.2018 has allowed the aforesaid application holding that the medical examination of the petitioner is necessary. In the considered opinion of this Court, no illegality or jurisdictional error has been committed by the learned Judge of the Family Court for the reasons assigned as here under.'

Most importantly, it is then very rightly held in para 8 without mincing any words that, 'This Court is of the considered opinion that if any evidence having a nexus with the lis between the parties, should be allowed to be produced. 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. 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.'

It cannot be lost on us that it is then further pointed out in para 9 that, 'In the judgment rendered by the Coordinate Bench of this Court in the case of Amol Chavhan Vs. Smt. Jyoti Chavhan, reported as 2012 (1) MPLJ 205, wherein, this Court, in a case where an application was filed by the wife for medical examination of the husband to ascertain if the husband is impotent or not, has held that the order passed by the trial Court directing the medical test of the husband to ascertain the impotency is just and proper. The relevant para 10 and 11 of the said judgment reads as under:-

'10. The Apex Court has relied on Sharda vs. Dharampal, reported in (2003) 4 SCC 493 to hold that medical examination by experts is permissible to ascertain the truth of the matter. In view of this, question No. 1 deserves to be answered against the petitioner. The Court below took a plausible stand and, therefore, cannot be interfered in this proceeding under Article 227 of the Constitution.

11. 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.'

Reference may also be had to the judgment of the Hon'ble Apex Court in the case of Dipantia Roy Vs. Ronobroto Roy, reported in (2015) 1 SCC 365 wherein the DNA of the son was directed to be taken where the allegation was of infidelity of the wife by the husband.'

What's more, it is imperative to now mention that it is then made absolutely clear in para 10 that, 'Having held in favour of the medical test, this Court is also of the firm opinion that if such rights to defend oneself are used in a manner so as 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. In view of the aforesaid, in the considered opinion of this Court no case for interference is made out.'

In other words, the Madhya Pradesh High Court while firmly ruling in favour of medical test which according to it does not violate any right to privacy or any other fundamental right also simultanously makes it amply clear that if such rights to defend oneself is itself made an instrument of oppression by using it as a potential weapon to harass, scandalize or demoralise the the othe party then the Court will not refrain from imposing heavy cost on the person alleging the same to send a strong and unmistakable message that if it is misused then those misusing it would have to face the music of law!

Lastly, it is then held in the last para 11 that, 'As a result, petition being devoid of merit is hereby dismissed. It is also directed that the petitioner shall be examined as directed by the learned Judge of the Family Court and for this purpose she is now directed to appear before the Dean, Netaji Subhash Chandra Bose Medical College, Jabalpur on 14.10.2019 at 11.30 AM. The report so prepared be furnished to the concerned Court in a sealed envelope for its use in the proceedings.'

In conclusion, it may well be said with a fair degree of satisfaction that Justice Subodh Abhyankar of the Madhya Pradesh High Court has very rightly held and very rightly interpreted in this latest, landmark and extremely laudable judgment that plea of privacy not tenable to resist gender detection test by parties in matrimonial disputes. Parties must therefore be always ready to submit themselves for gender detection test whenever and wherever it is considered necessary! What is wrong in it? Nothing wrong!