VALIDATING GENDER DETERMINATION, IF THE PARTIES SO DEMANDS
Laws for gender identification test:
Gender identity can be defined as a personal belief of oneself as a male or female, it is his/ her contention to belief and outward manifestations of personality that reflect the gender identity. Any outside force or order for determination of gender test of a person against her will would lead to infringement of right to privacy and right to live with self-dignity that is article 21 under the India Constitution.
Can Gender determination test be done against consent?
The question was raised before the Madhya Pradesh High Court, in the case of Smt. Surbhi Trivedi vs. Gaurav Trivedi, the appeal was filed under article 227 against the order of the family court in the matrimonial dispute. In the earlier case the Principal Judge of the Family Court, Jabalpur accepted the application and gave the order for the verification of the gender of the petitioner (wife) by govt. hospital.
The facts of the case were such that, the couple was happily married a couple for 8 years and after some time, some dispute arose between them which resulted in the wife applying under sec 9 of Hindu Marriage Act, 1955 that is for the restitution of marriage. Against which the husband filed the reply to that application along with the application under sec 151 of CPC, requesting the court for medically examining the wife in govt. hospital for her gender determination, as she lacks the womanly attributes and hence transgender. In reply to this contention of respondent, the petitioner said that their marriage was solemnized for 8 years and till then respondent doesn’t have any issue and further stated that such contentions were raised by the husband to harass her. The learned judge of the family court held that such an application for her gender determination was valid and allowed the said application, and asked the petitioner to get herself examined, and also that all sorts of expenses to be born by the respondent.
Against such order, the petitioner approached the High Court contending that such order of Family Court would lead to the violation of Article 20(3) and Article 21 of the Indian Constitution. As merely based on the respondent’s contention the petitioner can’t be ordered to determine her femineity, further, it was also submitted that the husband’s impotency might raise the doubt for her husband to hide and harass her may have framed such contention.
Accordingly HC considered opinion that one’s sex or gender is one’s own business and no question can be raised in that issue, but where such question is raised in the matter of matrimonial dispute and the question of gender is raised by the other party then it can be held valid, as verification of gender of other spouse is the right which is closely attached as it is assumed that to maintain healthy and peaceful married life such clarifications are necessary. However, the court also expressed its concern about this being used to harass, scandalize or demoralize the other party and therefore held that in such case of harassing or demoralizing they are competent enough to impose heavy fines. And therefore held that in no case for interference has been made out.
Law laid down:
In a matrimonial dispute, if the 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.[1]
By
Sakshi Raje
Student Reporter, INBA
[1] https://www.livelaw.in/news-updates/plea-of-privacy-not-tenable-to-resist-gender-detection-test-by-parties-in-matrimonial-disputes-mp-hc-read-order-148848