Same Sex Marriage and Divorce Fraud

Same sex marriage and divorce fraud is in the news in India. The Indian Supreme Court has just asked a woman to respond to her husband’s divorce petition in which he claims his wife defrauded him because she is not a female according to medical reports.

India Same Sex Marriage

Truth Alone Triumphs

What defines gender and sex in a marriage and does it even matter? Those questions come to mind because of an interesting case which was filed before the Supreme Court of India. A man first filed a criminal action against his wife for cheating and fraud, alleging she has “external male genital structure.” Later, he filed a civil action for divorce.

The petition, filed through advocate Praveen Swarup, said that the man and woman’s marriage was solemnized in July 2016. The petition also said that after solemnization of marriage, the wife did not consummate for a few days on the pretext that she is undergoing a menstrual cycle and thereafter she left the matrimonial house and returned after a period of 6 days.

In the following days, when the man tried to get intimate with his wife, he found that the vaginal opening was absent.

The medical report of the wife states she is biologically female, with ovaries, and identifies as a woman. It also mentions that she has “external male genitalia” such as an “imperforate hymen and penis” (a medical condition in which hymen covers the whole opening of the vagina), the petition said.

The petition further mentioned that the woman was advised to undergo surgical repair but the doctor also told the petitioner that even if an artificial vagina is created through surgery, consummation may take place but the chances of getting pregnant are close to impossible.

After this medical examination, the petitioner felt cheated and called up the father of his wife, to take his daughter back. The woman underwent surgery and then returned to her husband’s house after the woman’s father allegedly forcibly entered the man’s house threatened him to keep his daughter at his house.

Florida Same Sex Marriage

I have written about same-sex marriages in Florida before. In the federal court case of Brenner v. Scott, one the leading cases in Florida on the issue, a same-sex couple tried to have their Canadian marriage recognized in Florida.

By Florida refusing to recognize the foreign marriage certificate and designate each of the couple as spouses, the couple who were employed by the state if Florida, were not eligible for any spousal benefits in the Florida retirement benefits program.

The U.S. District Court, after finding that marriage is a fundamental right under the Fourteenth Amendment’s Due Process and Equal Protection Clauses, held that Florida’s same-sex marriage laws must be reviewed under strict scrutiny, and are unconstitutional.

The injunction ordered the Secretary of the Florida Department of Management Services and the Florida Surgeon General to cease enforcing Florida’s ban on same-sex marriage.

In Obergefell v. Hodges the U.S. Supreme Court ruled same-sex marriage is legal everywhere in the U.S., and Florida couples no longer need to worry about laws changing and can move to any U.S. state without worrying that their marriages will not be recognized.

Cry Me A Narmada River

The Indian Supreme Court initially denied the petition. However, Justices Sanjay Kishan Kaul and MM Sundresh have now asked the woman to file a reply to her husband’s divorce petition challenging a Madhya Pradesh High Court order of last summer.

The Madhya Pradesh High Court is located in Jabalpur. Along with being located on the Narmada River,  Jabalpur is primarily known for its marble rocks. It is also the country’s 38th-largest urban agglomeration according to a recent census.

The medical history of the woman shows “penis + imperforate hymen”, so she is not a female, the Supreme Court said issuing notice to her to respond within four weeks.

The High Court had previously dismissed the man’s petition saying “only on the basis of oral evidence and without medical evidence”, a cheating charge could not be established.

The NDTV article is here.

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