Marriage of woman who turned man held void as he couldn’t consummate it

MUMBAI: The family court recently declared as void a woman’s marriage to a man, who was formerly a woman, as he was incapable of consummating it. The court observed that it was a “rare type of a petition” filed by a woman, where she said her “husband” was born a girl but transformed into a man after a sex reassignment surgery.

“The marriage can be declared void since the basic foundation of marriage is unavailable,” stated the order passed by Bandra family court Judge P L Palsingankar in February.

The marriage was a nullity, or one that was never valid, said the wife, a 29-year-old fashion designer, through her lawyer Rita Bansal, since her husband could not consummate it.

The court noted that it was “used to disputes between the opposite sexes and it is a rare type of a case where the husband has admitted to being born a girl but felt like a boy trapped in a girl’s body”. The husband admitted in writing that he could not consummate the marriage.

It was the husband, a businessman in his early 30s, who had first filed a petition in the family court in December 2016, a year after the two tied the knot. He, too, had sought, through his lawyers Rita Bhatia and Mansha Mohhammed, that the marriage be declared “null and void” as he said he could not consummate it. He later withdrew the petition after the court suggested that consent terms for divorce be filed.

The wife then filed her petition the same year seeking the same relief of annulment, claiming that since he was unable to consummate the marriage, she was entitled to have it declared void under the Hindu Marriage Act’s Section 11. The section empowers courts to declare a marriage as “null and void’’ or, in other others, as one that is invalid right from inception, and has no legal sanctity as a marriage.

The court was shown the husband’s medical papers and certificates which also underscored the complexities of the surgery and the pros and cons of sex reassignment procedure. It was told the surgery removes a woman’s reproductive organs and replaces these with male ones, transforming the person into a “male personality” but with “sexual restrictions”.

The court took into account his earlier petition and a domestic violence case filed earlier against him to hold that it had “no iota of doubt” that the “husband” was born a girl and had “transformed herself into a boy”. The surgery was done in 2015 after which the two had solemnized the marriage under Hindu vedic rites.

The court ruled out any collusion and held that the “peculiar facts of the case vouch for the authenticity of their statements” that despite reconstruction of a penile organ he could not consummate the marriage.

The two had been sent to a marriage counsellor by the judge too.