MALTI DEVI Vs. MUKESH GOSWAMI

JUDGEMENT

(1.) Present petition under Sec. 482 of Cr.P.C. has been preferred by the petitioner against the order dtd. 22/8/2023 passed by the Additional Principal Judge, Family Court, Gwalior, in Criminal Case No.385/2015, whereby an Application under Sec. 45/73 of the Indian Evidence Act for calling a medical expert to check the physical status of the respondent, who is claiming himself to be a transgender and is denying that he is the husband of present petitioner, has been dismissed. In the application, it has also been alleged that present respondent had got himself operated and converted himself to a transgender which fact could only be verified by calling a medical expert/doctor. Learned trial Court after considering the contents of the application, observed that since the present proceedings are under Sec. 125 of Cr.P.C. for maintenance, the basic fact as to whether present petitioner is the wife of the respondent is to be established and no fruitful purpose would be served in allowing the said application and getting the physical status of respondent verified and by way of evidence petitioner has to establish the aforesaid facts that she is legally wedded wife of the respondent and accordingly dismissed the application. Aggrieved by the aforesaid order dtd. 22/8/2023, present petition has been filed.

(2.) Learned counsel for the petitioner has argued on similar lines as has been alleged in the application and has contended that only on the basis that respondent is a transgender, he is shying of making payment towards maintenance in the proceedings under Sec. 125 of Cr.P.C., and therefore, the application under Sec. 45/73 of the Indian Evidence Act deserved to be allowed, but the same has been rejected by the learned trial Court which is per se illegal. After hearing counsel for the petitioner and perusing the impugned order, this Court finds that no illegality has been committed by the learned trial Court in rejecting the application, as admittedly the proceedings in which the said application was moved were that of maintenance under Sec. 125 of Cr.P.C. and in that the factum of the parties to be husband and wife is to be established.

(3.) The learned trial Court has rightly observed that the application preferred by the petitioner in these proceedings is of no consequence. This Court does not find any reason to take a contrary view. Accordingly, the petition being devoid of any merits is hereby dismissed.