فیملی کورٹ جنس کے تعین کیلئے طبی معائنہ کرانے کا حکم صادر کرسکتی ھے

 2021 C L C 204

Whether the Family Court is competent to direct a party to undergo medical examination?

Whether the marriage between the parties is void because the female lacks feminine characteristics?

Family Court is competent to direct a party to undergo medical examination but that power is subject to the conditions.

It must be emphasized that the court should not allow itself to become a tool in the hand of unscrupulous persons and order medical examination of a party only in exceptional circumstances when no alternative is available. Roving inquiry is not permissible. There must be sufficient material before the court to justify such an order. If the concerned person refuses to comply with the direction it cannot compel him. It would only draw such inference as may be appropriate on the facts and in the circumstances of the case.

The court should specifically put the noncooperating party on notice about the consequences of its conduct and warn it what adverse inference may be drawn against it.

Admittedly, marriage is a contract which entails various rights and obligations. In Islam these, inter alia, involve dower, maintenance and sexual relationship. However, they can only be enforced if there is a valid marriage – just as other contracts are enforceable if they are valid. The classic Islamic law recognizes four genders among human beings: male, female, Khunsa (translated as ‘intersex’ or ‘hermaphrodite’, i.e. a person who has both male and female anatomy), and the Mukhannath (an effeminate male, i.e. a man who resembles women). Khunsa are of two types: Wadhih (discernible) and Mushkil (problematic/intractable). The former is a person with both male and female genitals but specific gender can be assigned to him on the basis of the attributes of the dominant sex. For example, if that person urinates from penis, ejaculates semen, or grows facial hair, he can be regarded as male. On the other hand, if that person develops breasts and mensuration, she would be regarded as female. In contrast, Khunsa Mushkil is a person who cannot be categorized either as male or female. Islamic jurists made the classification of Khunsa on the basis of the knowledge available in their times. “Today doctors are capable of determining a Khunsa’s sex by investigating his karyotype, gonadal tissue histology and internal reproductive organs. They do not depend on the appearance of the external genitalia.”