united-states india divorce
Can gender fraud be used to nullify a marriage in India?
<h2>Hypothetical</h2>

<ul>
<li><strong>A</strong> is a male who married <strong>B</strong>, a woman, in India under Hindu religion.</li>
<li><strong>A</strong> had never met <strong>B</strong>, and relied on photographs and the efforts of third parties.</li>
<li>The marriage is less than 2 months old.</li>
<li><strong>A</strong> is of the opinion that <strong>B</strong> has a masculine appearance and acts in a characteristically male manner.</li>
<li><strong>A</strong> currently lives in the U.S.</li>
<li><strong>A</strong> wants a divorce and anticipates that <strong>B</strong> will resist his efforts to divorce.</li>
</ul>

<h1>Questions</h1>

<ul>
<li>Can <strong>A</strong> successfully file for divorce or have the marriage annulled?</li>
<li>What defenses can <strong>B</strong> assert to stop a divorce or annulment?</li>
</ul>

<p>First, it is quite unlikely that a US court would take on the case. Someone will have more details, but for example in EU law if you move away from the place you last lived together, you can only file for divorce in the country where your partner is living (in this case, India). Annullment is a much more serious matter than divorce, so I doubt any American court would take this case: Annulment would mean that a US court would have to decide that an Indian registry office didn't do its job right. </p>

<p>Second, <strong>A</strong> needs convincing evidence. Frankly, "masculine appearance" and "typical masculine voice" are just opinions and therefore not evidence. Even if the court were convinced that <strong>B</strong> has a "masculine appearance" that's not evidence for being a male. <strong>A</strong> has to show the evidence, and as half of us know and the other half learned in their biology lessons, there is some pretty convincing evidence that someone is a man which <strong>A</strong> didnt' mention. And I'd ask anyone not to edit this out, because it is quite essential to the case. <strong>B</strong> doesn't have to visit a doctor and get a statement that she is a woman (which would destroy any case immediately), because based on the available evidence, <strong>A</strong> will lose the case anyway. </p>

<p>On the other hand, after that court case has finished, <strong>B</strong> can at any time (after appropriate waiting times according to US law) come to the USA and file for divorce.</p>

<p>To answer the question about gender:</p>

<p>In jurisdictions that do not allow same-sex marriages, a marriage is automatically considered invalid if it is discovered after the marriage that both partners are of the same sex. </p>

<ul>
<li>In the US and the UK, this is called a <a href="https://en.wikipedia.org/wiki/Void_marriage" rel="nofollow">void marriage</a> (not to be confused with a <em>voidable</em> marriage, which is one that is not automatically void, but only if one partner requests it in court).</li>
<li>In Germany, it would simliarly be a <a href="https://de.wikipedia.org/wiki/Nichtehe" rel="nofollow">Nichtehe</a> (literally "non-marriage").</li>
<li>In India, the <a href="https://en.wikipedia.org/wiki/The_Hindu_Marriage_Act,_1955" rel="nofollow">Hindu Marriage Act</a> also defines a "void marriage" with similar rules. However, it does not explicitly mention same-sex marriages, so whether such a marriage is void would probably depend on interpretation by the court.</li>
</ul>

<p><em>Note:</em> Even if the marriage is not automatically void because of the same gender, it might still be void or voidable because of deception (if that can be proved). For example, in Germany a marriage is voidable (but not void) if one partner deceived the other to make them agree to the marriage.</p>

<p>That is a different question, however...</p>
