The Allahabad High Court recently granted bail to a man who was accused of establishing sexual relationship with a transwoman on a false promise of marriage [Mohd Saakir @ Mohd Sakir v. State of UP]

Justice Arun Kumar Singh Deshwal ruled that the term 'woman' under Section 69 of the Bharatiya Nyaya Sanhita (BNS) – which penalizes sexual relationships established on false promise to marry – does not include a transgender woman.

The Court said that a transgender person has a separate identity under the Transgender Persons (Protection of Rights) Act, 2019.

"The above definition of transgender person clearly shows that even if a person was assigned gender as a male at the time of birth and after sex reassignment surgery, he became female or if a person was assigned gender as a female at the time of birth and after sex reassignment surgery, he became male then it is clear that transgender man/woman will still be a transgender and not the male human being or female human being. The word 'woman' mentioned in Section 69 of BNS includes only female human being," the Court held.

However, the Court clarified that a transgender person can invoke provisions of the Transgender Persons (Protection of Rights) Act, 2019 in case they face sexual abuse of any kind.

"Section 18 (d) of the Act, 2019 provides that any harm, injury, including physical abuse, sexual abuse, would be punishable under that section with the imprisonment of up to two years. Therefore, specific provision providing punishment for sexual abuse of a transgender has been made under Section 18(d) of Act, 2019," the Court said.

It also noted that the the Parliamentary Standing Committee of Home Affairs in its 2023 report before the Rajya Sabha had recommended that necessary amendments be made in the BNS to bring a transgender woman within the purview of rape.

However, the report was not accepted by the Parliament and the word 'woman' under the BNS does not include a transwoman, the Court said.

The Court made the observations while dealing with the bail plea of a man booked under Section 69 of the BNS by the Bareilly police. The complainant, a transgender woman, was in relationship with the accused for more than one-and-a-half years, after he allegedly promised to marry her. However, she alleged that subsequently, after taking over ₹5 lakh from her, he refused to marry her and his family members also scolded her.

Seeking bail in the case, counsel representing the accused said that complainant was born a male and underwent a vulval reconstruction surgery in April 2023. He added that a medical board found that she was "not actually" female, "but a male with the changed genital part without having uterus." Thus, it was argued that Section 69 of the BNS was not attracted in the case.

The Court noted that the victim herself has admitted that she was born as a male "but having psyche of woman, changed herself into a trans-woman through sex reassignment surgery".

It added that she has not applied for formally changing her gender.

"Therefore, prima facie no case under Section 69 BNS is made out. Therefore applicant is entitled to be released on bail," the Court said.

Advocate Mayuri Mehrotra appeared as amicus curiae in the case.

Advocate Krishna Gopal represented the accused.

Additional Government Advocate Ram Kumar Verma represented the State.

[Read Order]