Transgender persons who have undergone surgery to become women eligible for protection under Domestic Violence Act: Bombay High Court

The Bombay High Court recently ruled that a transgender person who chooses to be a woman by undergoing gender reassignment surgery can seek relief under the Protection of Women from Domestic Violence Act. [ABC vs XYZ].Justice Amit Borkar stated that the term 'woman' in section 2(a) of the Act, which defines an aggrieved person, is no longer limited to binary gender and includes transgender persons who have undergone gender reassignment surgery to become women.Thus, the Court held that such individuals must be recognized as aggrieved persons under the Act.."The word ‘woman’ in section 2(a) is no more limited to the binary of women and men and includes the transgender person also who has changed her sex in tune with her gender characteristics. Therefore, in my opinion, the Transgender who has performed surgery to change gender to a female, needs to be termed as an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act, 2005," the Court said..The Court was hearing a challenge to an order of a sessions court that had upheld a judgment of a magistrate's court awarding interim maintenance to the woman in a case under the Act..The petitioner, the woman's husband, submitted that the respondent did not fall within the definition of an aggrieved person, as the right had been conferred only on "women" in a domestic relationship. He also pointed out that there was no certificate issued to her under Section 7 of the Transgender Persons (Protection of Rights) Act, 2019, and therefore she could not be treated as a woman under the provisions of the Domestic Violence Act, 2005. Finally, he stated that in the absence of cogent evidence of the petitioner's income, the order of payment of ₹12,000 per month could not be justified..On the other hand, the respondent filed a medical certificate which certified that the respondent had undergone vaginoplasty and other procedures.Relying on the judgment of the Supreme Court in the case of National Legal Services Authority Vs. Union of India and Ors., she stated that the apex court recognized the right of transgender persons to decide their self-identified gender. Further, she argued that the petitioner's income exceeded ₹25,000 per day, and therefore, the direction to pay ₹12,000 per month was legal and proper..The Court observed that section 2(k) of the Transgender Persons (Protection of Rights) Act defines transgender persons and that irrespective of whether such persons have undergone reassignment surgery, including persons with intersex variations and other persons mentioned in the definition, Section 7 enables a person who has performed surgery to change gender to file an application with the District Magistrate for a change of gender..Further, relying on the judgment of the apex court in National Legal Services Authority Vs. Union of India and Ors., the Court noted that there was no doubt that transgender persons who have performed gender reassignment surgery could be considered women. Therefore, it held that the respondent, who had undergone gender reassignment surgery and had been living as a woman, was entitled to protection under the Domestic Violence Act, 2005, and could be considered an aggrieved person.Regarding the quantum of maintenance, the Court noted that the respondent had stated on oath that the petitioner earns close to ₹30,000 a day. In that light, the Court opined that the monthly maintenance of ₹12,000 was reasonable. .Therefore, the Court dismissed the appeal and directed the petitioner to clear arrears of maintenance within four weeks..The petitioner was represented by advocate Sushant S Prabhunne.The respondent was represented by advocates Vrushali Mainded, Shaheen Kapadia and Shrusthi Tupe.Assistant Public Prosecutor MG Patil represented the State..[Read Judgment]