Saturday, 23 January 2021

Whether the court can hold accused guilty of sexual harassment if the transgender victim views herself as a woman?

 Finally the petitioner's counsel contended that admittedly the

defacto complainant is a transgender person and that therefore it is not

open to the prosecution to invoke the provisions of Tamil Nadu

Prohibition of Harassment of Women Act, 2002.

7.In response thereto, the learned Government Advocate (Crl.

Side) drew my attention to the decision of this Court made in Arunkumar

Srija Vs. Inspector General of Registration. This Court following the

judgment of the Hon'ble Supreme Court report in (2014) 5 SCC 483

(National Legal Services Authority Vs. Union of India) had held that it is

entirely for the transgender person to self-identify her gender and that this

self determination cannot be questioned by others.

8.In the case of hand, the defacto complainant/Neka views

herself as a woman. Therefore, the prosecution rightly accepted the said self identification and registered the case under Tamil Nadu Prohibition of

Harassment of Women Act, 2002. Therefore, I find no merit in the

contention of the petitioner's counsel that invocation of Tamil Nadu

Prohibition of Harassment of Women Act, 2002, is not maintainable.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 28.10.2020

CORAM:

 MR.JUSTICE G.R.SWAMINATHAN

Crl.O.P(MD)No.11848 of 2020

and

Crl.M.P.(MD)Nos.5454 and 5457 of 2020

M.Srinivasan  Vs. State through The Inspector of Police.


Heard the learned counsel appearing for the petitioner and the

learned Government Advocate (Crl. Side) appearing for the first

respondent.

2.The petitioner is figuring as an accused in C.C.No.7 of 2020

on the file of the Judicial Magistrate, Thirumangalam, for the offences

under Sections 294(b) and 506(i) of I.P.C. and Section 4 of Tamil Nadu

Prohibition of Harassment of Women Act, 2002. The petitioner is the

owner of a lodge. It appears that the second respondent had stayed in one

of the rooms of the lodge owned by the petitioner herein.

3.The case of the defacto complainant is that on the occurrence

date, the petitioner had barged into her room and when the same was

questioned, the petitioner abused her in filthy language.

4.The learned counsel appearing for the petitioner reiterated all

the contentions set out in the memorandum of grounds.


5.But then, as rightly pointed out by the learned Government

Advocate (Crl. Side), they are essentially factual in nature and this Court

while exercising its jurisdiction under Section 482 of Cr.P.C., may not be

in a position to go into the same.

6.Finally the petitioner's counsel contended that admittedly the

defacto complainant is a transgender person and that therefore it is not

open to the prosecution to invoke the provisions of Tamil Nadu

Prohibition of Harassment of Women Act, 2002.

7.In response thereto, the learned Government Advocate (Crl.

Side) drew my attention to the decision of this Court made in Arunkumar

Srija Vs. Inspector General of Registration. This Court following the

judgment of the Hon'ble Supreme Court report in (2014) 5 SCC 483

(National Legal Services Authority Vs. Union of India) had held that it is

entirely for the transgender person to self-identify her gender and that this

self determination cannot be questioned by others.

8.In the case of hand, the defacto complainant/Neka views

herself as a woman. Therefore, the prosecution rightly accepted the said self identification and registered the case under Tamil Nadu Prohibition of

Harassment of Women Act, 2002. Therefore, I find no merit in the

contention of the petitioner's counsel that invocation of Tamil Nadu

Prohibition of Harassment of Women Act, 2002, is not maintainable.

However, all the other defences of the petitioner are left open.

Considering the facts and circumstances of the case, the personal

appearance of the petitioner before the Court below is also dispensed with.

However, the petitioner will have to be represented by his counsel. If the

counsel also fails to appear, the benefit of this order will get automatically

vacated. The criminal original petition is dismissed. I make it clear that I

have not gone into the merits. Excepting the aforesaid legal contention, all

the other defences of the petitioner can very well be urged by the

petitioner before the Court below. Consequently, connected miscellaneous

petitions are closed.

28.10.2020


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