Saturday 1 April 2023

Can a transgender person who underwent surgery to change gender to female file a complaint under the Domestic Violence Act?

2(a). The question as to whether a person who has undergone a

gender change operation can be termed as a ‘woman’ is no longer res-integra in view of the authoritative pronouncement of the Apex Court in the Case of National Legal Services Authorities (supra), wherein the apex Court in paragraph 105 held as under:-

105. If person has changed his/her sex in tune with

his/her gender characteristics and perception which has

become possible because of the advancement in medical

science, and when that is permitted by in medical ethics

with no legal embargo, we do not find any impediment,

legal or otherwise, in giving due recognition to the gender

identity based on the reassign sex after undergoing SRS.


11. On perusal of paragraphs 105 and 129, there is no manner

of doubt that transgender persons or either a male or female who

has performed a sex change operation are entitled to gender to

their choice. The object and purpose of the provisions of the

Domestic Violence Act 2005 is to provide more effective protection

of the right of the women guaranteed who is victims of violence of

any kind that occurs within the family. 

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. It is, therefore, held that a person who has exercised his right to decide the self-identified gender of women is an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act, 2005.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.4037 OF 2021

Vithal Manik Khatri  V/s. Sagar Sanjay Kamble @ Sakshi Vithal

Khatri and Anr 

CORAM : AMIT BORKAR, J.

DATED : MARCH 16, 2023.

Citation: 2023 Lawweb (Bom HC ) 15.


1. The challenge in this petition is to the order dated 5th

October 2021 passed by learned Additional Sessions Judge,

Baramati, in Criminal Appeal No. 75 of 2019 confirming the

Judgment and Order dated 11th November 2019 passed by Judicial

Magistrate First Class, Baramati in Miscellaneous Application

No.573 of 2018.

2. Respondent No.1, who initially was Transgender, filed a

proceeding under the provisions of the Domestic Violence Act,

2005 as a woman under the Domestic Violence Act. According to

the case of respondent No.1, she converted her gender from

Transgender to female by performing surgery on 1st June 2016. On

21st July 2016, there was a marriage between the petitioner and


respondent. Due to differences between the parties, the respondent

filed Criminal Miscellaneous Application No.573 of 2018 under the

provision of the Domestic Violence Act, 2005. In the said

proceedings respondent filed an application seeking interim

maintenance. The Judicial Magistrate First Class, Baramati, by

order dated 11th November 2019, directed payment of Rs.12,000/-

per month from the date of application. Aggrieved thereby, the

petitioner filed an appeal before the learned Additional Sessions

Judge, Baramati, by the impugned Judgment and Order, the said

appeal has been dismissed. Aggrieved thereby, the petitioner has

filed the present Writ Petition.

3. Learned advocate for the petitioner submitted that the

respondent does not fall within the definition of aggrieved person

as such right has been conferred on "women" in a domestic

relationship. Additionally, it is submitted that there is no certificate

issued to her under Section 7 of the Transgender Persons

(Protection of Rights) Act, 2019, and therefore she cannot be

treated as a woman under the provisions of the Domestic Violence

Act, 2005. Finally, he submitted that in the absence of cogent

evidence of the petitioners' income, the order of payment of

Rs.12,000/- per month could not be justified.

4. Learned advocate for the respondent has filed a medical

certificate of Doctor and in that certificate held as under:-

This is to certify that Ms. Sakshi Vitthal Khatri, Age-24 yrs,

female has been appears for vaginoplasty (Net vagiana

creation by penile in versien technique with penile

amptutation) urethroplasty & Bilateral orchidetomy in

sicinovate layer & Cosmetic surgery center.


5. Per contra, the learned advocate for the respondent relying

on the judgment of Apex Court in the Case of National Legal

Services Authority Vs. Union of India and others, in Writ Petition

(Civil) No.400 of 2012 dated 15th April 2014, submitted that the

Apex Court, by the said judgment, recognized the right of

transgender persons to decide self-identified Transgender. Inviting

the attention of this Court in paragraph 105 of the said judgment,

it is submitted that the Apex Court has recognized the right of a

person who has changed his/her sex in tune with his/her gender

characteristics and perception can be granted due recognition to

the gender identity based on the reassigned sex after under

undergoing SRS. She also submitted that the petitioner's income

exceeds Rs. 25,000/- per day; therefore, the direction to pay

Rs.12,000/- is legal and proper.

6. Rival contentions call for consideration.

7. The issue involved is as to whether a transgender person

who converts himself into a woman by performing surgery can be

termed as an aggrieved person within the meaning of Section 2(a)

of the Domestic Violence Act, 2005. To decide the question,

relevant provisions of the statute need to be noted which are as

under:-

2.(a)“aggrieved person” means any woman who is, or has

been, in a domestic relationship with the respondent and

who alleges to have been subjected to any act of domestic

violence by the respondent;

2.(f) “domestic relationship” means a relationship between

two persons who live or have, at any point of time, lived

together in a shared household, when they are related by

consanguinity, marriage, or through a relationship in the

nature of marriage, adoption or are family members living

together as a joint family;

2.(g) “domestic violence” has the same meaning as assigned

to it in section 3;

23. Power to grant interim and ex parte orders. —(1) In

any proceeding before him under this Act, the Magistrate

may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application

prima facie discloses that the respondent is committing,

or has committed an act of domestic violence or that there

is a likelihood that the respondent may commit an act of

domestic violence, he may grant an exparte order on the

basis of the affidavit in such form, as may be prescribed,

of the aggrieved person under section 18, section 19,

section 20, section 21 or, as the case may be, section

against the respondent.

Section 2(k) of Transgender Persons (Protection of

Rights) Act, 2019.

Section 2(k) “transgender person” means a person whose

gender does not match with the gender assigned to that

person at birth and includes trans-man or trans-woman

(whether or not such person has undergone Sex

Reassignment surgery or hormone therapy or laser

therapy or such other therapy), person with intersex

variations, genderqueer and person having such sociocultural

identities as kinner, hijra, aravani and jogta.

Section 7 of Transgender Persons (Protection of Rights)

Act, 2019.

7. Change to gender—(I) After the issue of a certificate

under sub-section (I) of section 6, if a transgender person

undergoes surgery to change gender either as a male or

female, such person may make an application, along with

a certificate issued to that effect by the Medical

Superintendent or Chief Medical Officer of the medical

institution in which that person has undergone surgery, to

the District Magistrate for revised certificate, in such form

and manner as may be prescribed.

(2) The District Magistrate shall, on receipt of an

application along with the certificate issued by the

Medical Superintendent or Chief Medical Officer, and on

being satisfied with the correctness of such certificate,

issue a certificate indicating change in gender in such

form and manner and within such time, as may be

prescribed.

(3) The person who has been issued a certificate of

identity under section 6 or a revised certificate under subsection

(2) shall be entitled to change the first name in

the birth certificate and all other official documents

relating to the identity of such person.

Provided that such change in gender and the

issue of revised certificate under sub-section (2) shall not

affect the rights and entitlements of such person under

this Act.

8. Section 2(a) of the Domestic Violence Act, 2005 refers to a

woman who has or has been in a domestic relationship with the

respondent. Section 2(f) of the Act is gender neutral, which

includes persons irrespective of their sexual preferences. Section

2(g) assigns the meaning of Domestic Violence to the provision

under Section 3 of the Act. Section 23 of the Domestic Violence

Act, 2005 confers a right of aggrieved persons to claim

maintenance. Section 2(k) of Transgender Persons (Protection of

Rights) Act, 2019 defines transgender persons. Irrespective of

whether such persons have undergone sex/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 change of such gender.


9. To consider the status of the respondent as an ‘aggrieved

person’ under Section 2(a) of the Domestic Violence Act, 2005, it is

necessary to understand word ‘woman’ occurring in the said

provision. The word ‘woman’ controls the amplitude of section

2(a). The question as to whether a person who has undergone a

gender change operation can be termed as a ‘woman’ is no longer

res-integra in view of the authoritative pronouncement of the Apex

Court in the Case of National Legal Services Authorities (supra),

wherein the apex Court in paragraph 105 held as under:-

105. If person has changed his/her sex in tune with

his/her gender characteristics and perception which has

become possible because of the advancement in medical

science, and when that is permitted by in medical ethics

with no legal embargo, we do not find any impediment,

legal or otherwise, in giving due recognition to the gender

identity based on the reassign sex after undergoing SRS.

10. While concluding the judgment, the Apex Court in paragraph

129 clause 2 held as under :-

129. We, therefore, declare:

……..

(2) Transgender persons’ right to decide their selfidentified

gender is also upheld and the Centre and

State Governments are directed to grant legal

recognition of their gender identity such as male,

female or as third gender.

…….

11. On perusal of paragraphs 105 and 129, there is no manner

of doubt that transgender persons or either a male or female who

has performed a sex change operation are entitled to gender to

their choice. The object and purpose of the provisions of the


Domestic Violence Act 2005 is to provide more effective protection

of the right of the women guaranteed who is victims of violence of

any kind that occurs within the family. Domestic violence has been

recognized human rights issue and a serious deterrent to

development - The Vienna Accord of 1994, the Beijing Declaration,

and the Platform for Action (1995). The need to pass legislation

like the protection of women from domestic violence Act was

found necessary as the existing civil law was inadequate to address

a woman who was and is subjected to cruelty by their husband and

their family relatives in recognition of their fundamental rights

guaranteed under Article 14, 15 and 21 of the Constitution of

India. Therefore, while interpreting the definition of aggrieved

persons in tune with the object and purpose of the Act, such

definition needs to be interpreted with the broadest possible terms.

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. It is, therefore, held that a person

who has exercised his right to decide the self-identified gender of

women is an aggrieved person within the meaning of Section 2(a)

of the Domestic Violence Act, 2005.

12. Regarding the amount quantum of maintenance, the

respondent has stated on oath that the petitioner has Sweet Shops

and Snacks Centre, and he is getting income of Rs. 25,000/- to

Rs.30,000/- per day. They also have immovable properties in

Baramati. Based on such statements and material on record, the

courts below exercised their discretion to grant an amount of

Rs.12,000/- per month, which in my opinion, is not unreasonable.

13. The petitioner shall clear arrears of maintenance within a

period of Four weeks from today.

14. For these reasons, there is no miscarriage of justice. The writ

petition is, therefore, stands dismissed. No costs.

(AMIT BORKAR, J.)


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