Himachal Pradesh HC : Transgender Persons Cannot Invoke Section 69 Of BNS In False Promise Of Marriage Cases

 As per definition pronoun "he" and its derivatives are used of any person, whether male, female or transgender. For the first time, word "transgender" has been included in the definition of "gender", meaning thereby, transgenders cannot claim themselves to be male or female as they are given separate identity. {Para 10}

11. Section 2(35) of BNS defines "Woman" as under:

"2 (35) "woman" means a female human being of any age."

12. As per aforesaid provision of law, woman means female human being of any age. Since under BNS, "woman" and "transgender" have been given different identity and have been defined independently, under Section 2 coupled with the fact that physical relationship inter-se victim- prosecutrix and bail petitioner, if any, was developed prior to surgery of victim-prosecutrix, whereby she allegedly got her sex changed, there appears to be force in the claim of the bail petitioner that he could not have been booked under Section 69 of the BNS.

 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MP(M) No. 1798 of 2024

Decided On: 30.08.2024

Bhupesh Thakur Vs. State of Himachal Pradesh

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Citation: MANU/HP/2423/2024.

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Transformative Constitutionalism: A Catalyst for Social Change in India

 Transformative constitutionalism is an evolving concept that underscores the role of a constitution as a powerful instrument for social change, particularly in societies grappling with historical injustices and inequalities. In the context of India, this approach emphasizes not just the legalistic interpretation of constitutional provisions but also their potential to foster equality, dignity, and justice. The Indian Supreme Court has played a pivotal role in this transformative journey through various landmark judgments that reflect the principles of transformative constitutionalism.

Key Features of Transformative Constitutionalism

Transformative constitutionalism is characterized by several key features:

1. Promotion of Social Change: At its core, this concept aims to engender societal transformation by embedding values such as liberty, equality, fraternity, and dignity within the legal framework.

2. Judicial Activism: The judiciary is crucial in interpreting constitutional provisions in ways that promote these transformative ideals, often transcending mere legal formalism to address broader social issues.

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18 Important Changes Introduced by Bharatiya Nyaya Sanhita{BNS}{NEW IPC}

1)  Community Service As Form Of Punishment

Community service has been introduced as a form of punishment under Section 4, although it has not been defined what community service entails. For offences such as attempting suicide to compel or restrain the exercise of lawful power, defamation, misconduct in public by a drunken person, and failure to appear at the specified place and time as required by a proclamation published under sub-section (1) of section 84 of the BNS, 2023, community service can be awarded in addition to the prescribed punishment.

2) Offences Against Woman and Child Of Sexual Offences-  The new BNS adds Chapter V naming “Of Offences Against Woman and Child Of Sexual Offences”. All the offences relating to woman and child have been placed under one chapter in the beginning of the Code, which was earlier spread under various chapters and parts.

3) Marital Rape With Minor Wife Is Offence

As per exception of Rape which is Section 63 of BNS, sexual intercourse or sexual acts by a man with his own wife, where the wife is not under eighteen years of age, would not be rape. However, under IPC, the age of wife to not to constitute rape was “fifteen years”.

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Important highlights of SC Judgment Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023 INSC 920)

 1. No Fundamental Right To Marry.

The Supreme Court unanimously held that there was not fundamental, unequivocal right to marry in India.

2. On Striking Down The Special Marriage Act & Allied Laws

Another point on which the entire bench agreed was to not strike or read the Special Marriage Act (SMA) and its allied laws down.

3. On Rights Of Transgender Persons To Marry

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Bombay HC: Transgender Person Who Underwent Surgery To Change Gender To Female Can File Complaint Under Domestic Violence Act

 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. {Para 11}

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4037 of 2021

Decided On: 16.03.2023

Vithal Manik Khatri Vs. Sagar Sanjay Kamble and Ors.

Hon'ble Judges/Coram:

Amit B. Borkar, J.

Citation:  MANU/MH/1221/2023.

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Case Note: Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023 INSC 920)

Findings of the court

Dr. D.Y. Chandrachud, C.J.I.

(i) The following were conclusions of this court:

a. This Court was vested with the authority to hear this case. Under Article 32, this Court had the power to issue directions, orders, or writs for the enforcement of the rights in Part III.

b. Queerness is a natural phenomenon known to India since ancient times. It was not urban or elite. c. There was no universal conception of the institution of marriage, nor is it static. under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage d. Marriage has attained significance as a legal institution largely because of Regulation by the state. By recognizing a relationship in the form of marriage, the state grants material benefits exclusive to marriage e. The State has an interest in regulating the intimate zone to democratize personal relationship f. The issue of whether the Constitution recognizes the right to marry did not arise before this Court in Justice KS Puttaswamy, Shafin Jahan, and Shakti Vahini

g. The Constitution does not expressly recognize a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty

h. This Court could not either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This Court could not read words into the provisions of the SMA and provisions of other allied laws such as the ISA and the HSA because that would amount to judicial legislation. The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain

i. The freedom of all persons including queer couples to enter into a union is protected by Part III of the Constitution. The failure of the state to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The state has an obligation to recognize such unions and grant them benefit under law

j. In Article 15(1), the word sex must be read to include sexual orientation not only because of the causal relationship between homophobia and sexism but also because the word sex is used as a marker of identity which cannot be read independent of the social and historical context

k. The right to enter into a union could not be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom was available to all persons regardless of gender identity or sexual orientation

l. The decisions in Navtej and Justice KS Puttaswamy recognize the right of queer couples to exercise the choice to enter into a union. This relationship is protected from external threat. Discrimination on the basis of sexual orientation will violate Article 15

m. Transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage

n. Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage

o. The state must enable the LGBTQ community to exercise its rights under the Constitution. Queer persons have the right to freedom from coercion from their natal families, agencies of the state including the police, and other persons

p. Unmarried couples (including queer couples) can jointly adopt a child. Regulation 5(3) of the Adoption Regulations was ultra vires the JJ Act, Articles 14, and 15. Regulation 5(3) was read down to exclude the word marital. The reference to a couple in Regulation 5 includes both married and unmarried couples as well as queer couples. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together was equally applicable to unmarried couples who seek to jointly adopt a child. However, while framing Regulations, the state may impose conditions which will subserve the best interest and welfare of the child in terms of the exposition in the judgment

q. The CARA Circular disproportionately impacts the queer community and was violative of Article 15 r. The Union Government, State Governments, and Governments of Union Territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law and s. This court record the assurance of the Solicitor General that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who were in unions. The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community. The Committee shall before finalizing its decisions conduct wide stakeholder consultation amongst persons belonging to the queer community, including persons belonging to marginalized groups and with the governments of the States and Union Territories The Committee shall in terms of the exposition in this judgment consider the following: (1). Enabling partners in a queer relationship (i) to be treated as a part of the same family for the purposes of a ration card; and (ii) to have the facility of a joint bank account with the option to name the partner as a nominee, in case of death (2). In terms of the decision in Common Cause v. Union of India, as modified by Common Cause v. Union of India, medical practitioners have a duty to consult family or next of kin or next friend, in the event patients who are terminally ill have not executed an Advance Directive. Parties in a union may be considered family for this purpose iii. Jail visitation rights and the right to access the body of the deceased partner and arrange the last rites and iv. Legal consequences such as succession rights, maintenance, financial benefits such as under the Income Tax Act 1961, rights flowing from employment such as gratuity and family pension and insurance.

The report of the Committee chaired by the Cabinet Secretary shall be implemented at the administrative level by the Union Government and the governments of the States and Union Territories. [340]

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 1011 of 2022, Writ Petition (Civil) No. 93 of 2023,

Decided On: 17.10.2023

Supriyo and Ors. Vs. Union of India (UOI)

Hon'ble Judges/Coram: Dr. D.Y. Chandrachud, C.J.I., Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and Pamidighantam Sri Narasimha, JJ.

Citation: MANU/SC/1155/2023,2023/INSC/920.

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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.

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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.

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Whether court directing wife to undergo gender detection test amounts to a violation of her right to privacy?

This petition has been filed by the petitioner/wife under Article 227 of the Constitution of India against the orders dated 16.8.2018 as also order dated 25.9.2018 passed in Case No. 112-A/2017 by the Principal Judge, Family Court, Jabalpur, whereby the learned Judge, by accepting an application filed by the respondent husband under Section 151 of CPC has directed that the gender of the petitioner be verified by a Government lady doctor and vide order dated 25.9.2018, the petitioner is directed to keep herself available for medical examination on 10.10.2018 before the Dean, Netaji Subhash Chandra Bose, Medical College, Jabalpur.

This Court is of the considered opinion that if any evidence having a nexus with the lis between the parties, should be allowed to be produced. In a matrimonial dispute, if gender of one of the parties is questioned by the other party, it assumes importance and the party raising such issue also has a right to adduce the evidence in this behalf and the other party, to rebut the same. This Court is conscious of the fact that one's sex/gender is one's own business, but when it comes to marriage, the other partner's rights are also closely attached with the same, as it assumes importance to maintain a healthy and peaceful married life, and since he or she also has a fundamental right to life under Article 21 of the Constitution of India, the rights of both the parties are evened out. In such circumstances, the plea of violation of privacy or any fundamental right is not tenable.

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

Misc. Petition No. 4820 of 2018

Decided On: 04.10.2019

 Surbhi Trivedi  Vs.  Gaurav Trivedi

Hon'ble Judges/Coram:

Subodh Abhyankar, J.

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Supreme Court decriminalised all consensual sex among adults in private including homosexual sex

We hold and declare that:

(i) Section 377 of the Penal Code, in so far as it criminalises consensual sexual conduct between adults of the same sex, is unconstitutional;

(ii) Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution;

(iii) The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation;

(iv) Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law; and

(v) The decision in Koushal stands overruled.

IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 76 of 2016, 

Decided On: 06.09.2018

 Navtej Singh Johar  Vs. Union of India (UOI) and Ors.

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Whether man and transwoman can perform marriage under Hindu Marriage Act?

 A marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same. By holding so, this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart.

 In the case on hand, the second petitioner herein has chosen to express her gender identity as that of a woman. As held by the Hon'ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self determination of the second petitioner herein.

10. The expression "bride" occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning. As noted in Justice G.P. Singh's Principles of Statutory Interpretation, the court is free to apply the current meaning of a statute to present day conditions. A statute must be interpreted in the light of the legal system as it exists today.

 Seen in the light of the march of law, the expression "bride' occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include within its meaning not only a woman but also a transwoman. It would also include an intersex person/transgender person who identifies herself as a woman. The only consideration is how the person perceives herself.

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

WP (MD) No. 4125 of 2019 and WMP (MD) No. 3220 of 2019

Decided On: 22.04.2019

Arunkumar Vs.  The Inspector General of Registration and Ors.

Hon'ble Judges/Coram:

G.R. Swaminathan, J.

Citation: AIR 2019 Mad 265

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