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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Orissa HC: Live-in relationship by Same-sex couple is permissible under Domestic violence Act and woman in the said relationship is entitled to get the protection of the said Act

Thus, taking into consideration the aforesaid authoritative

pronouncements of the Hon’ble Supreme Court, there is hardly any scope to take a view other than holding that the petitioner has the right of self-determination of sex/gender and also he has the right to have a live-in relationship with a person of

his choice even though such person may belong to the same gender as the  petitioner.

Therefore, we allow the writ application (criminal) and direct that the petitioner and the daughter of the Opposite Party No.5 have the right to decide their sexual preferences including the right to stay as live-in partners.  The lady shall have all the rights of a woman as enshrined under the Protection of Women from Domestic Violence Act, 2005.

ORISSA HIGH COURT: CUTTACK

Writ Petition (Criminal) No. 57 of 2020

Chinmayee Jena @ Sonu Krishna Jena Vs State of Odisha 

P R E S E N T

 MR. JUSTICE S.K.MISHRA

AND

 MISS JUSTICE SAVITRI RATHO

Date of Judgment – 24.08.2020

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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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