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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