Transgender Person To Be Considered Under DV Act After Sex Reassignment Surgery

The Bombay High court bench comprising Justice Amit Borkar recently observed that a transgender person can avail justice under the provisions of Domestic Violence Act after undergoing a sex reassignment surgery.

Background Facts:

Respondent who initially was Transgender, filed a proceeding under the provisions of the Domestic Violence Act, 2005 as a woman under the Domestic Violence Act. She converted her gender from Transgender to female by performing surgery on 12 June 2016 and got married to the petitioner.

Due to differences between the parties, the respondent filed an Application under the provision of the Domestic Violence Act, 2005. In the said proceedings respondent filed an application seeking interim maintenance. The Judicial Magistrate of First Class directed payment of Rs.12,000/- per month from the date of application. 

Aggrieved by the same, the petitioner filed an appeal before the learned Additional Sessions and the said appeal has been dismissed. Aggrieved thereby, the petitioner has filed the present Writ Petition.

Submissions on behalf of the petitioner:

The counsel on behalf of 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.

Submissions on behalf of the respondent:

Counsel on behalf of the respondent relied on the judgment of Apex Court in the Case of National Legal Services Authority Vs. Union of India and others which recognized the right of transgender persons to decide self-identified Transgender. It was further 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 undergoing Sex change surgery. It was 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.

Observations of the Court:

The court observed that 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 the word 'woman' occurring in the said provision. The word 'woman' controls the amplitude of section 2(a). The court noted that 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.

The court noted that-

“Domestic Violence Act 2005 is to provide more effective protection of the rights of the women guaranteed who are victims of violence of any kind that occurs within the family…. 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.”

In the light of the aforementioned, the court said 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.