The Allahabad High Court has ruled that Section 69 of the Bharatiya Nyaya Sanhita (BNS), which criminalises sexual relationships established through deceitful means, including a false promise of marriage, does not extend to transgender women under its interpretation of the provision.
Justice Arun Kumar Singh Deshwal made the observation while granting bail to a man accused of entering into a relationship with a transgender woman after allegedly promising to marry her.
The Court held that the term “woman” under Section 69 BNS refers to a female human being and does not include a transgender woman, even where the person has undergone sex reassignment surgery.
“The word ‘woman’ mentioned in Section 69 of BNS includes only female human being,” the Court observed.
Separate legal protection under transgender rights law
In its order, the Court referred to the Transgender Persons (Protection of Rights) Act, 2019, which recognises transgender persons as a distinct category under the law.
It explained that a person who undergoes sex reassignment surgery does not cease to be transgender for the purposes of the statutory definition, regardless of the sex assigned at birth or the gender affirmed through surgery.
However, the Court clarified that this interpretation does not leave transgender persons without legal recourse in cases of sexual abuse.
Section 18(d) of the 2019 Act specifically provides punishment for acts involving physical or sexual abuse of transgender persons, with imprisonment of up to two years, the Court noted.
The order also referred to a 2023 report of the Parliamentary Standing Committee on Home Affairs, which had recommended amendments to the BNS to bring transgender women within the scope of rape provisions. The Court observed that the recommendation had not been accepted by Parliament.
Relationship, alleged financial loss and refusal to marry
The case arose from a complaint registered by Bareilly police under Section 69 BNS. The complainant alleged that she had been in a relationship with the accused for more than one-and-a-half years after he promised to marry her.
According to the complaint, the accused subsequently refused to marry her after allegedly taking more than ₹5 lakh from her. She also alleged that members of his family had scolded her.
While seeking bail, the accused challenged the applicability of Section 69, arguing that the complainant had been assigned male at birth and had undergone vulval reconstruction surgery in April 2023.
The defence also relied on a medical board’s findings regarding her physical characteristics, including the absence of a uterus, to contend that the statutory provision could not be invoked.
The Court noted that the complainant had acknowledged being assigned male at birth and later undergoing sex reassignment surgery. It further observed that she had not formally applied for a change in her gender.
On this basis, the Court concluded that a prima facie case under Section 69 BNS was not made out and held that the accused was entitled to bail.
The ruling was delivered in Mohd Saakir @ Mohd Sakir v. State of Uttar Pradesh.
Advocate Mayuri Mehrotra assisted the Court as amicus curiae. Advocate Krishna Gopal represented the accused, while Additional Government Advocate Ram Kumar Verma appeared for the State.