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Journalism of Courage
The Bombay High Court recently held that a transgender person who identifies as a woman by undergoing gender reassignment surgery is an aggrieved person under the Domestic Violence Act, 2005, and can seek relief under the same.
The Court said there was no “miscarriage of justice” in a trial court order that directed a man to pay maintenance to his estranged wife, who was initially a transgender person, but later underwent a sex change surgery.
A single-judge bench of Justice Amit Borkar passed the order in a plea filed by a man who challenged the October 5, 2021 order of the sessions court, which upheld the November 2019 judgment of the Magistrate court that had directed him to pay Rs. 12,000 as monthly maintenance to his estranged wife.
The wife sought relief under the DV Act as a ‘woman’ against her estranged husband. She underwen a sex change surgery on June 1, 2016, and got married to the man on July 21, 2016. Due to differences between the couple, the wife filed a plea against him seeking monthly maintenance, which was granted by the magistrate in November 2019. The aggrieved man filed an appeal before the sessions court against the same, which eventually dismissed it. This prompted him to file a writ plea in the HC.
Advocate Sushant S Prabhunne, appearing for the man, argued that his estranged wife did not fall within the definition of an “aggrieved person” as the right has been conferred on “women” in a domestic relationship. He also argued that no certificate under Section 7 of the Transgender Persons (Protection of Rights) Act, 2019 was issued to the respondent, and therefore could not be treated as a “woman” under the DV Act.
However, advocate Vrushali Mainded, representing the wife, argued that after the surgery her client identified as female.
The judge added that “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 the gender of their choice.”
The court noted that the object and purpose of the provisions of the 2005 law are 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.”
Justice Borkar said that the need to pass such a law for the protection of women was because the “existing law was inadequate to address a woman who was and is subjected to cruelty by their husband and their family in recognition of their fundamental rights guaranteed under Article 14, 15 and 21 of the Constitution.”
The judge observed, “The word ‘woman’ in section 2(a) of the Act 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.”
He went on to note, “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.”
The HC directed the husband to clear all maintenance arrears within four weeks and dismissed the husband’s plea.
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