Can a trans woman invoke the Domestic Violence Act? SC to consider

Who is an “aggrieved person”?

Section 2(a) of the Domestic Violence Act, 2005 defines an “aggrieved person” as “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”.

A “domestic relationship” under Section 2(f) of the Act 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.”

The 2005 Act was passed with the objective of providing for “more effective protection of the rights of women guaranteed under the Constitution”. The Act has provisions for monetary relief which can be paid to an aggrieved person by the respondent, upon the Magistrate’s order, “to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence.”

In the present case a trans woman who underwent sex reassignment surgery in June 2016, filed a plea for interim maintenance under the DV Act, contending that they had “converted their gender from transgender to female”, fell under the definition of “aggrieved person”.

What was this case?

The trans woman and her male partner tied the knot in July, 2016. However, due to differences, the trans woman filed a plea under the 2005 Act, seeking interim maintenance.

Following this on November 11, 2019, the trial court directed that a monthly payment of Rs.12,000 shall be made to the trans woman. After the husband’s appeal against the November 2019 order was dismissed by the court, he approached the Bombay High Court for relief.

Before the Bombay HC, the petitioner-husband argued that the trans person didn’t fall within the definition of “aggrieved person” as such a right was conferred on “women” in domestic relationships. Additionally, he claimed that no certificate was issued to her under Section 7 of the Transgender Persons (Protection of Rights) Act, 2019, and therefore she could not be treated as a woman under the DV Act.

What is the process for a transgender person to change their gender?

The 2019 Act allows for the recognition of the identity of transgender persons. It says, “A transgender person shall have a right to be recognised as such, in accordance with the provisions of this Act,” adding that transgenders shall also have a “right to self-perceived gender identity”.

Section 5 of the Act also allows transgenders to file applications before the District Magistrate for issuing a “certificate of identity” as a transgender person, accompanied by documents, in the form and manner prescribed.

Once a certificate of identity is issued to the transgender person, they can also seek to change their gender, as per the process outlined in Section 7. Section 7 states that if a trans person undergoes surgery to change their gender, they can make an application to the DM, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which they underwent surgery, for a “revised certificate”. Upon receiving this certificate, the trans person is entitled to change the first name on their birth certificate and all other official documents relating to their identity.

However, in the present case, the trans-woman’s submitted only her medical certificate, confirming the occurrence of her sex reassignment surgery before the HC. Relying on the top court’s 2014 ruling in NALSA vs UOI, her counsel said that SC has recognized the rights of persons who change their sex in tune with their gender characteristics and thus, their new gender identity can also be granted recognition.

What did the Bombay HC rule?

On March 16, a single-judge bench of Justice Amit Borkar said that although the term “domestic relationship” was defined in gender-neutral terms under the DV Act, the word ‘woman’ was used in Section 2 (a) to define an “aggrieved person”.

However, the court took a broader approach while interpreting the term “woman” and said, “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”.

Referring to the top court’s 2014 ruling in NALSA, the court said, “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.”

Underlining that the need to pass laws like the DV Act stemmed from the inadequacy in existing civil laws for women being subjected to cruelty by their husbands and family relatives, the court said that the term aggrieved person “needs to be interpreted with the broadest possible terms”.

Holding 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 court also directed the husband to pay up the maintenance amount, as directed by the sessions court earlier.