Transgender Persons Cannot Invoke Section 69 Of BNS In False Promise Of Marriage Cases: Himachal Pradesh High Court

While explaining the actual mandate of Sec 69 and confirming the interim bail of an accused Justice Sandeep Sharma observed,

“Since under BNS, “woman” and “transgender” have been given different identity and have been defined independently, under Section 2 coupled with the fact that physical relationship inter-se victim prosecutrix and bail petitioner, if any, was developed prior to surgery of victim-prosecutrix, whereby she allegedly got her sex changed, there appears to be force in the claim of the bail petitioner that he could not have been booked under Section 69 of the BNS, rather he is required to be dealt with in terms of the under Section 18 (d) of the Act”.

Background of the Case:

The case arose from an FIR registered on July 18, 2024, at the Women Police Station in Baddi, District Solan. The victim, a transgender woman, alleged that she had met the accused, Bhupesh Thakur, during the COVID-19 lockdown through Facebook.

She had stated that despite revealing her transgender status early on, Thakur continuously promised to marry her. After the lockdown was lifted, the two traveled together, and he even applied "sindoor" (a symbol of marriage) on her forehead. However, Thakur later refused to marry her, and his family insisted that she undergo gender reassignment surgery.

After undergoing surgery at AIIMS Delhi, the victim discovered that Thakur's family had arranged his marriage to someone else, prompting her to file a complaint.

Subsequently the petitioner sought bail after the FIR was lodged under Section 69 of the BNS and Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019. Thakur had earlier been granted interim bail on August 14, 2024, which was now up for confirmation.

Senior Advocate Ajay Kochhar, representing the petitioner, argued that the case under Section 69 of the BNS was not applicable. He contended that Section 69 only applies to cases where a woman is deceived by a false promise of marriage, and as the prosecutrix had admitted in her statements to being transgender, she did not qualify as a "woman" under the statute. Kochhar further argued that there was no medical evidence to support the claim that the victim had undergone gender reassignment surgery.

The State, represented by Additional Advocate General Rajan Kahol, countered by stating that there was sufficient evidence to suggest that Thakur had been exploiting the victim despite knowing her transgender identity. He argued that the petitioner should not be granted leniency given the gravity of the offense and the emotional and physical harm caused to the victim.

Court's Observations and Legal Interpretation:

Justice Sharma examined the provisions of Section 69 of the BNS and the Transgender Persons (Protection of Rights) Act. He noted that Section 69 specifically penalizes deceitful promises of marriage made to a "woman," defined under Section 2(35) of the BNS as "a female human being of any age."

Since the prosecutrix had identified herself as transgender, the Court found merit in the petitioner's argument that the section could not be invoked in this case.

The Court also referred to Section 2(10) of the BNS, which defines “gender” to include male, female, and transgender persons. However, it noted that transgender individuals are recognized as a separate category and not as male or female, which further supported the petitioner's contention.

In discussing the application of the Transgender Persons (Protection of Rights) Act, the Court reviewed Section 18(d), which penalizes acts that harm or injure the life, safety, or well-being of a transgender person. While this section carries a maximum punishment of two years, the Court observed,

“.. This court finds that nothing has been adduced on record till date, suggestive of the fact that attempt to develop physical relationship, if any, by the petitioner with victim-prosecutrix was ever made after the alleged surgery, whereby victim-prosecutrix got her sex changed”.

The bench further remarked,

“Though the case at hand shall be decided by the court below in the totality of evidence collected on record by the prosecution, but keeping in view the aforesaid glaring aspect of the matter, there appears to be no justification for this court to send the bail petitioner in judicial custody, especially when nothing remains to be recovered from him.”.

Highlighting that bail is generally preferred over jail during the pre-trial phase, provided that the accused cooperates with the investigation and poses no risk of absconding, the Court made the interim bail order absolute while imposing several conditions, including cooperation with the investigation and regular court attendance.

Case Title: Bhupesh Thakur Vs State of Himachal Pradesh

Citation: 2024 LiveLaw (HP) 56

Click Here To Read/Download Judgment