The Supreme Court is set to examine whether a transgender woman who has undergone sex re-assignment surgery can be an “aggrieved person” under the Domestic Violence Act, 2005 and has the right to seek interim maintenance in a domestic violence case. The matter has been listed for hearing in 2025. A bench of Justice Vikram Nath and Justice Rajesh Bindal granted leave in an appeal filed...
The Supreme Court is set to examine whether a transgender woman who has undergone sex re-assignment surgery can be an “aggrieved person” under the Domestic Violence Act, 2005 and has the right to seek interim maintenance in a domestic violence case. The matter has been listed for hearing in 2025.
A bench of Justice Vikram Nath and Justice Rajesh Bindal granted leave in an appeal filed against the Bombay High Court ruling that had held that a transgender person who has undergone surgery to change gender to female can file complaint under the Domestic Violence Act.
In March 2023, the Bombay High Court had dismissed a man’s petition challenging maintenance awarded to his wife, a trans-woman, observing –
“…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. 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 High Court had said that the term 'aggrieved person' under section 2(a) of the Protection of Women from Domestic Violence Act, 2005 has to be given a broad interpretation as the purpose of the Act is to protect women from domestic violence.
“The object and purpose of the provisions of the Domestic Violence Act 2005 is to provide more effective protection of the right of the women guaranteed who is victims of violence of any kind that occurs within the family…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”, the High Court had held. Against this ruling the man has approached the Apex Court.
The Appellant married the Respondent, a transgender woman who had a sex reassignment surgery, in 2016. The Respondent filed a case under the DV Act and sought interim maintenance. The Judicial Magistrate First Class awarded her maintenance and the Additional Sessions Judge upheld it in appeal. Subsequently, the Appellant approached the High Court.
The Appellant had contended that the Respondent did not fall within the definition of 'aggrieved person' as it only includes women in a domestic relationship. He further contended that the Respondent does not have a certificate under Section 7 of the Transgender Persons (Protection of Rights) Act, 2019 and hence cannot be treated as a woman under the DV Act.
The question before the High Court was whether a transgender woman who has undergone sex reassignment surgery can be considered an “aggrieved person” under section 2(a) of the DV Act.
The High Court noted that section 2(f) of the DV Act which defines a domestic relationship is gender neutral.
The High Court also noted that Section 2(k) of Transgender Persons (Protection of Rights) Act defines transgender persons irrespective of whether they have undergone sex reassignment surgery. Section 7 of the Act enables a transgender person who has undergone the surgery to file application before the magistrate to change his/her gender.
The High Court said that the word “woman” controls the amplitude of section 2(a) of the DV Act. The court relied on the ruling in National Legal Services Authority v. Union of India and said that transgender persons who have undergone sex reassignment surgery are entitled to the gender of their choice.
The High Court also said that the purpose of DV Act is to provide effective protection to women who are victims of domestic violence. Thus, the definition of aggrieved persons needs to be interpreted in the broadest possible terms. The High Court said that the word woman in section 2(a) is no more limited to the binary of women and men and includes the transgender persons who have undergone sex reassignment surgery.
“The word ‘woman’ in section 2(a) 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”, the High Court had held.
The Appellant has contended before the Apex Court that there is no certificate issued to the Respondent by the competent authority for changing the gender identity of Respondent to a ‘Woman’, and hence the Respondent cannot be treated as a woman under the provisions of the Domestic Violence Act, 2005.It has also been argued in the appeal that the provisions of the Domestic Violence Act, 2005 are gender specific and the legislature has not till date expanded the scope of the legislation.
Case Title: Vithal Manik Khatri V. Sagar Sanjay Kamble, Special Leave Petition (Criminal) Diary No(s). 34425/2023