Transgender Person Who Underwent Surgery To Change Gender To Female Can File Complaint Under Domestic Violence Act: Bombay High Court

Justice Amit Borkar 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 court 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 court held.

The petitioner 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.

Hence the petitioner approached the High Court.

The petitioner contended that the respondent does 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 respondent contended the Apex Court has recognised the right of a transgender person who has changed his/her sex according to his/her gender identity to be granted recognition to the gender identity based on the reassigned sex.

The question before the court was whether a transgender woman who undergoes sex reassignment surgery can be considered an “aggrieved person” under section 2(a) of the DV Act.

The court noted that section 2(f) of the DV Act which defines a domestic relationship is gender neutral.

The court 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 court said that the word “woman” controls the amplitude of section 2(a) of the DV Act. The court relied on National Legal Services Authority v. Union of India and said that transgender persons who have undergone sex reassignment surgery are entitled to gender of their choice.

The court 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, it said.

The 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 court said.

Case no. – Writ Petition No. 4037 of 2021

Case Title – Vithal Manik Khatri v. Sagar Sanjay Kamble @ Sakshi Vithal Khatri and Anr.

Citation: 2023 LiveLaw (Bom) 175