New Delhi: In a first-of-its-kind order, the Andhra Pradesh High Court has ruled that a transgender, who is in a heterosexual marriage, shall be entitled to protection under Section 498-A IPC—a provision which describes and punishes cruelty meted out to a married woman by her husband or his relatives.
In its 28-page ruling, a bench of Justice Venkata Jyothirmai Pratapa ruled, “This Court makes it clear that, a trans-woman/transgender, who is in a heterosexual relationship in marriage, shall have protection under Section 498-A IPC.”
Rejecting the argument that a trans-woman cannot be seen as a ‘woman’ merely because she is incapable of biological reproduction, the court said that such a narrow view of womanhood undermines the very spirit of the Constitution, which upholds the dignity, identity, and equality of all individuals, irrespective of their gender identity.
Although born biologically male, 24-year-old Pokala Sabhana, later transitioned to a female identity and became a woman. While she was residing in Chennai, Tamil Nadu, she became acquainted with a man, who she went on to marry in January, 2019.
The man agreed to the marriage, despite knowing that Sabhana was transgender, and the wedding took place according to Hindu rites and customs in Hyderabad. At the time of the wedding, Sabhana’s parents gave her gold, silver worth 500 grams and household items worth Rs 2 lakh.
Nearly two months after the wedding, however, the husband went to his parents’ house and never returned. Sabhana failed in her attempts to contact him. Either his phone was switched off, or his parents would claim he was out of town.
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How this case reached the HC
In April 2019, however, her husband sent her a message threatening her with death, which led her to file a complaint against him under Section 498A, read with Sections 34 IPC and 4 of the Dowry Prohibition Act, which deal with cruelty against a married woman, criminal act by multiple persons with a common intention, and punishment for demanding dowry, respectively.
After the police completed their investigation and filed a chargesheet, the husband and his family approached the Andhra Pradesh HC, seeking to quash the criminal case against them.
Who is a transgender person?
Transgender Persons (Protection of Rights) Act, 2019, under Section 2 (k), defines a “transgender” to mean a person whose gender does not match with the gender assigned to that person at birth and includes trans-men or trans-women, persons with intersex variations, genderqueer persons, and those having socio-cultural identities as “kinner, hijra, aravani and jogta”. The provision also specifies that it is immaterial, whether such a person has undergone Sex Reassignment Surgery, hormone therapy, or laser therapy.
It is clear from the “inclusive definition” provided under Section 2(k) of the Act, 2019 that a person’s transgender identity is not contingent upon undergoing any medical or surgical procedure, the Andhra Pradesh HC noted in the present case.
What the court ruled
Saying that a person’s gender may not necessarily align with the sex assigned to them at birth, the court noted, “Transgender individuals may choose to undergo hormonal/laser therapy or sex reassignment surgery, in order to align their physical characteristics with their gender identity.”
A “trans-man” is a person who was assigned female at birth but identifies and lives as a man. Conversely, a “trans-woman” is a person who was assigned male at birth but identifies and lives as a woman, the court noted.
Recalling the Supreme Court’s 2014 ruling in National Legal Services Authority vs Union of India, where the transgender community had sought a legal declaration of their gender identity besides the one assigned to them at birth, the bench noted that SC had ruled that Articles 14, 15, 16, 19 and 21, which protect the rights(s) to equality, non-discrimination, equal opportunity in matters of public employment, right to freedom of speech and expression, and the right to life, cannot be restricted to the biological sex of “male” or “female”. Such protection can be given to non-binary individuals too, it had said.
“Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender,” the court had said in its 2014 decision.
Can a transgender woman file a cruelty complaint?
“The Hon‟ble Supreme Court in National Legal Services Authority (vs Union of India) has unequivocally recognised the rights of transgender persons, including their right to self-identify their gender. To deny a trans woman the status of a ‘woman’ for the purpose of legal protection under Section 498-A IPC solely on the ground of her reproductive capacity is to perpetuate discrimination,” the court said.
However, it noted that while the transgender woman was well within her rights to file a complaint under Section 498A of the IPC, the allegations raised in the complaint did not prima facie constitute any offence or make out a case against the husband or his family members. Simply put, the court quashed the criminal proceedings against the transgender’s husband and his family, while noting that continuation of the same would amount to an “abuse of law”.
Apart from this, the HC relied on the Transgender Persons (Protection of Rights) Act, 2019, which provides for the protection of transgender rights and seeks to eliminate discrimination against the transgender community in public and private spaces.
The Act also establishes a mechanism for legal recognition of transgenders’ gender identity by issuance of certificates, through the District Magistrate, which in turn affirms the right of every transgender person to their self-perceived gender identity.
Under Indian law, what other rights do transgenders have?
In K.S. Puttaswamy vs Union of India (2017), a bench of nine judges of the Supreme Court held that sexual orientation is a facet of a person’s privacy which is a fundamental right under the Constitution. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of an individual, the court had added.
Two years later, the Madras HC, in Arunkumar vs Inspector General of Registration (2019) held that everyone has a right to self-identify one’s own gender and the expression “bride” under Section 5 of the Hindu Marriage Act, 1955, will have to include not just a woman but also a transgender woman. In doing so, the court had said that a marriage between a male and transwoman, who were both Hindus, would be valid under the Hindu Marriage Act.
Four years later, the Bombay HC, in Vithal Manik Khatri vs Sagar Sanjay Kamble, allowed a transgender person, who underwent sex change surgery, to file a complaint under the Domestic Violence Act, 2005.
(Edited by Viny Mishra)
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