New Delhi: When a Bareilly-based transwoman underwent sex reassignment or gender-affirming surgery in April 2023, she believed she was moving into a new chapter of personal dignity and legal recognition in life.
Shortly after the procedure, she met a man called Mohd Saakir. The two began a relationship, during which she disclosed her gender identity, the two established physical intimacy, and he proposed marriage to her. She also gave him more than Rs 5 lakh upon his request. However, after allegedly extracting the money—after a year and half of being her partner—Saakir and his family turned her away, and refused to solemnise the marriage.
Seeking justice, she filed a complaint earlier this year under Section 69 of the Bharatiya Nyaya Sanhita (BNS)—a provision that criminalises sexual intercourse achieved through deceitful means or false promises of marriage.
But a crucial legal challenge soon reached the Allahabad High Court: Does a transgender woman, even after undergoing gender affirmation surgery, meet the statutory definition of a “woman” under the BNS?
In a pivotal bail order on 15 October, Justice Arun Kumar Singh Deshwal of the high court ruled that a transgender woman cannot be classified as a “woman” under Section 69, granting bail to the accused and exposing a significant statutory distinction in criminal law.
The court distinguished past rulings from other high courts relied upon by the Amicus Curiae, Mayuri Mehrotra. Key judgements, such as Uttarakhand High Court’s ruling in Ms X vs State of Uttarakhand (2019), and Andhra Pradesh High Court’s ruling in Viswanathan Krishnamurthy (2025)—which had extended protection to transwomen under earlier penal laws—were held inapplicable.
The Allahabad High Court explained that those decisions preceded or failed to consider the explicit tripartite definition of gender (“male, female, or transgender”) enacted under the BNS.
Instead, the court concurred with Himachal Pradesh High Court’s finding in Bhupesh Thakur vs State of Himachal Pradesh (2024), which recognised that BNS grants distinct legal identities to women and transgender individuals.
The judge went on to highlight that this distinction was a deliberate choice made by Parliament despite a recommendation by the Parliamentary Standing Committee on Home Affairs in a December 2023 report to amend the BNS to bring transgender women within the purview of sexual offences like rape. Parliament did not accept the recommendation, retaining the strict definition of “woman” as a “female human being”.
The case
The transwoman’s journey represents the deeply personal stakes behind legal categorisation.
According to statements recorded under Sections 180 and 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the complainant was assigned male at birth, but possessed the psyche of a woman. On 11 April, 2023, she underwent vulvar reconstruction surgery. In her statement under Section 183 of BNSS, she emphasised that before entering into a physical relationship with Saakir, she had fully disclosed her status as a transgender woman.
Saakir accepted her, she claimed, promised to marry her, established physical relations, but backed out after taking a substantial sum of money from her.
The defence counsel argued that Section 69 of BNS explicitly requires the victim to be a “woman”. Relying on a panel report from medical officers dated 19 August this year, the counsel asserted that the victim was anatomically a male with altered external genitalia lacking a uterus.
They maintained that under the BNS framework, a transgender individual cannot be treated as a “female human being”.
Conversely, the State’s counsel argued that a male who undergoes sex reassignment surgery and possesses female hormones should fall within the ambit of a woman, asserting that trans identity should not strip a victim of protection against deceitful sexual exploitation.
Allahabad High Court’s interpretation of ‘woman’ under BNS
The court focused on the precise statutory phrasing of Section 69 of BNS, which states: “Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her… shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.”
Justice Deshwal evaluated this provision against the statutory definition of “woman” set out in Section 2(35) of BNS, which says that a “woman” means a female human being of any age.
The court further examined Section 2(10) of BNS, which defines gender, stating that the pronoun ‘he’ and its derivatives are used of any person, whether male, female or transgender.
The explanation to Section 2(10) BNS explicitly references Section 2(k) of the Transgender Persons Act, 2019, which defines a transgender person as someone whose gender does not match their assigned sex at birth, explicitly including transwomen, regardless of whether they have undergone sex reassignment surgery.
Justice Deshwal held that Parliament established three separate gender identities under BNS—male, female, and transgender—and observed, “Even if a person was assigned gender as a male at the time of birth and after sex reassignment surgery, he became female… transgender man/woman will still be a transgender and not the male human being or female human being. The word ‘woman’ mentioned in Section 69 of BNS includes only female human being.”
Consequently, the Court held that even after undergoing surgery, a transgender woman remains classified as a “transgender person”, rather than a “female human being”, under Section 2(35) BNS.
The high court further noted that sexual abuse against transgender individuals is governed by Section 18(d) of Transgender Persons (Protection of Rights) Act, 2019, which punishes physical or sexual abuse with imprisonment of up to two years. In contrast, Section 69 BNS carries a sentence of up to 10 years.
(Edited by Mannat Chugh)
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