Trans woman not within purview of Sec 69 of BNS: Allahabad HC

The Allahabad High Court examined whether Section 69 of the Bharatiya Nyaya Sanhita could apply to a transgender woman after sex-reassignment surgery. It held that the section’s statutory word “woman” covers only a female human being under the law as written. The ruling was made while considering bail, not after a full trial.

The case involved Mohd Sakir, accused of having a relationship with a transgender woman after allegedly promising marriage. She said he later refused to marry her after taking more than ₹5 lakh. The court relied on her recorded statements, the Transgender Persons Act, and a medical panel report mentioned during the hearing.

The court concluded that the alleged facts did not, prima facie, establish an offence under Section 69. It therefore granted bail subject to conditions. The court also noted that Parliament had not accepted a recommendation to extend relevant rape provisions to transgender women, leaving the statutory wording unchanged.

Section 69 of the Bharatiya Nyaya Sanhita addresses sexual intercourse with a woman obtained through deceitful means or a false promise of marriage. It applies where the alleged conduct does not amount to rape. The provision therefore creates a separate criminal offence for certain sexual relationships involving deception or an allegedly dishonest marriage promise.

In this case, the transgender woman alleged that Mohd Sakir entered a physical relationship with her after promising to marry her. She said the relationship lasted more than one-and-a-half years and that he took over ₹5 lakh before refusing to marry her. The legal dispute focused on whether Section 69’s word “woman” covered her.

The court referred to Section 2(35) of the BNS and held, prima facie, that “woman” meant a female human being. Because the court found the statutory definition did not include this transgender woman, it concluded that Section 69 was not attracted on the facts presented at the bail stage.

The transgender woman told police that her relationship with the accused continued for more than one-and-a-half years. She alleged that the relationship began after he promised to marry her. The length of the relationship formed part of the factual background to the criminal complaint and the bail proceedings.

She also alleged that she gave Mohd Sakir more than ₹5 lakh during the relationship. According to her allegation, he later refused to marry her despite the earlier promise. A criminal case was registered at Izzatnagar police station in Bareilly district.

These allegations were relevant to the claimed offence under Section 69, which concerns sexual intercourse through deceitful means or a false promise of marriage. However, the High Court focused on whether the statutory definition of “woman” covered the complainant. It ultimately found, prima facie, that Section 69 did not apply and granted the accused bail subject to conditions.

The court’s reasoning turned on how two laws used different categories. It said the Transgender Persons (Protection of Rights) Act, 2019 gives transgender people a separate legal identity. In the court’s view, a person assigned male at birth remains a transgender person after surgery, even if the person becomes female in physical characteristics.

The court then read Section 69 of the BNS alongside Section 2(35), which defines “woman.” It held that the word in Section 69 includes only a female human being. The prosecution argued that a transgender woman should not be excluded merely because she was assigned male at birth and later underwent surgery.

The court also noted that a parliamentary standing committee had recommended bringing transgender women within relevant rape provisions through an amendment. Parliament did not accept that recommendation. The court therefore applied the wording that remained in force and found, prima facie, that Section 69 did not cover the complainant.

The Transgender Persons (Protection of Rights) Act, 2019 is the statute the High Court used to identify transgender people as a separate legal category. The article explains that the Act recognizes a transgender person as having an identity distinct from the categories of male human being or female human being used in the court’s reasoning.

The court gave an example from the case. A person assigned male at birth may undergo sex-reassignment surgery and become female, but would still legally be a transgender woman under the Act’s definition, according to the order. Similarly, a person assigned female at birth may become male and remain a transgender man.

This interpretation mattered because Section 69 uses the word “woman,” while the court said that term means only a female human being. The court therefore treated the Act’s separate transgender category as distinct from Section 69’s statutory category, without deciding the broader social or personal identity of the complainant.

The immediate result was that Mohd Sakir received bail from the Allahabad High Court. The order made bail subject to conditions. The court reached this result after holding, prima facie, that the alleged conduct did not constitute an offence under Section 69 because the complainant did not fall within the statutory word “woman” as the court interpreted it.

The case arose from an allegation that Sakir had a physical relationship with the transgender woman after promising marriage. She alleged that he accepted more than ₹5 lakh and later refused to marry her. The state opposed bail and argued that a transgender woman should not be excluded from the provision.

Granting bail is not the same as a final finding of innocence. It is an interim decision about release while the criminal case continues. The article reports only that the court found no Section 69 offence prima facie and granted bail; it does not report a final trial judgment on every allegation.

Parliament’s decision not to amend the BNS left the relevant definition of “woman” unchanged. That matters because criminal offences are applied through the words Parliament has enacted. Courts may interpret those words, but the High Court said it could not expand Section 69’s statutory category beyond the wording before it.

A parliamentary standing committee had recommended bringing transgender women within the rape provisions of the BNS through an appropriate amendment. The article says Parliament did not accept that recommendation. The High Court treated that legislative choice as important when deciding whether Section 69 covered the complainant.

The immediate effect was that the court held, prima facie, that Section 69 did not apply in this case. More broadly, the ruling shows how unchanged statutory language can determine who receives protection under a specific criminal offence. Any wider coverage would require a legislative amendment, according to the court’s reasoning.