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Synopsis

A single judge bench of the Bombay High Court comprising Justice Amit Borkar recently held that a transgender who has performed surgery to change gender to a female will be considered an aggrieved person under the Domestic Violence Act.

“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. Therefore, in my opinion, 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.” Justice Borkar noted.

The high court was hearing a case wherein a transgender who had converted her gender to female had filed an application under the Domestic Violence Act and sought interim maintenance. The magistrate court allowed the application and granted interim maintenance of Rs. 12000. The husband, however, filed an appeal before the sessions court which upheld the order of the magistrate court. The husband then filed an appeal before the high court against the order of the sessions court.

The advocate for the petitioner argued that the wife in the present matter did not fall within the definition of an aggrieved person as such as the right under the Act has been conferred on "women" in a domestic relationship.

Additionally, it was submitted that there was no certificate issued to the alleged aggrieved person under Section 7 of the Transgender Persons (Protection of Rights) Act, 2019, and therefore she could not be treated as a woman under the provisions of the Domestic Violence Act, 2005. He also argued that in the absence of cogent evidence of the petitioners' income, the order of payment of Rs.12,000 per month could not be justified.

The Advocate for the respondent relied on the Apex Court’s judgment of National Legal Services Authority Vs. Union of India and others while arguing that the Apex Court has recognized the right of a person who has changed his/her sex in tune with his/her gender characteristics and perception can be granted due recognition to the gender identity based on the reassigned sex after undergoing SRS. She also submitted that the petitioner's income exceeds Rs. 25,000 per day; therefore, the direction to pay Rs.12,000 is legal and proper.

After referring to the Apex Court’s judgment, the court noted,

“On perusal of paragraphs 105 and 129, there is no manner of doubt that transgender persons or either a male or female who has performed a sex change operation are entitled to gender to their choice. 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.”

The court further said that the definition of aggrieved person should be interpreted in the best possible manner in tune with the object and purpose of the Act.

“Domestic violence has been recognized human rights issue and a serious deterrent to development - The Vienna Accord of 1994, the Beijing Declaration, and the Platform for Action (1995). The need to pass legislation like the protection of women from domestic violence Act was found necessary as the existing civil law was inadequate to address a woman who was and is subjected to cruelty by their husband and their family relatives in recognition of their fundamental rights guaranteed under Article 14, 15 and 21 of the Constitution of India. 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 bench noted.

The court while dismissing the appeal said that the quantum of maintenance was not unreasonable as the appellant was earning Rs 25000 per day and also had immovable properties.

Case Title: ABC vs XYZ