The Allahabad high court has held that a transgender woman, after having undergone a sex-reassignment surgery, does not fall within the statutory definition of “woman” under Section 69 of the Bharatiya Nyaya Sanhita (BNS), which criminalises sexual intercourse with a woman through deceitful means or a false promise of marriage where the act does not amount to rape.
The high court bench of justice Arun Kumar Singh Deshwal made the observation in his October 15 order while granting bail to Mohd Sakir, who was accused of establishing a physical relationship with a transgender woman on a false promise of marriage. A criminal case was registered against him in Bareilly district’s Izzatnagar police station.
The court was of the view that a transgender person has a separate identity under the Transgender Persons (Protection of Rights) Act, 2019. “The above definition of transgender person clearly shows that even if a person was assigned gender as a male at the time of birth and after sex reassignment surgery, he became female or if a person was assigned gender as a female at the time of birth and after sex reassignment surgery, he became male then it is clear that 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.”
The transgender woman, who lodged the FIR, had been in a relationship with the accused for more than one-and-a-half years, after he allegedly promised to marry her. However, she alleged that after taking over ₹5 lakh from her, he refused to marry her.
{{/usCountry}}The transgender woman, who lodged the FIR, had been in a relationship with the accused for more than one-and-a-half years, after he allegedly promised to marry her. However, she alleged that after taking over ₹5 lakh from her, he refused to marry her.
{{/usCountry}}During the hearing, the applicant’s counsel submitted that the informant stated in her statements under Sections 180 and 183 of Bharatiya Nagarik Suraksha Sanhita (BNSS) that she was assigned male at birth and had undergone vulval reconstruction surgery on April 11, 2023.
It was also submitted that she had disclosed her transgender identity to the accused before entering into the relationship. Relying on a medical panel report of August 19, 2026, the accused’s counsel argued that the alleged victim was not actually found to be female, but a male with the changed genital parts without a uterus. It was, therefore, submitted that to attract the ingredients of section 69 of BNS, the victim should be a woman, and the word ‘”woman” has been defined under Section 2(35) of BNS.
The state opposed the bail application. It argued that a transgender woman should not be excluded from the definition of woman merely because she was assigned male at birth and had subsequently undergone surgery.
The high court also referred to a report of the parliamentary standing committee on home affairs, which had recommended bringing transgender women within the purview of the rape provisions of the BNS through an appropriate amendment. The court noted that Parliament did not accept the recommendation, and the definition of “woman” remained unchanged.
The high court in its order held that, prima facie, no offence under section 69 of BNS was made out and hence, it granted bail to the accused-applicant, subject to conditions.