Transgender persons cannot invoke BNS Section 69 in cases of sex on false marriage promise: Himachal Pradesh High Court

Justice Sharma specified in court that Section 69 has made provisions to penalise an offender who have made false promises of marriage to a 'woman', and not to a 'transgender'.

The Himachal Pradesh High Court has said that Section 69 of the Bharatiya Nyaya Sanhita (BNS), which protects women in cases of sexual intercourse on false promises of marriage, will not be applicable to transgender individuals.

“Since under BNS, 'woman' and 'transgender' have been given different identity and have been defined independently, under Section 2 coupled with the fact that physical relationship inter-se victim prosecutrix and bail petitioner, if any, was developed prior to surgery of victim-prosecutrix, whereby she allegedly got her sex changed, there appears to be force in the claim of the bail petitioner that he could not have been booked under Section 69 of the BNS, rather he is required to be dealt with in terms of the under Section 18 (d) of the Act,” high court judge Justice Sandeep Sharma observed during a ruling, Live Law reported.

What was the case about?

Justice Sharma gave his observation while hearing a bail petition by one Bhupesh Thakur, who has been accused by a transgender woman of sexual intercourse on the false promise of marriage.

The victim claimed that they had met through Facebook during Covid-19, and despite her having revealed her transgender identity to Thakur, he had promised to marry her. She also claimed that at one point, Thakur had applied 'sindoor' to her forehead.

It was also alleged that when Thakur refused to marry her, his family insisted that the victim undergoes gender reassignment surgery.

Upon the completion of her surgery, the victim discovered that Thakur's marriage was already arranged with someone else. This is when she decided to lodge a complaint.

Arguments and observations

The petitioner's advocate argued in court that Section 69 applies to cases when a woman lodges a complaint of false promise of marriage, but the prosecutrix, having identified herself as a transgender, did not qualify as a 'woman' as per the provisions of the statute.

The State, on the other hand, said the emotional and physical harm caused to the complainant is too serious for the petitioner to be granted bail.

Justice Sharma specified in court that Section 69 has provisions to penalise an offender who made false promises of marriage to a 'woman', which has been defined by the BNS as "a female human being of any age".

The court noted that a 'transgender' individual has been defined as a separate gender as per Section 2(10) of the BNS.

"This court finds that nothing has been adduced on record till date, suggestive of the fact that attempt to develop physical relationship, if any, by the petitioner with victim-prosecutrix was ever made after the alleged surgery, whereby victim-prosecutrix got her sex changed," the court, the report stated, said regarding the application of the Transgender Persons (Protection of Rights) Act in the case.

Thakur was granted bail by the high court.