Transgender person has rights under DV Act once gender is chosen: HC
The Bombay high court has ruled that a transgender person can claim compensation under the Protection of Women from Domestic Violence Act, rejecting a man's appeal against paying maintenance to his transgender partner. The court held that the Act was gender neutral and the man could not refuse to pay maintenance on the grounds that the transgender person was not a woman and had undergone gender reassignment surgery. The ruling noted that a transgender person who has undergone surgery to change gender to female is an "aggrieved person" under the Act.
MUMBAI: The Bombay high court has held that a transgender person can claim compensation under provisions of the Protection of Women from Domestic Violence (DV) Act and rejected the petition of a man, who was directed by the magistrate court to pay maintenance to the transgender person.
The court held that the Act was gender neutral and the man could not refuse to pay maintenance on the ground that the transgender person was not a woman and had become one after undergoing a gender change procedure.
The single judge bench of justice Amit Borkar was informed by advocate Sushant Prabhunne, the counsel for petitioner man that his client was aggrieved by a magistrate court order and a subsequent rejection of his appeal against the order by a sessions court and hence he had approached the HC in March 2021.
The bench was told that the magistrate court had in November 2019 directed the husband to pay monthly maintenance of ₹12,000 to the respondent. However, as the respondent wife was not born as a woman, he had approached the session court, challenging the order, but it upheld the magisterial order.
According to the petition, the respondent had undergone a gender change operation in June 2016 after which her marriage was performed with the petitioner in July 2016. However due to some differences, she lodged an application before the magistrate court seeking interim maintenance under the provisions of the DV Act. The Baramati magistrate court had directed the petitioner husband to pay her ₹12,000 per month.
While arguing against the order, Prabhunne submitted that the respondent did not fall within the definition of aggrieved person as such right had been conferred on “women” in a domestic relationship.
“Additionally, it is submitted that there is no certificate issued to her under Section 7 of the Transgender Persons (Protection of Rights) Act, 2019, and therefore she cannot be treated as a woman under the provisions of the Domestic Violence Act, 2005,” Prabhunne had argued.
However, advocates Vrushali Mainded and Shaheen Kapadia for the woman relied on a Supreme Court judgement to show that it is the right of the person who has changed his/her sex in tune with his/her gender characteristics and perception to be granted due recognition to the gender identity based on the reassigned sex after undergoing SRS.
In light of the arguments, the bench noted that the word ‘woman’ in section 2(a) of Domestic Violence Act was “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.”
Justice Borkar noted, “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.”
In view of the observation, the bench held that there was no miscarriage of justice in the magistrate court order and directed Khatri to pay ₹12,000 maintenance and dismissed his petition.