Bombay High Court: Transgender person becoming woman after surgery can seek relief under Domestic Violence Act

Bombay High Court: Transgender person becoming woman after surgery can seek relief under Domestic Violence Act

According to the estranged wife, she became a woman in 2016 from a transgender person after undergoing a gender reassignment surgery.

Urvi MahajaniUpdated: Friday, March 31, 2023, 07:20 PM IST
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The Bombay high court on Friday ruled that a transgender person who chooses to be a woman by undergoing a gender reassignment surgery can seek relief under the Protection of Women from Domestic Violence Act (DV Act). 

Justice Amit Borkar upheld the order of the lower court which directed a man to pay monthly maintenance of ₹12,000 to his estranged wife, who was initially a trans gender person. 

"The word woman also includes transgender persons who have changed their sex," says HC

The word “woman” is no longer limited to the binary of women and men and also includes transgender persons who have changed their sex in tune with how they identify themselves, said justice Borkar on March 16. The detailed order copy was made available on Friday. 

Further, the judge noted that Section 2(f) of the DV Act that defines a domestic relationship is “gender neutral which includes persons irrespective of their sexual preferences”. There is no manner of doubt that a transgender person or either a male or female who has undergone a sex change operation is entitled to the gender of their choice, the order said.

“The object and purpose of the provisions of the Domestic Violence Act is to provide more effective protection of the rights of the women who are victims of violence of any kind that occurs within the family,” noted justice Borkar. 

The need to pass such a legislation 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, said justice Borkar. He further added that the word 'woman' is no more limited to the binary of women and men and includes “person who has changed his/her sex in tune with his/her gender characteristics”.  

“Therefore, in my opinion, a transgender person who has undergone surgery to change their gender to female needs to be termed as an aggrieved person within the meaning of the Domestic Violence Act,” averred the judge. 

Man's estranged wife was a transgender person

The HC was hearing a petition filed by a man challenging the October 2021 order of a sessions court upholding a magistrate's court. The magistrate in 2018 had directed him to pay ₹12,000 monthly maintenance to his estranged wife, originally a transgender person.

She converted her gender from transgender person to a woman on June 1, 2016. They married on July 21, 2016. Following disputes between the two, she filed proceedings under the DV Act in 2018 seeking maintenance. 

The husband challenged the maintenance order contending that his wife did not fall within the definition of aggrieved person as such right has been conferred only on "women" in a domestic relationship. 

Dismissing the petition, the HC has directed the husband to clear all arrears of maintenance within four weeks.

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