Transgender Woman Not a 'Woman' Under Section 69 BNS, Allahabad High Court Rules While Granting Bail
The Allahabad High Court has held that a transgender woman, even after undergoing sex reassignment surgery, remains a transgender person and not a "woman" under Section 2(35) of the Bharatiya Nyaya Sanhita (BNS). She therefore cannot be prosecuted under Section 69 of the BNS, which deals with sexual intercourse obtained through deceitful means or a false promise of marriage.
Justice Arun Kumar Singh Deshwal made the observation while granting bail to an applicant in a case registered under Sections 69, 352 and 351(3) of the BNS. The first informant, a transgender woman, was in a relationship with the applicant for more than one and a half years on his promise to marry her. She alleged that the applicant later refused to marry her after taking more than five lakh rupees.
The applicant argued that the victim had admitted she was born male and became female after vulval reconstruction surgery, and that he had proposed to her when they met for marriage. He contended that Section 69 of the BNS requires the victim to be a "woman," which Section 2(35) defines as a female human being, and that the provision was therefore not attracted. The State opposed bail, submitting that a person who was born male but changed genitals and had female hormones would fall within the definition of a woman despite lacking a uterus, and that a case was made out.
Amicus Curiae Mayuri Mehrotra submitted that, relying on an Andhra Pradesh High Court judgment in Viswanathan Krishnamurthy v. State of Andhra Pradesh, a transgender woman could not be excluded from the definition of a woman despite lacking reproductive capacity. She also pointed to the Transgender Persons (Protection of Rights) Amendment Act, 2026, under which a person who changed gender through surgery must obtain a certificate from the District Magistrate, meaning the first informant would be covered as a woman if such a certificate was obtained.
The Court noted that a person assigned male at birth who becomes female after surgery, or a person assigned female at birth who becomes male after surgery, remains a transgender person and not a male or female human being. It referred to the Himachal Pradesh High Court's view in Bhupesh Thakur versus State of Himachal Pradesh (2024) that woman and transgender are given different identities with separate punishments for sexual abuse. It also noted that the Parliamentary Standing Committee on Home Affairs, in Report No. 246, recommended bringing transgender women within the purview of rape under the BNS, but Parliament did not accept the recommendation and the word "woman" remains unchanged.
The Court observed that the first informant had admitted in her statements under Sections 180 and 183 of the BNSS that she was born male but had a woman's psyche and became a trans-woman through surgery, and that the applicant had not applied for changing his gender as per the CMO's report. It held that prima facie no case under Section 69 of the BNS was made out and granted bail. The case is titled Mohd Saakir @ Mohd Sakir v. State (Neutral Citation: 2026:AHC:217466). Advocate Krishna Gopal appeared for the applicant, while AGA Ram Kumar Verma appeared for the State.
Source: Verdictum