Prayagraj: The Allahabad high court has held that a transgender woman, even after undergoing sex-reassignment surgery, would not fall within the statutory definition of ‘woman’ under Section 69 of the Bharatiya Nyaya Sanhita (BNS). The provision prescribes punishment for sexual intercourse with a woman by employing deceitful means or making a promise to marry without any intention of fulfilling it, where the act does not amount to rape.Accordingly, Justice Arun Kumar Singh Deshwal granted bail to Mohd Sakir, who was accused of establishing a physical relationship with a transgender woman on a false promise of marriage and subsequently refusing to marry her. A criminal case was registered against him at Izzatnagar police station in Bareilly this year.The court observed 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 informant, who lodged the FIR, is a transgender woman who had been in a relationship with the accused for more than 1.5 years on his promise to marry her. It was alleged that he subsequently refused to marry her after taking more than Rs 5 lakh. The FIR alleged that he had established a physical relationship with her on a false promise of marriage.During the hearing, the applicant’s counsel submitted that the informant had stated in her statements recorded under Sections 180 and 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) that she had been 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 dated August 19, 2026, the accused’s counsel argued that the alleged victim had not been found to be female, but was a male with altered genital parts and without a uterus. The counsel, therefore, submitted that to attract the ingredients of Section 69 of the BNS, the victim must be a woman. The term ‘woman’ is defined under Section 2(35) of the BNS, which, according to the counsel, refers only to a female human being.The state, on the other hand, opposed the bail application. It argued that a transgender woman should not be excluded from the definition of ‘woman’ merely because she had been assigned male at birth and had subsequently undergone surgery.The HC 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 had not accepted the recommendation and that the definition of ‘woman’ remained unchanged.In this backdrop, the HC, in its order dated Oct 15, held that, prima facie, no offence under Section 69 of the BNS was made out and granted bail to the accused, subject to conditions. The court expressly clarified that its observations were confined to the interpretation of ‘woman’ under Section 69 of the BNS and did not apply to any other offence.
