Recently, the Himachal Pradesh High Court held that Section 69 of the Bhartiya Nyaya Sanhita, which penalises sex on a false promise of marriage, applies only if the complainant is a woman, not a transgender person. The court granted bail to a man accused of having a sexual relationship with a transgender individual under the pretences of marriage.
The complaint arose after the accused connected with the transgender person via Facebook during the COVID-19 lockdown. The complainant alleged that despite knowing her gender identity, the accused promised marriage and encouraged her to undergo sex-change surgery. After the surgery, the accused allegedly refused to marry her and arranged to marry someone else. The accused has been charged under Section 69 of the Bhartiya Nyaya Sanhita and Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019, which criminalizes abuse against transgender individuals.
The bench led by Justice Sandeep Sharma, noted that since the Bhartiya Nyaya Sanhita defines transgender separately under the concept of gender, transgender individuals cannot be categorized as either male or female. The court clarified that Section 69 specifically applies to deceitful sexual relations with a woman, not a transgender person. The court said, “In aforesaid provision of law, it has been categorically provided that whoever by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term, which may extend to ten years and shall also be also liable to pay fine”.
It is observed by the court that the complainant has identified as transgender, lending merit to the argument by the accused’s counsel that Section 69 of the BNS could not be invoked. The court also referenced the fact that the relationship between the accused and the complainant occurred before the complainant’s alleged gender reassignment surgery.
The court noted that, “As per definition pronoun “he” and its derivatives are used of any person, whether male, female or transgender. For the first time, word “transgender” has been included in the definition of “gender”, meaning thereby, transgenders cannot claim themselves to be male or female as they are given separate identity”.
The court recognized that the accused could still be held accountable under Section 18(d) of the Transgender Persons (Protection of Rights) Act, which criminalizes physical or sexual abuse against transgender individuals, with penalties ranging from six months to two years in prison.
The court had previously granted interim bail and further noted that there was no evidence of a physical relationship between the accused and the complainant after the surgery. With no further evidence or recovery needed from the accused, the court found no reason to keep him in judicial custody.
Case Title: Bhupesh Thakur vs. State of Himachal Pradesh
Citation: Cr.MP(M) No.1798 of 2024
Coram: Justice Sandeep Sharma
Order Date: 30.08.2024
Advocate for Petitioner: Adv. Ajay Kochhar (Senior Advocate) and Anubhav Chopra
Advocate for Respondent: Adv. Rajan Kahol, Vishal Panwar, B.C. Verma (Additional Advocates General), Ravi Chauhan (Deputy Advocates General) Bhawna Sharma (Legal Aid Counsel) and ASI Vijay Pal Singh (I.O. WPS Baddi, District Solan, Himachal Pradesh).
Read Order @LatestLaws.com