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Transgender person becoming woman can seek relief under DV Act: Bombay High court

Team SoOLEGAL 5 Apr 2023 9:51am

Transgender person becoming woman can seek relief under DV Act: Bombay High court

New Delhi: A transgender person who wants to undergo gender transformation and chooses to be a woman by undergoing gender reassignment surgery is entitled to seek relief under the Domestic Violence Act (DV Act). The Bombay High Court, on the very issue has ruled and upheld a lower court order directing a man to pay maintenance to his wife, who was initially a transgender person.

In an order dated 16.03,2023, a single bench of Justice Amit Borkar, Bombay High Court, said that the word “woman” can’t be confined and a wider perspective should be taken into account. While interpreting the meaning of woman transgender persons should also be included, who have changed their sex. Justice Borkar noted that section 2(f) of the DV Act that defines a domestic relationship is gender neutral and hence includes persons irrespective of their sexual preferences.

The order of the Court further said that, a transgender person, a male or female who has undergone a sex change operation is entitled to the gender of their comfort and choice. The court observed “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 have encountered violence of any kind occurring within the family.”

Further it was held that the need to pass such legislation arose because of the lacuna in the existing law which is inadequate to grant relief to a woman who has faced cruelty done by her husband and their family. It was also held that 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.

In the instant petition, an order of Sessions Court dated October 2021 was challenged by a man, which upheld a magistrate's court direction to pay Rs 12,000 monthly maintenance to his wife, who was initially a transgender person. The wife had filed proceedings against her husband as a woman under the DV Act. According to her, she became a woman in 2016 from a transgender person after undergoing a gender reassignment surgery. In 2016 only, the couple got married but differences arose two years later, following to which she filed an application before a magistrate's court seeking maintenance under the DV Act. The husband in his petition filed in the High Court claimed that his wife did not fall within the definition of aggrieved person as such right has been conferred only to “women” in a domestic relationship. The wife's lawyer argued that after the surgery the wife recognized her gender as female and has all the rights.

Dismissing the husband's plea, the HC directed the husband to clear all arrears of maintenance within four weeks.



Tagged: Transgender  
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