Transgender Person Can File Complaint Under Domestic Violence Act: Bombay High Court

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Recently, the Bombay High Court ruled that a transgender woman who has undergone sex re-assignment surgery can be considered an 'aggrieved person' under section 2(a) of the Domestic Violence Act and as they will have the right to seek interim maintenance in a domestic violence case.

A man named had challenged the maintenance awarded to his wife, who is a trans woman, but, Justice Amit Bokar has dismissed the petition. Bokar said that any transgender individual who has gone sex reassignment surgery to change their gender to female must be considered an 'aggrieved person' according to Section 2(a) of the Domestic Violence Act, 2005.

'...the Transgender who has performed surgery to change gender to a female, needs to be termed as an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act, 2005. It is, therefore, held that a person who has exercised his right to decide the self-identified gender of women is an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act, 2005.' he observed.

Further, the court had mentioned that the term 'aggrieved person' under section 2(a) of the DV Act, 2005 must have a broader interpretation when it comes to protecting women from domestic violence. Also, any transgender individual has the right to decide which gender they want to identify themselves with and is entitled to the protections under the Act.

"The object and purpose of the provisions of the Domestic Violence Act 2005 is to provide more effective protection of the right of the women guaranteed who is victims of violence of any kind that occurs within the family...Therefore, while interpreting the definition of aggrieved persons in tune with the object and purpose of the Act, such definition needs to be interpreted with the broadest possible terms", the court held.

The petitioner married a transgender woman (the respondent) and the latter had a surgery for gender change in 2016. The respondent sought interim maintenance and filed a case under DV Act. The Judicial Magistrate First Class awarded her maintenance and the Additional Sessions Judge upheld it in appeal, mentioned a report by LiveLaw.

Therefore, the petitioner approached the apex court of India, the High Court and contended that the respondent doesn't fall under the definition of 'aggrieved person' in DV Act, as it is for women in a domestic relationship. He also mentioned that the respondent does not have a certificate under Section 7 of the Transgender Persons (Protection of Rights) Act, 2019 and therefore cannot be treated as a woman under the DV Act.

Therefore, the court had to answer the question that if a transgender woman undergoes sex reassignment surgery can they be considered an "aggrieved person" under section 2(a) of the DV Act?

The court noted that according to the section 2(f) of the DV Act, a domestic relationship is gender neutral. It said that the term 'woman' controls the amplitude of section 2(a) of the DV Act. It relied on the National Legal Services Authority v. Union of India and said that transgender persons who have undergone sex reassignment surgery are entitled to the gender of their choice and that the word woman is not limited to the binary of women and men, and it includes transgender individuals too who have undergone sex change surgeries to match up their gender traits or characteristics.