Trans persons can't invoke law penalising sex on false promise of marriage: Himachal Pradesh High Court

Section 69 of the Bharatiya Nyaya Sanhita (BNS) which penalises sex on false promise of marriage can be invoked only if the complainant is a woman and not a transgender person, the Himachal Pradesh High Court recently held [Bhupesh Thakur vs State of Himachal Pradesh]..It, therefore, granted bail to a man accused of establishing sexual relationship with a transgender person on the false promise of marriage.The accused was booked under Section 69 (sexual intercourse with woman by employing deceitful means, etc) of BNS and Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019. Justice Sandeep Sharma observed that since for the first time ‘transgender’ has been explained in the definition of ‘gender’, transgender persons cannot claim themselves to be a male or female as they have been given separate identity.The Court also examined Section 69 of the BNS and concluded that this provision of law can only be invoked if the complainant is a woman.“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.”.In the present case, the Court from the statements of the victim found that she had admitted to be a transgender. Thus, it found merit in the contention of the accused’s counsel that no case under Section 69 was made out against him.“Since under BNS, “woman” and “transgender” have been given different identity and have been defined independently, under Section 2 coupled with the fact that physical relationship inter-se victim-prosecutrix and bail petitioner, if any, was developed prior to surgery of victim-prosecutrix, whereby she allegedly got her sex changed, there appears to be force in the claim of the bail petitioner that he could not have been booked under Section 69 of the BNS”.However, the Court also said he was required to be dealt with under Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019 which provides for six months to two years imprisonment of those who physically or sexually abuse transgender persons..The man was booked on July 18 on the complaint that during the COVID-19 lockdown, the victim had come in contact with him through Facebook and since then, they had been in contact with each other.The transgender person alleged that though her gender was known to the man, he insisted on marrying her. She also alleged that parents of the man had expressed their inability to solemnize their marriage but asked her to get sex changed.She alleged that despite getting the sex changed, the accused refused to marry her and has gone ahead to fix his marriage with some other person..The Court last month granted interim bail to the accused. Besides the argument that he could not have been booked under Section 69 of the BNS, his counsel also said that the claim regarding sex change was yet to be established as the victim had refused to get herself medically examined.Justice Sharma said the accused had already joined the investigation and nothing remains to be recovered from him. .While agreeing that the accused could not have been booked under Section 69 of the BNS, the Court also noticed that there was nothing on record to suggest that he had made an attempt to develop physical relationship with the victim after the alleged surgery.“Though case at hand shall be decided by the court below in the totality of evidence collected on record by the prosecution, but keeping in view the aforesaid glaring aspect of the matter, there appears to be no justification for this court to send the bail petitioner in judicial custody, especially when nothing remains to be recovered from him,” the Court said.The Court thus granted bail to the accused..Senior Advocate Ajay Kochhar and advocate Anubhav Chopra represented the accused.Additional Advocates General Rajan Kahol, Vishal Panwar and BC Verma with Deputy Advocates General Ravi Chauhan represented the State.Legal Aid Counsel Bhawna Sharma represented the complainant. .[Read Order]