Transgender Woman Cannot Be Considered As 'Woman' For Purposes Of Section 69 BNS: Allahabad High Court Grants Bail

The Allahabad High Court held that a trans woman, even after undergoing sex reassignment surgery, remains classified as a transgender person rather than a "woman" under Section 2(35) of the BNS, and therefore cannot be prosecuted under Section 69 of the BNS for sexual intercourse under a false promise of marriage.

The Court granted bail to the applicant after noting that the first informant was biologically born male and that prima facie no case was made out under Section 69.

The Bench of Justice Arun Kumar Singh Deshwal held, "In view of the above analysis, it is clear that trans-woman (even through sex reassignment surgery), would still be included in the transgender, not in the definition of woman (female human being), specially for the purpose of Section 69 of BNS, where deceitful means or false promise to marry relates to the woman."

Advocate Mayuri Mehrotra appeared as Amicus Curiae, Advocate Krishna Gopal appeared for the Applicant, and AGA Ram Kumar Verma appeared for the State

Brief Facts

A bail application was filed in a case arising out of alleged offences under Sections 69, 352, and 351(3) of the BNS.

An FIR was registered by the first informant, a transgender woman, who was in a relationship with the applicant for more than one and a half years, on his promise to marry the first informant. Subsequently, the applicant, after taking money of more than five lakhs, refused to marry the first informant. 

Contentions of the Parties

The Applicant submitted that the victim admitted the fact that initially she was born male and, after conducting surgery of vulval reconstruction surgery, became female, and when the applicant met her for marriage, then he proposed to her.

It was submitted that, to attract the ingredients of Section 69 of BNSS, there is a specific condition: the victim should be a woman, and the word 'woman' has been defined under Section 2(35) of BNS wherein only a female human being is considered as a woman. It was added that Section 69 of BNS would not be attracted, and the applicant has been falsely implicated.

The State opposed the prayer for bail and submitted that after changing the genitals, a male who was having female hormones would come within the definition of woman despite the fact that he or she does not have a uterus.

It was further submitted that the word 'transgender' female would not exclude a person from the definition of woman even though she became a woman after changing her genitals through surgery despite being born as a male, and there are allegations that the applicant has established a physical relationship with the first informant on the false promise of marriage; therefore, a case is made out against the applicant.

Amicus Curiae Mayuri Mehrotra submitted that, relying on the Andhra Pradesh High Court judgment in Viswanathan Krishnamurthy v. State of Andhra Pradesh, a transgender woman could not be excluded from the definition of a woman despite lacking reproductive capacity.

She also pointed out that under the Transgender Persons (Protection of Rights) Amendment Act, 2026, a person who changed their gender through surgery was required to obtain a certificate from the District Magistrate, meaning the first informant would be covered within the definition of a woman if such a certificate was obtained.

Observations/Findings of the Court

The Court considered the question of whether a transgender woman would be deemed to be a woman for the purpose of Section 69 of BNS.

It was noted that even if a person was assigned gender as a male at the time of birth and, after sex reassignment surgery, became female or if a person was assigned gender as a female at the time of birth and, after sex reassignment surgery, became male, then it is clear that transgender man/woman will still be a transgender person and not a male human being or a female human being. The word 'woman' mentioned in Section 69 of BNS includes only a female human being.

The Court referred to the view taken by the Himachal Pradesh HC in Bhupesh Thakur versus State of Himachal Pradesh (2024), wherein it was observed that woman and transgender were given different identities and separate punishment for sexual abuse. Therefore, transgender woman would not be a woman for the purpose of Section 69 BNS.

It also relied on the Parliamentary Standing Committee of Home Affairs in its Report No. 246, which suggested, through recommendation number 17, that in the BNS provision of rape is strictly limited to a woman and does not include a transgender woman and therefore, recommended to bring the transgender woman within the purview of rape by making necessary amendment in the BNS. But this report was not accepted by the Parliament, and the word 'woman' remains as it is in the BNS without including transgender women.

"It is not in dispute that first informant himself admitted in her statements under Section 180 BNSS and 183 BNSS that she was born as a male but having psyche of woman, changed herself into a trans-woman through sex reassignment surgery, and at the time of establishing relationship with the applicant she disclosed this relationship, but applicant, despite having sexual relationship with her, refused to marry, and even as per the report of CMO, the applicant has not applied for changing the gender. Therefore, prima facie no case under Section 69 BNS is made out. Therefore applicant is entitled to be released on bail", it was held.

Accordingly, the Court released the applicant on bail.

Cause Title: Mohd Saakir @ Mohd Sakir v. State [Neutral Citation: 2026:AHC: 217466]

Appearances:

Applicant: Advocate Krishna Gopal 

Respondent: AGA Ram Kumar Verma

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