Reported By: Amruta Pawar
The Bombay High Court in its order dated 16th March 2023 dismissed the writ petition no. 4037 of 2021 which was filed by the petitioner challenging the order of the additional sessions judge. The additional sessions judge had upheld the decision of the judicial magistrate 1st class granting the respondent maintenance from the petitioner.
The judgment in the present matter answered whether a transgender person who has become a woman after undergoing gender reassignment surgery can be termed as an aggrieved person under section 2[a] of the domestic violence act 2005.
The background of the matter
The respondent had undergone a gender reassignment surgery in 2016 before contracting marriage with the petitioner. Due to differences between the parties, the respondent commenced a criminal proceeding against the petitioner before the judicial magistrate first class and claimed maintenance from the petitioner to which the magistrate passed an order granting interim maintenance in favour of the respondent. The petitioner thereby challenged the interim order in the sessions court. The sessions court upheld the order of the judicial magistrate first class. Aggrieved by this, the petitioner filed a writ petition before the Bombay High Court.
Contentions of the petitioner
- The petitioner argued that the respondent does not fall under the ambit of Section 2[a] of the domestic violence act and therefore, does not have the right to proceed against the petitioner under the said act.
- The respondent has no certificate issued under Section 7 of the transgender persons [protection of rights] act 2019. Thus, the respondent cannot be treated as a woman under the domestic violence act.
- The petitioner argued that the order to provide 12,000 per month as maintenance is not justified considering the absence of cogent proof of the petitioner’s income.
Contentions of the respondent
- The respondent contended that they filed a medical certificate of the respondent having undergone gender reassignment surgery.
- The respondent stated that the right of transgender persons to self-identify themselves were recognized in the case of the National Legal Services Authority v/s Union of India and others.
- The respondent further contended that the petitioner’s income is above 25,000 per day and therefore the demand of Rs.12,000 per month as maintenance is legal and proper.
The court’s observations
- The High court relied on the observations in the case of national legal Services Authority versus Union of India and others wherein it was held that “if a person has changed his or her sex with the advancement of medical science and which is also permitted by medical ethics, we do not find any impediment in giving due recognition to the gender identity based on the reassigned sex”.
- The court observed that the purpose of the domestic violence act is to provide effective protection to the right of women who are the victims of violence within the family.
- The court observed that the definition under section 2[a] is no more limited to the binary of women and therefore should be interpreted in a broad manner aligning it with the object of the act.
Thus, in light of the above observations the court held :
- The transgender person who has performed surgery to become a female is an aggrieved person under section 2[a] of the domestic violence act.
- The Court held that the amount of maintenance is not unreasonable and directed the petitioner to clear the areas of maintenance within 4 weeks from the date of the judgment.