In a landmark ruling, the Himachal Pradesh High Court held that transgender individuals cannot seek protection under Section 69 of the Bharatiya Nyaya Sanhita (BNS), 2023, for offenses relating to a false promise of marriage. The decision was delivered by Justice Sandeep Sharma in the case of Bhupesh Thakur vs. State of Himachal Pradesh (Cr.MP(M) No. 1798 of 2024), significantly impacting how the legal framework addresses cases involving transgender persons.
Background of the Case
The case revolves around an FIR filed on July 18, 2024, at the Women Police Station, Baddi, District Solan, under Section 69 of the Bharatiya Nyaya Sanhita, 2023, and Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019. The complainant, a transgender woman, alleged that she had met the accused, Bhupesh Thakur, during the COVID-19 lockdown through Facebook. Despite being aware of her transgender status, Thakur allegedly pursued a romantic relationship with her, promising marriage.
The complainant further claimed that Thakur took her to various places, including Naina Devi and Agra, where he symbolically married her by applying sindoor on her forehead. However, when the family of the accused objected to the marriage, Thakur allegedly asked her to undergo gender reassignment surgery, which she did. After the surgery, Thakur refused to marry her, leading to the filing of the FIR against him for deceit and false promises of marriage.
Legal Issues Involved
1. Applicability of Section 69 of the Bharatiya Nyaya Sanhita, 2023: This provision criminalizes sexual intercourse with a woman by deceitful means or by making a promise of marriage without any intention to fulfill it, with a punishment that may extend up to ten years. The court had to determine whether a transgender individual could be classified as a “woman” under this section.
2. Interpretation of Gender Definitions under the Law: The court also examined the definitions provided under Section 2 of the BNS, which separately defines “woman” as a female human being of any age and includes “transgender” as a distinct identity.
3. Relevance of the Transgender Persons (Protection of Rights) Act, 2019: Section 18(d) of this Act provides punishment for any harm or injury to a transgender person, which includes acts of physical, sexual, verbal, emotional, or economic abuse.
Court’s Decision and Observations
After hearing arguments from both sides, the court concluded that Section 69 of the BNS could not be invoked by transgender individuals, as the section explicitly applies to a “woman,” defined as a “female human being of any age.” Justice Sandeep Sharma noted:
“Since under BNS, ‘woman’ and ‘transgender’ have been given different identities and defined independently, Section 69 cannot be applied where the complainant is a transgender person.”
The court further clarified that the term “gender” in BNS includes transgender persons but does not equate them with “woman” for the purposes of Section 69. As a result, the allegations of a false promise of marriage could not lead to prosecution under this section.
However, Justice Sharma acknowledged that the case could proceed under Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019, which deals with offenses against transgender individuals, including deceit and exploitation. He observed:
“The bail petitioner cannot be prosecuted under Section 69 of the BNS; however, he may be held accountable under Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019, which provides for punishment for harm, abuse, or deceit against transgender persons.”
The petitioner, Bhupesh Thakur, was represented by Senior Advocate Mr. Ajay Kochhar, assisted by Mr. Anubhav Chopra. The State was represented by Additional Advocates General Mr. Rajan Kahol, Mr. Vishal Panwar, and Mr. B.C. Verma, along with Deputy Advocate General Mr. Ravi Chauhan. Ms. Bhawna Sharma appeared as the Legal Aid Counsel for the complainant.
The court granted interim bail to Thakur, stating that his continued detention was not justified as his guilt had not yet been established through evidence. The court underscored the principle of presumption of innocence until proven guilty, adding:
“The object of bail is to secure the attendance of the accused at trial, not to punish before conviction.”
The court imposed several conditions on the bail, including regular attendance in court, prohibition from tampering with evidence, and restrictions on leaving the country without permission.
