The Allahabad High Court has held that a transgender woman, even after undergoing sex reassignment surgery, does not fall within the statutory definition of a “woman” under Section 69 of the Bharatiya Nyaya Sanhita (BNS), which penalises sexual intercourse through deceitful means or on a false promise of marriage. A single-judge bench comprising Justice Arun Kumar Singh Deshwal ruled that under the statutory framework of the BNS read with the Transgender Persons (Protection of Rights) Act, 2019, the category of “transgender” has been codified as a distinct identity separate from a “female human being,” and accordingly granted bail to an accused facing prosecution under Sections 69, 352, and 351(3) of the BNS.
Background of the Case
The ruling came upon Criminal Misc. Bail Application No. 36167 of 2026, moved by applicant Mohd Saakir alias Mohd Sakir in connection with Case Crime No. 0728 of 2026 registered at Police Station Izzatnagar, Bareilly District.
According to the First Information Report (FIR), the first informant—a transgender woman—alleged that she was in a relationship with the applicant for more than a year and a half based on his promise to marry her. She alleged that the applicant established physical relations under the false promise of marriage, took a sum exceeding Rs. 5 lakh from her, and later refused to marry her while his family members scolded her.
In her statement recorded under Section 180 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the informant stated that she was assigned male at birth and had undergone vulval reconstruction surgery on April 11, 2023, to become female. When the applicant met her at a marriage ceremony, he proposed to her, after which they entered into a relationship and established physical relations before the applicant and his family refused the marriage. In her subsequent statement under Section 183 of the BNSS, she stated for the first time that prior to entering into the relationship, she had informed the applicant of her status as a transgender woman, but the applicant remained willing to maintain the relationship and engaged in sexual relations before backing out despite taking a large sum of money.
Arguments of the Parties and Amicus Curiae
Learned counsel for the applicant argued that according to a medical panel report dated August 19, 2026, the informant was not found to be female, but rather a male with altered genital parts and without a uterus. Counsel submitted that to attract the ingredients of Section 69 of the BNS, the victim must strictly be a “woman” as defined under Section 2(35) of the BNS, which encompasses only a female human being.
It was further contended that under Section 2(10) of the BNS, gender includes male, female, or transgender, with “transgender” taking its meaning from Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019. Consequently, an individual assigned male at birth who alters their genitalia through surgery remains a transgender person and does not fall within the definition of a “woman” under Section 2(35) of the BNS. Counsel also highlighted that the informant had refused a medical examination for sexual assault and contended that the applicant had been falsely implicated.
Opposing the bail plea, the learned Additional Government Advocate (A.G.A.) submitted that after undergoing genital reassignment, a person born male who has female hormones falls within the definition of a woman despite the absence of a uterus. The State argued that the term “transgender female” does not exclude an individual from the definition of a woman if surgery has been undergone, and that allegations of establishing physical relations on a false promise of marriage prima facie constituted an offence. The A.G.A. also pointed out that the informant had not submitted any application to change their legal gender and remained registered as “Sudhir Das” with male gender in official records.
Taking note of the substantial legal question involved, the High Court appointed Advocate Ms. Mayuri Mehrotra as amicus curiae. The amicus curiae brought to the Court’s attention the Andhra Pradesh High Court judgment in Viswanathan Krishnamurthy v. State of Andhra Pradesh, which held that a transgender woman cannot be excluded from the definition of a woman despite lacking reproductive capacity, and that cruelty against a transgender woman falls under Section 498A of the IPC.
She also cited the Uttarakhand High Court judgment in X v. State of Uttarakhand and Others, which followed the Supreme Court ruling in National Legal Services Authority (NALSA) v. Union of India to hold that identity cannot be decided solely on biological categorization and must factor in a person’s psyche. However, the amicus curiae also pointed out that under Section 2(k) of the Transgender Persons Act, 2019, the definition of a transgender person includes an individual even after sex reassignment surgery, and highlighted that Section 18(d) of the 2019 Act provides a specific penalty of up to two years’ imprisonment for physical or sexual abuse against a transgender person.
The Court’s Legal Analysis
The single-judge bench framed the core issue: “Whether transgender woman would be deemed to be woman for the purpose of Section 69 of BNS.”
The Court examined Section 69 of the BNS, which penalises sexual intercourse by deceitful means or under a false promise of marriage with a “woman.” Justice Deshwal observed that under Section 2(35) of the BNS, a “woman” is defined as “a female human being of any age.”
In contrast, Section 2(10) of the BNS defines “gender” as using the pronoun “he” and its derivatives for any person, whether male, female, or transgender, explicitly adopting the definition of transgender under Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019. Under the unamended Section 2(k) applicable on the date of the alleged incident, a transgender person includes trans-men and trans-women irrespective of whether they have undergone sex reassignment surgery or hormone therapy.
Interpreting the interplay between these provisions, the Court observed:
“From the above definition of gender, it is clear that transgender is neither male or female, it has separate identity as mentioned in Section 2(k) of the Act, 2019. As per Section 2(k) of the Act, 2019, transgender person would include a person whose gender does not match with the gender assigned to him at the time of birth and the transgender includes trans-man or trans-woman, even if such person has undergone sex reassignment surgery…”
The bench elaborated further:
“The above definition of transgender person clearly shows that even if a person was assigned gender as a male at the time of birth and after sex reassignment surgery, he became female or if a person was assigned gender as a female at the time of birth and after sex reassignment surgery, he became male then it is clear that transgender man/woman will still be a transgender and not the male human being or female human being. The word ‘woman’ mentioned in Section 69 of BNS includes only female human being.”
Addressing the legal remedies available in cases of abuse against transgender individuals, the Court noted that Section 18(d) of the 2019 Act contains a specific provision prescribing imprisonment extending up to two years for physical or sexual abuse.
The bench referred to the Himachal Pradesh High Court decision in Bhupesh Thakur v. State of Himachal Pradesh (2024), which noted that because the BNS assigns separate statutory definitions to “woman” and “transgender,” an accused could not be booked under Section 69 of the BNS and would instead need to be dealt with under Section 18(d) of the 2019 Act.
Distinguishing earlier jurisprudence, the Court noted that the Uttarakhand High Court ruling in Ms. X v. State of Uttarakhand (under Section 377 IPC) predated the enforcement of the BNS, wherein transgender identity has been codified distinctly from male and female. Similarly, the bench noted that the Andhra Pradesh High Court’s decision in Viswanathan Krishnamurthy did not have occasion to consider the definitions of “gender” and “woman” as enacted under the new codes.
Justice Deshwal also adverted to legislative background, observing that Parliamentary Standing Committee on Home Affairs Report No. 246 (presented in December 2023) had specifically recommended amending the BNS to bring transgender women within the ambit of offences created for women. The Court pointed out that Parliament did not accept this recommendation, retaining the word “woman” in the BNS without including transgender women.
The Court 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.”
Decision and Bail Conditions
Applying these principles to the facts, the Court noted that the informant was assigned male at birth, underwent surgery to become a trans-woman, and had not applied to alter gender records before the competent authority. The Court held that prima facie no case under Section 69 of the BNS was made out, entitling the applicant to bail, while clarifying that its interpretation was confined strictly to Section 69 of the BNS.
The High Court directed that applicant Mohd Saakir alias Mohd Sakir be released on bail upon furnishing a personal bond with two sureties, subject to conditions that he will not tamper with evidence or threaten witnesses, will sincerely cooperate with the investigation and trial, and will refrain from criminal activity.
The trial court was directed to transmit the release order to Bareilly Jail through the Bail Order Management System (BOMS) and via e-prison portal within 24 hours, in compliance with Supreme Court directions. The Court also awarded an amicus curiae fee of Rs. 10,000 to Advocate Ms. Mayuri Mehrotra, payable by the High Court Legal Aid Services Committee.
Case Details:
Case Title: Mohd Saakir @ Mohd Sakir v. State of U.P.
Case No.: Criminal Misc. Bail Application No. 36167 of 2026
Bench: Justice Arun Kumar Singh Deshwal
Date: October 15, 2026
