One can file case under DV Act after changing gender to female: HC

The Bombay High Court has held that a transgender woman who had undergone a sex re-assignment surgery can file a complaint under the Domestic Violence Act.

The court also held that the person has aright to seek interim maintenance in a domestic violence case.

The order was passed by Justice Amit Borkar, while dismissing a man's petition challenging the maintenance awarded to his wide, a transgender.

:The transgender who has performed surgery to change gender to a female, needs to be termed as an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act, 2005. It is, therefore, held that a person who has exercised his right to decide the self-identified gender of women is an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act, 2005," Justice Borkar ruled.

The court also held that the term aggrieved person under Section 2(a) of the Domestic Violence Act 2005 has to be given a broad interpretation as the purpose of the Act is to protect women from domestic violence.

"The object and purpose of the provisions of the Domestic Violence Act 2005 is to provide more effective protection of the right of the women guaranteed who is victims of violence of any kind that occurs within the family...Therefore, while interpreting the definition of aggrieved persons in tune with the object and purpose of the Act, such definition needs to be interpreted with the broadest possible terms", the Bombay High Court held.

The petitioner had married the respondent a transgender woman who had a sex reassignment surgery in 2016. The respondent filed a case under the Domestic Violence Act and sought maintenance. The same was granted by the Judicial Magistrate First Class, while the Additional Sessions Judge had upheld the order.

The petitioner then decided to approach the High Court.

It was contended by the petitioner that the respondent does not fall within the definition of 'aggrieved person' as it only includes women in a domestic relationship. He also said that the respondent does not have a certificate under Section 7 of the Transgender Persons (Protection of Rights) Act 2019. Hence the respondent cannot be treated as a woman under the Domestic Violence Act, the petitioner contended.

The respondent however said that the Supreme Court had recognised the right of a transgender person who has changed his or her sex according to his or her gender identity to be granted recognition to the gender identity based on the reassigned sex.

"The word 'woman' in section 2(a) is no more limited to the binary of women and men and includes the transgender person also who has changed her sex in tune with her gender characteristics", the Bombay High Court held.