Transgender becoming woman after surgery can seek relief under Domestic Violence Act: Bombay High Court

There's no doubt that a transgender or either a male or female who has undergone a sex change operation is entitled to the gender of their choice, the order said

A transgender who chooses to be a woman by undergoing gender reassignment surgery can seek relief under the Domestic Violence Act, the Bombay High Court has ruled upholding a lower court order directing a man to pay maintenance to his estranged wife, who was initially a transgender person.

A single bench of Justice Amit Borkar in the order of March 16, a copy of which was available on Friday, said the word “woman” is no more limited to the binary of women and men and also includes transgenders who have changed their sex in tune with how they identify themselves.

Justice Borkar noted that section 2(f) of the DV Act that defines a domestic relationship is gender neutral and hence includes persons irrespective of their sexual preferences.

There is no manner of doubt that a transgender or either a male or female who has undergone a sex change operation is entitled to the gender of their choice, the order said.

“The object and purpose of the provisions of the Domestic Violence Act is to provide more effective protection of the rights of the women who are victims of violence of any kind that occurs within the family,” it said.

The bench further noted that the need to pass such legislation was because the existing law was inadequate to address a woman who was subjected to cruelty by her husband and their family.

It added that the word ‘woman’ is no more limited to the binary of women and men and also includes transgender persons who have changed their sex in tune with “their gender characteristics”.

“Therefore, in my opinion, a transgender person who has undergone surgery to change their gender to female needs to be termed as an aggrieved person within the meaning of the Domestic Violence Act,” the court said.

The man in his plea had challenged an October 2021 order of a sessions court upholding a magistrate's court directive asking him to pay Rs 12,000 monthly maintenance to his estranged wife, who was initially a transgender person.

The wife had filed proceedings against her estranged husband as a woman under the DV Act.

According to the estranged wife, she became a woman in 2016 from a transgender person after undergoing a gender reassignment surgery.

The same year, the couple got married but differences arose two years later following which she filed an application before a magistrate' court seeking maintenance under the DV Act.

The husband in his petition in HC claimed that his wife did not fall within the definition of aggrieved person as such right has been conferred only on “women” in a domestic relationship.

The wife's lawyer Vrushali Laxman Maindad argued that after the surgery the wife recognised her gender as female.

Dismissing the husband's plea, the HC directed the husband to clear all arrears of maintenance within four weeks.