Allegations Of Outraging Modesty Of Woman Can Be Sustained Even If Victim Is Transgender Woman: Bombay High Court

The offence of outraging modesty of a woman punishable under section 75 of the Bharatiya Nyay Sanhita (BNS) can be sustained even when the victim is a transgender person, who identifies herself as a woman, held the Bombay High Court recently.

Single-judge Justice Mehroz Pathan in an order passed on November 3, refused to discharge one Vishal Ingle, who served in Indian Army as an Agniveer. He was booked for sexually assaulting a transgender person on the promise of marriage and accordingly, the police registered an offence under section 75 (outraging modesty of a woman), section 296 (obscenity) of the BNS and relevant provisions of the Transgender Persons (Protection of Rights) Act, 2019.

The judge noted that the complainant identified herself as a woman and for the same he had been taking medicines for hormonal changes in her body. Whereas, the accused Ingle, vehemently opposed the invocation of section 75 on the ground that the victim was a transgender person and not a woman.

"The Complainant, who is a transgenderbperson, identified herself as a woman and has allegedly undergone hormonal treatment in furtherance of her gender identity...The perusal of the FIR would reveal that there are direct allegations against the Applicant of outraging the modesty of the Complainant, who identifies itself as a woman following hormone therapy Thus, an offence under Section 75 of BNSS appears to be prima facie made out...In my considered opinion, therefore, the allegations of assault and outraging the modesty of a woman can be sustained even where the victim is a transgender person who identifies herself as a woman," the judge held.

Further the judge rejected the argument of the accused that section 18(D) (harming or endangering mental and physical health of a transgender person) of the Transgenders Act is not made out, specially on the ground that the victim had not obtained the mandatory Identity Certificate under the said Act.

The judge pointed out that Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019, indicates that a person may identify as a transgender person, including a transgender man or a transgender woman, even in the absence of a certificate of identity. Section 5 of the Act of 2019 provides an enabling mechanism for making an application to the District Magistrate for the issuance of a certificate of identity.

"The transgender certificate was issued to the victim on February 12 2026, whereas the alleged assault was on October 28, 2025 and October 30, 2025. However, merely because the Complainant did not possess a certificate of identity under Section 6 of the Act of 2019 at the time of the alleged commission of the offence by the Applicant would not, by itself, preclude the invocation of the penal provisions of the Transgender Act of 2019. A perusal of the FIR would show that Section 18(D) of the Transgender Act of 2019 have been rightly invoked, and the allegations therein prima facie attract the provisions invoked against the Applicant," the bench held.

With these observations, the judge refused to discharge the accused.

Appearance:

Advocate Anil Thakkar appeared for the Applicant.

Additional Public Prosecutor Swati Kolhe represented the State.