The Allahabad High Court has held that a transgender woman, even after undergoing sex-reassignment surgery, would not fall within the statutory definition of 'woman' under Section 69 BNS (Sexual intercourse by employing deceitful means etc.)

Section 69 BNS prescribes punishment for sexual intercourse with a woman by employing deceitful means or making a promise to marry without any intention of fulfilling it, where the act does not amount to rape.

A bench of Justice Arun Kumar Singh Deshwal thus granted bail to a man who was accused of establishing a physical relationship with a transgender woman on a false promise of marriage and subsequently refusing to marry her.

The Court was of the view that a transgender person has a separate identity under the Transgender Persons (Protection of Rights) Act, 2019.

"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".

Case in brief

As per the allegations, the informant, a transgender woman, had been in a relationship with the applicant for more than 1.5 years on his promise to marry her.

It was alleged that he subsequently refused to marry her after taking more than ₹5 lakh. The FIR further alleged that he had established a physical relationship with her on a false promise of marriage.

The applicant's counsel submitted that the informant had stated in her statements under Sections 180 and 183 BNSS that she was assigned male at birth and had undergone vulval reconstruction surgery on April 11, 2023.

It was also submitted that she had disclosed her transgender identity to the applicant before entering into the relationship.

Relying on a medical panel report of August 19, 2026, the applicant's counsel argued that the alleged victim was not actually found to be female, but a male with the changed genital parts without a uterus.

It was, therefore, submitted that to attract the ingredients of Section 69 BNSS, the victim should be a woman, and the word 'woman' has been defined under Section 2(35) of BNS wherein only a female human being is considered as a woman.

The State, on the other hand, opposed the bail application. It argued that a transgender woman should not be excluded from the definition of woman merely because she was assigned male at birth and had subsequently undergone surgery.

Given the important legal question at stake, the bench appointed Advocate Mayuri Mehrotra as amicus curiae. She relied upon Andhra Pradesh High court's judgment in Viswanathan Krishnamurthy Vs. State of Andhra Pradesh to submit that a trans woman cannot be excluded from the definition of woman.

She also submitted that, under the latest amendment to the Transgender Persons (Protection of Rights) Amendment Act, 2026, if she obtains a post-surgery certificate, she would be covered within the definition of woman.

Against the backdrop of these submissions, the bench noted that the primary question before it was : Whether transgender woman would be deemed to be woman for the purpose of Section 69 of BNS.

High Court's observations

At the outset, the Court referred to Section 2(35) BNS which defines 'woman' as "a female human being of any age".

It also examined Section 2(10) BNS, which recognises male, female and transgender genders and incorporates the definition of “transgender person” under the Transgender Persons (Protection of Rights) Act, 2019.

The Court held that the unamended Section 2(k) of the 2019 Act applied because the alleged incident took place before the amendment dated March 30, 2026.

This definition includes transgender men and women irrespective of whether they have undergone sex-reassignment surgery or hormone therapy.

Thus, the Court concluded that a transgender woman does not fall within the definition of 'woman' under Section 69 BNS, even after sex-reassignment surgery.

In its order, the bench also referred to Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019, which deals with acts causing harm or injury to a transgender person, including physical and sexual abuse.

The Court also referred to Report No. 246 of the Parliamentary Standing Committee on Home Affairs, which had recommended bringing transgender women within the purview of the rape provisions of the BNS through an appropriate amendment.

The Court noted that Parliament did not accept the recommendation, and the definition of 'woman' remained unchanged.

Against this backdrop, the High Court held that, prima facie, no offence under Section 69 BNS was made out and hence, it granted bail to the applicant, subject to conditions. The Court expressly clarified thus:

"It is made clear that above observation is confined to the interpretation of woman under Section 69 of BNS and not for any other offence"

The Court appreciated the assistance rendered by amicus curiae Mehrotra and directed the High Court Legal Aid Services Committee to pay her ₹10,000 towards her fee.