Transgender Woman Not a ‘Woman’ under Section 69 BNS

Source: Allahabad High Court

Why in News? 

Justice Arun Kumar Singh Deshwal of the Allahabad High Court decided Mohd Saakir @ Mohd Sakir v. State of U.P. (2026). The Court held that a transgender woman, even after sex-reassignment surgery, would not fall within the statutory definition of ‘woman’ under Section 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS). Holding that prima facie no offence under Section 69 BNS was made out, the Court granted bail to a man accused of establishing a physical relationship with a transgender woman on a false promise of marriage. 

What was the Background of Mohd Saakir @ Mohd Sakir v. State of U.P. (2026) Case? 

• The informant, a transgender woman, had been in a relationship with the applicant for more than one and a half years on his promise to marry her. 
• She alleged that he later refused to marry her after taking more than ₹5 lakh from her. 
• The FIR further alleged that he had established a physical relationship with her on a false promise of marriage. 
• The applicant sought bail. His counsel submitted that:  
  • In her statements under Sections 180 and 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the informant stated that she was assigned male at birth and had undergone vulval reconstruction surgery on 11th April 2023. 
  • She had disclosed her transgender identity to the applicant before entering into the relationship. 
  • A medical panel report dated 19th August 2026 did not find her to be female, but a male with changed genital parts and without a uterus. 
  • Section 69 BNS requires the victim to be a woman, and Section 2(35) BNS defines a woman as only a female human being. 
• The State opposed the bail application, arguing that a transgender woman should not be excluded from the definition of woman merely because she was assigned male at birth and later underwent surgery. 
• Considering the importance of the legal question, the Court appointed Advocate Mayuri Mehrotra as amicus curiae. She submitted that:  
  • Relying on the Andhra Pradesh High Court’s judgment in Viswanathan Krishnamurthy v. State of Andhra Pradesh, a trans woman cannot be excluded from the definition of woman. 
  • Under the Transgender Persons (Protection of Rights) Amendment Act, 2026, a transgender woman who obtains a post-surgery certificate would be covered within the definition of woman. 
• The question before the Court was whether a transgender woman would be deemed a ‘woman’ for the purpose of Section 69 BNS. 

What were the Court’s Observations? 

On the definition of ‘woman’ under the BNS: 

• Section 2(35) BNS defines ‘woman’ as a female human being of any age. 
• Section 2(10) BNS recognises male, female and transgender as genders, and adopts the definition of “transgender person” under the Transgender Persons (Protection of Rights) Act, 2019. 

On the applicable law: 

• Since the alleged incident took place before the amendment dated 30th March 2026, the unamended Section 2(k) of the 2019 Act would apply. 
• This definition includes trans men and trans women irrespective of whether they have undergone sex-reassignment surgery or hormone therapy. 

On the separate identity of transgender persons: 

• A transgender person has a separate identity under the 2019 Act. 
• A person assigned male at birth who becomes female after sex-reassignment surgery, or a person assigned female at birth who becomes male after such surgery, remains a transgender person, and not a male or female human being. 
• The word ‘woman’ in Section 69 BNS includes only a female human being. 
• Hence, a transgender woman does not fall within the definition of ‘woman’ under Section 69 BNS, even after sex-reassignment surgery. 

On the protection available to transgender persons: 

• The Court referred to Section 18(d) of the 2019 Act, which deals with acts causing harm or injury to a transgender person, including physical and sexual abuse. 

On legislative intent: 

• Report No. 246 of the Parliamentary Standing Committee on Home Affairs had recommended bringing transgender women within the purview of the rape provisions of the BNS through an appropriate amendment. 
• Parliament did not accept this recommendation, and the definition of ‘woman’ remained unchanged. 

On the scope of the ruling: 

• The Court clarified that its observation is confined to the interpretation of ‘woman’ under Section 69 BNS and not for any other offence. 

Conclusion: 

• The Court held that prima facie no offence under Section 69 BNS was made out and granted bail to the applicant, subject to conditions. 
• The Court appreciated the assistance of the amicus curiae and directed the High Court Legal Aid Services Committee to pay her ₹10,000 towards her fee.

What is Section 69 of the BNS? 

About: 

• Section 69 of the Bharatiya Nyaya Sanhita, 2023 deals with sexual intercourse by employing deceitful means. 
• It is a new provision with no direct corresponding section in the Indian Penal Code, 1860. Under the IPC, such cases were generally dealt with under Section 375 read with Section 90 (consent given under misconception of fact). 

Provision: 

• Whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling it, has sexual intercourse with her, such sexual intercourse not amounting to rape, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 
• Explanation: “Deceitful means” includes inducement for, or false promise of, employment or promotion, or marrying after suppressing identity. 

Essential Ingredients: 

• The victim must be a ‘woman’ as defined under Section 2(35) BNS. 
• Sexual intercourse must be obtained by deceitful means or by a promise to marry made without any intention of fulfilling it. 
• The act must not amount to the offence of rape. 

Related Provisions 

Section 2(35) BNS – Woman: 

• “Woman” means a female human being of any age. 

Section 2(10) BNS – Gender: 

• The pronoun “he” and its derivatives are used for any person, whether male, female or transgender. 
• “Transgender” has the meaning assigned to it under Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019. 

Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019 (unamended) – Transgender Person: 

• A person whose gender does not match the gender assigned at birth. 
• Includes trans men and trans women (whether or not they have undergone sex-reassignment surgery, hormone therapy, laser therapy or any other therapy), persons with intersex variations, genderqueer persons, and persons with socio-cultural identities such as kinner, hijra, aravani and jogta. 

Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019: 

• Penalises harming, injuring or endangering the life, safety, health or well-being (mental or physical) of a transgender person, including physical, sexual, verbal, emotional and economic abuse. 
• Punishment: imprisonment of not less than six months, which may extend to two years, along with fine.