Court says a trans-woman, even after sex reassignment surgery, remains within the statutory category of “transgender” under current law; finds prima facie offence under Section 69 BNS not made out
The Allahabad High Court has granted bail to Mohd Saakir @ Mohd Sakir in a case alleging sexual relations on a false promise of marriage, holding that a transgender woman does not fall within the definition of “woman” for the limited purpose of Section 69 of the Bharatiya Nyaya Sanhita, 2023.
Justice Arun Kumar Singh Deshwal passed the order on October 15, 2026, in Criminal Misc. Bail Application No. 36167 of 2026 arising out of Case Crime No. 0728 of 2026 registered at Izzatnagar police station in Bareilly district.
According to the FIR, the first informant, who described herself as a transgender woman, alleged that she had been in a relationship with the applicant for over one and a half years. She claimed the applicant established physical relations with her on a promise of marriage, took more than Rs. 5 lakh from her, and later refused to marry. The FIR also alleged that the applicant’s family members insulted her.
During the hearing, the applicant argued that the informant had admitted in her statements under Sections 180 and 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023, that she was born male and later underwent sex reassignment surgery. The defence also relied on a medical report stating that the informant was not found to be biologically female and had no uterus, though genital reconstruction had been done.
The key legal issue before the court was whether a transgender woman could be treated as a “woman” under Section 69 BNS, which criminalises sexual intercourse with a woman obtained by deceitful means or a false promise of marriage.
The court examined Section 2(35) of the BNS, which defines “woman” as a “female human being of any age,” and Section 2(10), which separately recognises male, female and transgender under the definition of “gender.” The court further referred to Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019, which states that a transgender person includes a trans-man or trans-woman, whether or not such person has undergone sex reassignment surgery.
On this basis, the High Court held that under the present statutory framework, a trans-woman continues to be included in the category of “transgender” and not “woman” as defined in Section 2(35) BNS. The judge said that, for the specific offence under Section 69 BNS, the term “woman” could not be judicially expanded to include a transgender woman when Parliament had separately recognised “transgender” as a distinct category.
The court also noted that Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019 specifically provides punishment for physical or sexual abuse of a transgender person, with imprisonment up to two years. This, the court said, showed that the statutory scheme maintains a distinction between “woman” and “transgender.”
While an amicus curiae appointed by the court cited earlier decisions, including rulings of the Uttarakhand and Andhra Pradesh High Courts, to argue for a broader interpretation, the Allahabad High Court found those decisions distinguishable because they were delivered before the BNS came into force or did not consider the new definitions in the BNS.
The court also referred to the Parliamentary Standing Committee on Home Affairs, which had recommended that transgender women be brought within the scope of rape provisions under the BNS. However, since Parliament did not amend the law accordingly, the court said it could not enlarge the meaning of “woman” in Section 69.
On the facts of the case, the court observed that the informant had stated she disclosed her transgender status to the applicant at the time of the relationship. It also noted the Chief Medical Officer’s report that no application had been made for formal change of gender in official records. In these circumstances, the court concluded that no prima facie case under Section 69 BNS was made out.
The High Court clarified that its observations were confined to the interpretation of “woman” under Section 69 BNS and should not be read as applying to other offences.
Granting bail, the court directed that the applicant be released on furnishing a personal bond and two sureties, subject to conditions including non-tampering with evidence, cooperation in trial, and refraining from criminal activity. It also directed prompt transmission of the release order through the Bail Order Management System to ensure early release.
The court recorded appreciation for the assistance of amicus curiae Ms. Mayuri Mehrotra and directed payment of Rs. 10,000 to her through the High Court Legal Aid Services Committee.
Bottom Line:
Bharatiya Nyaya Sanhita, 2023, Section 69 - Bail - Transgender woman, even after sex reassignment surgery, would continue to fall within the category of "transgender" and not "woman" as defined in Section 2(35) BNS for the limited purpose of Section 69 BNS - Prima facie offence under Section 69 BNS not made out - Bail granted.
Statutory provision(s): Section 69 BNS, Section 352 BNS, Section 351(3) BNS, Section 2(35) BNS, Section 2(10) BNS, Section 180 BNSS, Section 183 BNSS, Section 2(k) Transgender Persons (Protection of Rights) Act, 2019, Section 18(d) Transgender Persons (Protection of Rights) Act, 2019
Mohd Saakir @ Mohd Sakir v. State of U.P., (All) : Law Finder Doc id # 2998883
