The Himachal Pradesh High Court recently granted bail to a man accused of engaging in a sexual relationship with a transgender person under the false promise of marriage.

The Court noted that Section 69 of the Bharatiya Nyaya Sanhita (BNS), which penalizes deceitful sexual intercourse on a false promise of marriage, can only be invoked if the complainant is a woman.

The Single-Judge Bench of Justice Sandeep Sharma granted bail to the accused, who was booked under Section 69 of the BNS and Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019.

The Court observed that transgender persons, though included in the definition of 'gender' under Indian law, cannot claim the legal identity of either male or female in cases pertaining to Section 69 of the BNS, which specifically applies to women. "In aforesaid provision of law, it has been categorically provided that whoever by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term, which may extend to ten years and shall also be also liable to pay fine," it said.

The case revolved around the complainant, a transgender person who alleged that during the COVID-19 lockdown, she had met the accused through Facebook, after which they had developed a relationship. She claimed that although the accused was aware of her gender identity, he promised to marry her, and his parents advised her to undergo a sex change operation. Despite undergoing the surgery, she alleged that the accused ultimately refused to marry her and had arranged his marriage with someone else.

The Single-Judge, after examining the provisions of the BNS, concluded that Section 69 could not be applied in this case because it only pertains to women. The Court noted that the BNS clearly defines "woman" and "transgender" separately, granting them distinct legal identities. Since the complainant had admitted to being a transgender person, the Court agreed with the defense counsel’s argument that Section 69 could not be invoked against the accused.

The Court also addressed the timeline of events, noting that any physical relationship between the complainant and the accused had allegedly occurred before the complainant’s sex change surgery, further weakening the applicability of Section 69. However, the Court did acknowledge that the accused could still face charges under Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019, which penalizes physical or sexual abuse of transgender persons with imprisonment ranging from six months to two years.

The Bench further remarked that the accused had cooperated with the investigation, and there was no indication that he had engaged in any sexual relationship with the complainant after her surgery. Additionally, the Court found no evidence to suggest that the accused had made an attempt to develop a physical relationship after the complainant's alleged sex change, nor was there any requirement to recover further evidence from the accused.

"While the case shall be decided by the lower court based on the totality of the evidence collected, there appears to be no justification for this Court to send the bail petitioner into judicial custody, especially when nothing remains to be recovered from him," the Court said in its order.

In July, the accused had been arrested following the complaint by the transgender person. His legal team argued that the claim regarding the sex change was yet to be conclusively established, as the complainant had refused a medical examination. The Court had previously granted interim bail, and this recent order confirmed the bail, while leaving the final decision on the merits of the case to the lower court.

Cause Title: Bhupesh Thakur v. State of Himachal Pradesh [Neutral Citation No. 2024:HHC:7806]

Appearance:-

Petitioner: Senior Advocate Ajay Kochhar, Advocate Anubhav Chopra

Respondent: Additional Advocates General Rajan Kahol, Vishal Panwar, BC Verma, Deputy Advocates General Ravi Chauhan, Advocate Bhawna Sharma

Click here to read/download the Judgment


Justice Sandeep SharmaHimachal Pradesh High Court

Sukriti Mishra