Name of the Case: Vithal Manik Khatri v Sagar Sanjay Kamble @ Sakshi Vithal Khatri and Anr.
Coram: Amit Borkar, J.
Date of the judgment: 16.03.2023
Introduction
This judgment pertains to the question of whether a woman who was subsequently determined so by a gender conversion surgery should be recognised as female under the provisions of the DV Act, 2005.
Facts of the Case
Respondent No. 1 was a transgender initially, before she underwent a surgery and got married to the Petitioner.
Respondent No. 1 underwent a gender conversion surgery on June 1, 2016 to change her gender from a transgender to that of a female on June 1, 2016.
Subsequently, Respondent No. 1 got married to the Petitioner which took place on July 21, 2016.
Respondent No. 1 filed a Criminal Miscellaneous Application [CRM] No.573 of 2018 in accordance with the Domestic Violence Act, 2005, [hereinafter “DV Act”] due to disagreements that arose between the parties post-marriage.
While the proceedings under the DV act progressed, Respondent No. 1 submitted a request for temporary maintenance against the Petitioner.
By a ruling dated November 11, 2019, the Judicial Magistrate First Class in Baramati mandated payment of Rs. 12,000 per month beginning from the date of application that would be payable by the Petitioner.
As a result, the petitioner who was aggrieved, filed an appeal before the learned Additional Sessions Judge, Baramati, who upheld the Order dated November 11, 2019 passed by Judicial Magistrate First Class, Baramati in Miscellaneous Application No.573 of 2018.
Feeling aggrieved once again, the Petitioner has filed the current Writ Petition against the Respondent 1.
Issue(s)
Whether a transgender person who converts himself/herself into a woman by performing surgery can be termed as an aggrieved person within the meaning of Section 2(a) of the DV Act, 2005?
Whether the compensation awarded is disproportionate in nature, and therefore should the same be revoked?
Analysis
The arguments put forth by the Petitioner, the respondent does not fall within the definition of aggrieved person as such right has been conferred on "women" in a domestic relationship:
(a) it was submitted that there was certificate issued to her under Section 7 of the Transgender Persons (Protection of Rights) Act, 2019, which is against the claim of being a woman under the provisions of the DV Act, 2005 ;
(b) there was no cogent evidence of the petitioners' income on the basis of which the temporary maintenance could have been allowed.
The arguments put forth by the Respondent, the respondent does fall within the definition of aggrieved person as such right has been conferred on "women" in a domestic relationship :
(a) that the right of transgender persons to self – identify has been constitutionally recorded in the NALSA judgment [2014] and any change in sex/gender has to be granted due recognition after reassigned SRS surgery and;
(b) that the petitioner's income exceeds Rs. 25,000/- per day; therefore, the direction to pay Rs.12,000/- is legal and proper.
As far as the first issue is concerned, the Court noted that the word ‘woman’ in section 2(a) of the DV Act is not limited to the binary of women and men and includes the transgender person also who has changed her sex in tune with her gender characteristics. The connotation of gender is not a factor in Section 2(f) of the Act, which includes people regardless of their sexual preferences. Victims of domestic violence have the right to make a maintenance claim under Section 23 of the Domestic Violence Act, 2005.
Transgender people are defined in Section 2(k) of the Transgender People (Protection of Rights) Act, 2019. Regardless of whether these individuals, have undergone sex/gender reassignment surgery, including those with intersex variations, Section 7 allows a person who has undergone such surgery to submit an application to the District Magistrate for change of such gender and henceforth thus be recognised towards the same.
The goal of the Domestic Violence Act of 2005 is to more effectively safeguard the rights of women who become victims of violence, whether physical, mental, financial or even otherwise that otherwise take place within the family. Domestic abuse has been acknowledged as a severe barrier to development and a human rights concern by the Vienna Agreement of 1994, the Beijing Declaration, and the Platform for Action (1995).
In order to address a woman who has been and continues to be subjected to cruelty by her husband and other family members in recognition of her fundamental rights guaranteed under Articles 14, 15, and 21 of the Indian Constitution, legislations like the Protection of Women from Domestic Violence Act had to be passed and have to be subsequently upheld harmoniously with the other laws. Hence, the concept of "aggrieved persons" must be read in the broadest sense feasible while still being consistent with the Act's intent and purpose.
As a result, concurring with the Hon’ble Court’s opinion, a transgender person who underwent surgery to become a woman must be considered an aggrieved person for purposes of Section 2(a) of the Domestic Violence Act, 2005. Hence, it is decided that someone who has exercised their right to determine the self-identified gender of women is an aggrieved person as defined by Section 2(a) of the Domestic Violence Act, 2005.
As far as the second issue is concerned, the respondent no. 1 has testified under oath that the petitioner owns sweet shops and a snack centre, from which he earns between Rs. 25,000 and Rs. 30,000 per day. In Baramati, they also own sizeable portions of immovable property. The Hon’ble judge noted that the courts used their discretion to award a sum of Rs. 12,000 a month, which was reasonable, on account of declarations and the evidence on file that have been submitted.
Conclusion
It is no surprise that the Courts have tried to harmoniously interpret the provisions of the DV Act and the Transgender act in light of the NALSA judgment in 2014 [paras 105 and 129 of the judgment]. The intention has been to broaden the impact of the social legislations in place and therefore the distinction between the binary of men and women or sex and gender as fluid concepts. This is also in line with the constitutional intent and scheme and with the dynamic changes evolving in society that the law is taking into its consideration and folds. This can be also seen in the meaning of “domestic relationships under the DV Act” where live – in relationships are also now being recognised. Therefore, it is clear that the social and legal concepts are undergoing a complete rehaul in the interest of justice and human rights.
Submitted by,
Sampurna Mukherjee,
Symbiosis Law School, Pune.
Views expressed are author's own.
Image credits: https://abuserefuge.org/non-binary-abuse/