Himachal Pradesh HC clarifies Section 69 of BNS is not applicable to transgenders [Read Order]

Himachal Pradesh: The Himachal Pradesh High Court has delivered a significant order clarifying that Section 69 of the Bharatiya Nyaya Sanhita (BNS) 2023, which penalizes sexual intercourse under a false promise of marriage, cannot be invoked by transgender individuals.

A Single Judge Bench of Justice Sandeep Sharma confirmed the interim bail of an accused while explaining the actual mandate of Section 69 of the BNS.

The court noted that the complainant, who identified as transgender, had filed a case against the accused under Section 69 of the BNS and Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019.

Rejecting the applicability of Section 69 in this case, the court observed:
“Having perused the aforesaid provision of law, coupled with the statement of the victim-prosecutrix recorded under Sections 154 and 164 of the CrPC, wherein she specifically admitted herself to be a transgender, there appears to be merit in the contention of Sh. Ajay Kochhar, learned Senior Counsel appearing for the petitioner, that no case, if any, is made out against the petitioner under Section 69 of the BNS.”

The court further clarified that, as per the BNS, “woman” and “transgender” have been given different identities and are defined independently. It stated:
“Since under the BNS, ‘woman’ and ‘transgender’ have been given different identities and are defined independently under Section 2, coupled with the fact that the physical relationship between the victim-prosecutrix and the bail petitioner, if any, was developed prior to the surgery of the victim-prosecutrix, whereby she allegedly got her sex changed, there appears to be force in the claim of the bail petitioner that he could not have been booked under Section 69 of the BNS. Rather, he is required to be dealt with in terms of Section 18(d) of the Act.”

Expressing its view on the scope of Section 69, the court stated that it can only be invoked if the complainant is a woman, as defined under the BNS.

The court directed that the interim bail granted to the accused be made absolute, subject to certain conditions. It clarified that any observations made in the order should not be construed as a reflection on the merits of the case.

In conclusion, while confirming the interim bail and clarifying the inapplicability of Section 69 of the BNS to transgender individuals, the court directed that the case should proceed under the relevant sections of the Transgender Persons (Protection of Rights) Act, 2019.
 

[Read Order]