Image Credit: Isaac Claramunt for UN Women
The Protection of Women from Domestic Violence Act, 2005 (PWDVA) safeguards women against acts of domestic violence through protection orders, residence orders, monetary relief orders, custody orders, and compensation orders, in addition to limited criminal accountability for offenders.
While the PWDVA is only available to women who can be aggrieved persons under section 2(a), the term “woman” is not defined under the PWDVA.
Whether trans women, who are assigned male at birth but identify their gender identity as female would be considered as “women” under section 2(a) of the PWDVA is, therefore, of significance.
The Supreme Court, in National Legal Services Authority v. Union of India, recognized the right of trans persons to self-identify their gender identity as male, female or transgender. The Transgender Persons (Protection of Rights) Act, 2019 and Rules, 2020 provide recognition of trans person’s chosen gender identity as “transgender” initially and thereafter as “male” or “female”.
Trans women recognized as “women” under other laws:
In several cases, High Courts have explicitly recognized trans women as women who are covered under laws for women. In Anamika v. Union of India, the Delhi Police and Delhi High Court recognized that a transgender person identifying as a woman can file a complaint under Section 354-A of the Indian Penal Code, 1860 (IPC) for sexual harassment, which is available only to women.
In Arunkumar & Sreeja v. Inspector General, the Madras High Court held that a trans woman, an intersex person and a transgender person who identifies as a “woman” would be a “bride” under the Hindu Marriage Act, 1955. The court held that this self-determination cannot be questioned by government authorities or require medical surgeries. As the court wonderfully put, the “only consideration is how the person perceives herself.”
PWDVA and Section 498-A, IPC:
The Bombay High Court in Vithal Manik Khatri v. Sagar Sanjay Kamble @ Sakshi Vithal granted recognition of trans women’s rights under the PWDVA. Though in that case the complainant had undergone gender-affirmative surgeries, it still held that a person who has self-identified their gender as a woman is an aggrieved person under Section 2(a) of the PWDVA.
In Vishwanathan Krishna Murthy v. State of Andhra Pradesh, the Andhra Pradesh High Court held that a trans woman who is in a heterosexual marriage can file a complaint under Section 498-A (Cruelty) of the IPC against her husband and his family. Further, the court also recognized that a person’s transgender identity is not conditional upon undergoing any medical or surgical procedure.
Therefore, trans women are covered under the ambit of PWDVA and Section 498-A of the IPC (now Section 85 of the Bharatiya Nyaya Sanhita, 2023).
Relationships covered under the PWDVA:
Under the Section 2(f) of the PWDVA, a woman can seek relief from domestic violence inflicted by persons who are related by marriage or a relationship in the nature of marriage or are her blood relatives, adoptive family members, and joint family members.
While a trans woman can seek protection from acts of domestic violence inflicted by her blood relatives, adoptive family members, and joint family members, the complication lies in seeking remedies against intimate partner violence.
To examine if two individuals shared a relationship in the nature of marriage under the PWDVA, the court, in Indra Sarma v. V.K.V. Sarma, held that it must be considered if, inter alia, the individuals pooled financial resources, shared an intimate sexual relationship, shared domestic responsibilities, and shared a common intention about the nature of relationship.
In Velusamy v. D. Patchaiammal, it was held that for a relationship to be in the nature of marriage, the couple must be of legal age to marry, be otherwise qualified to enter into a legal marriage (including being unmarried), and must have voluntarily cohabited and socially conducted themselves as spouses for a significant period of time.
While the Indian Supreme Court in Supriyo v. Union of India recognized heterosexual marital unions between trans persons, it did not accord the legal right to marriage to non-heterosexual unions.
A trans woman who is in a heterosexual live-in relationship or marriage can, therefore, seek legal remedies under the PWDVA as the parties are either married or are in a relationship akin to marriage that can be solemnized as a legal marriage.
Non-Heterosexual Relationships under the PWDVA:
Trans, lesbian, and bisexual women can share meaningful, intimate relationships with same-sex or transgender partners (not identifying as men) that meet the criteria for relationships in the nature of marriage, as laid down in Indra Sarma. Yet, these relationships may not come qualify as relationships in the nature of marriage under Section 2(f) of the PWDVA because the Supriyo case only accorded legal recognition to heterosexual marital unions.
To meaningfully secure the rights of trans, lesbian, and bisexual women to seek remedies from intimate partner violence, it is, therefore, imperative for these non-heterosexual relationships to also be recognized as relationships “in the nature of marriage” under the PWDVA.
This blog is written by our Research Associate Priyanka Sunjay.