The Supreme Court is currently considering an appeal made by a man against a decision made by the Bombay High Court. The High Court held that a person who has exercised the Right to self-identify as a woman is considered an “aggrieved person” under Section 2(a) of the Act.
The Supreme Court of India is set to make a crucial decision in January 2025 regarding the eligibility of a transgender woman to seek maintenance under the Protection of Women from Domestic Violence Act, 2005 (DV Act).
The Supreme Court is currently considering an appeal made by a man against a decision made by the Bombay High Court. The High Court held that a person who has exercised the Right to self-identify as a woman is considered an “aggrieved person” under Section 2(a) of the Act.
A Bench of Justice Vikram Nath and Justice Rajesh Bindal granted leave and listed the matter for January 2025.
The top court also sought responses from the concerned parties.
In March of this year, the Bombay High Court rejected a man’s petition that questioned whether the provisions of the DV Act applied to his wife. The wife, who was reportedly a transgender individual before their marriage and had undergone sex reassignment surgery, was the subject of this legal challenge.
The High Court had also upheld a magistrate court order granting interim maintenance of ₹12,000 per month to the respondent.
“…the provisions of the Domestic Violence Act, 2005 are gender specific and the legislature has not till date expanded the scope of the legislation. It is submitted that even the provisions of the Transgender Protection Act, 2019 are not automatic in nature, and unless the prescribed due process has been followed, the beneficial provisions of the legislation cannot be availed, as otherwise, it will give rise to its misuse and abuse,” the plea stated.
The husband has made an additional argument in his plea, stating that the transgender woman in question does not meet the requirements to be considered a “aggrieved person” under the Domestic Violence Act. The Act specifically applies to “women” involved in domestic relationships.
In addition, the petitioner claimed that the marriage was not legally recognised as it was not officially solemnised. The couple had instead participated in a ceremony that followed transgender customs and procedures as outlined in the Transgender Persons Act, 2019.
“It is submitted that the marriage had not been solemnized, the Respondent No. 1 was not an ‘aggrieved person’ as there was no domestic relationship between the parties in terms of Section 2(f) of the Domestic Violence Act, 2005.”
It has been argued that even if we assume the marriage is valid, it does not necessarily mean that the respondent, who is transgender, can be considered a woman eligible for protection under the Act.
The petitioner also contended that the absence of a certificate from a competent authority recognizing her gender identity as a ‘woman’ disqualifies her from being considered a woman under the DV Act.
“The threshold of self-identification of gender is not sufficient to claim protection under the provisions of the Domestic Violence Act, 2005,” the plea stated.
Advocate Saksham Maheshwari appeared for the petitioner husband.
Advocates Satyajit A Desai, Vrushali Mainded, Siddharth Gautam, Abhinav K Mutyalwar, Gajanan N Tirthkar, Vijay Raj Singh Chouhan and Anagha S Desai appeared for the respondent.