The Himachal Pradesh High Court has ruled that Section 69 of the Bharatiya Nyaya Sanhita (BNS), which penalizes sexual intercourse under a false promise of marriage, can only be invoked by women and not by transgender persons.

The ruling came as the court granted bail to Bhupesh Thakur, a man accused of developing a sexual relationship with a transgender person under the pretext of marriage.

The accused had been charged under Section 69 of the BNS (about deceitful sexual relations with a woman) and Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019.

Also Read: Section 69 of Bharatiya Nyaya Sanhita, 2023 (BNS)

Legal Rationale

Justice Sandeep Sharma, presiding over the case, clarified that Section 69 is strictly applicable to women. He noted that the legal definition of “gender” now includes transgender persons as a distinct category.

The Court emphasized that transgender persons, being defined separately under law, cannot claim the same legal protections under Section 69 that are granted exclusively to women.

The complainant, who identified as a transgender person, alleged that the accused had promised marriage, leading to a sexual relationship.

Despite knowing the complainant’s gender identity, the accused allegedly pursued the relationship and later refused to marry the complainant after her sex change surgery.

The court, however, found merit in the argument presented by the defense, noting that the accused could not be charged under Section 69.

Justice Sharma pointed out that the complainant had admitted to being a transgender person and that physical relations between the parties occurred prior to the complainant’s surgery.

Also Read: PIL Challenges Section 69 of BNS for Criminalising Sex on False Promise of Marriage

Protection Under Transgender Law

While ruling out the applicability of Section 69, the court stressed that the accused should still face charges under Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019.

This section provides for imprisonment of six months to two years for those found guilty of physical or sexual abuse against transgender persons.

The bail petitioner’s defense team also argued that there was no medical evidence to confirm the complainant’s sex change, as she had refused to undergo a medical examination.

Additionally, the court observed that the accused had already joined the investigation and no further recovery of evidence was required.

Court’s Decision

Justice Sharma noted that although the case would ultimately be decided based on the totality of evidence, there was no justification for placing the accused in judicial custody at this stage.

Consequently, the court granted bail, finding no grounds to detain the accused further.

Legal Representation

The accused, Bhupesh Thakur, was represented by Senior Advocate Ajay Kochhar and Advocate Anubhav Chopra.

The State was represented by Additional Advocates General Rajan Kahol, Vishal Panwar, and BC Verma, along with Deputy Advocate General Ravi Chauhan.

Legal Aid Counsel Bhawna Sharma represented the complainant.

Party Names:

• Petitioner: Bhupesh Thakur
• Respondent: State of Himachal Pradesh

Bench Details:

• Justice Sandeep Sharma, Himachal Pradesh High Court