The Supreme Court of India will decide in January 2025 whether a transgender woman can claim maintenance under the Protection of Women from Domestic Violence Act, 2005 (DV Act).
The Court was hearing an appeal moved by a man against a Bombay High Court judgment which 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.
The Bombay High Court had in March this year dismissed the man’s petition challenging the applicability of the provisions of the DV Act to his wife, who was reportedly a transgender individual before marriage and had undergone sex reassignment surgery.
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 further argued in his plea that the respondent transgender woman does not meet the criteria of an “aggrieved person” as defined in the DV Act, which specifically pertains to “women” in domestic relationships.
Moreover, the petitioner argued that the marriage was not solemnized, and that the couple had only conducted a ceremony following transgender customs and procedures under 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.”
In light of this, it was claimed that even if the marriage is assumed to be valid, it cannot be inferred that the respondent, as a transgender person, qualifies as 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.
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