Transgender women are not “women” under BNS Section 69, Allahabad High Court rules while granting accused bail

The informant, a transgender woman who was assigned male at birth and underwent genital reconstruction surgery, alleged that she had been in a relationship with the applicant for over a year and a half on his promise to marry her.

She alleged that he had sexual intercourse with her, accepted more than ₹5 lakh, and later refused to marry her.

In her statements under Sections 180 and 183 BNSS, she stated that she had disclosed her transgender identity to the applicant before the relationship.

The applicant sought bail in a case registered under Sections 69, 352 and 351(3) of the Bharatiya Nyaya Sanhita, 2023 (BNS).

The Court appointed an amicus curiae to assist on the legal question concerning the meaning of “woman” under Section 69 BNS.

Whether a transgender woman, including a person who has undergone sex-reassignment surgery, falls within the meaning of “woman” under Section 69 BNS.

Whether, on the record before the Court, a prima facie case under Section 69 BNS was made out against the applicant.

Section 69 BNS criminalises sexual intercourse with a woman, not amounting to rape, obtained by deceitful means or by a promise to marry made without intention to fulfil it.

Section 2(35) BNS defines “woman” as “a female human being of any age,” while Section 2(10) recognises male, female and transgender as gender categories and adopts the meaning of “transgender” in Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019.

The Court construed Section 2(k), which includes a trans-man or trans-woman whether or not the person has undergone surgery or therapy, to mean that a trans-woman remains within the statutory category of transgender and is not a “female human being” for Section 69 BNS.

The Court also referred to Section 18(d) of the 2019 Act, which provides a separate offence concerning harm or abuse, including sexual abuse, of a transgender person.

It relied on Bhupesh Thakur v. State of Himachal Pradesh, 2024 SCC OnLine HP 4513, and distinguished X v. State of Uttarakhand, 2019 SCC OnLine Utt 1097, and Viswanathan Krishnamurthy v. State of Andhra Pradesh, MANU/AP/0884/2025.

The Court reasoned that Section 69 BNS applies specifically to sexual intercourse with a “woman,” a term defined in Section 2(35) as a female human being.

It read that definition alongside the separate recognition of transgender persons in Section 2(10) BNS and Section 2(k) of the 2019 Act, and concluded that a trans-woman remains within the transgender category for the purpose of Section 69, notwithstanding sex-reassignment surgery.

It considered the authorities cited by the amicus but found them inapplicable or distinguishable in light of the BNS definitions.

Applying that interpretation, the Court noted that the informant’s statements described her as assigned male at birth and as having undergone surgery, and that she had disclosed her transgender identity to the applicant.

It therefore held that a prima facie offence under Section 69 BNS was not made out.

It expressly confined that observation to interpreting “woman” under Section 69.

Finding no prima facie case under that section, the Court granted the applicant bail on a personal bond and two sureties, subject to conditions including non-interference with witnesses, cooperation with the trial, and refraining from criminal activity.