VISWANATHAN KRISHNA MURTHY v. THE STATE OF ANDHRA PRADESH

Order

#1. These instant petitions under Section 482 of Code of Criminal Procedure, 19731 have been filed by the Petitioners/Accused Nos.1, 2 & 3 and 4 respectively, seeking quashment of proceedings against C.C.No.585 of 2022 on the file of the Court of II Additional Munsif Magistrate, Ongole, for the offence punishable under Section 498-A read with 34 of the Indian Penal Code, 18602 and Section 4 of the Dowry Prohibition Act, 19613. Since all these criminal petitions are seeking to quash the proceedings out of the same C.C., they are decided together by this common order. 1 for short „Cr.P.C‟ 2 for short „IPC‟ 3 for short „DP Act‟ 3

Background leading to the filing of these Petitions

#2. The case of Respondent No.2/Complainant, in brief, is as follows: a. Respondent No.2 was originally a male and, having transitioned to female, has become a woman. While residing in Chennai, Respondent No.2 became acquainted with the Petitioner/Accused No.1, and their acquaintance developed into a romantic relationship. Despite being aware that Respondent No.2 is a transgender woman, Petitioner/Accused No.1 continued the relationship with her. Upon learning about their affair, Petitioners/Accused Nos.2 and 3 lodged complaints against her. b. In January 2018, Petitioner/Accused No.1 informed her that he had convinced his parents about their relationship, and consequently, they began living together. On 11.01.2019, Respondent No.2 and Petitioner/Accused No.1 executed a Memorandum of Understanding and subsequently got married on

21.01.2019 at Arya Samaj, Hyderabad, in accordance with Hindu rites and customs. At the time of the marriage, the parents of Respondent No.2 gave an amount of Rs.10,00,000/- to Petitioner/Accused No.1 as dowry, along with 25 sovereigns of gold, silver articles weighing 500 grams, and household items worth Rs.2,00,000/-. c. After the marriage, Respondent No.2 and Accused No.1 resided at her parents‟ house in Ongole. They occasionally visited the house of Petitioners/ Accused Nos.2 and 3 in Chennai. Petitioners/Accused Nos.2 and 3 maintained cordial relations with Respondent No.2 and frequently communicated with her over the phone. Respondent No.2 and Accused No.1 4 lived together until 11.03.2019. Thereafter, he went to his parents‟ house and did not return. When she tried to contact Accused No.1, his phone was switched off. When Respondent No.2 contacted Accused No.3, she replied via message stating that they had gone to Mumbai and that she would ask Accused No.1 to speak with Respondent No.2. d. On 13.03.2019, when Respondent No.2 went to the house of the Petitioners, she discovered that Accused No.1 was present there. Petitioners/Accused Nos.2 and 3 attempted to send Accused No.1 out of the country. On 27.04.2019, Respondent No.2 received a threatening message from Accused No.1‟s phone, warning her to leave the place or face death. She also received vulgar messages. Petitioners/Accused Nos.1 to 3 acted under the direction of Petitioner/Accused No.4. Therefore, she lodged a complaint against Petitioners/Accused Nos.1 to 4, which was registered as Crime No.25 of 2019 at the Women Police Station, Ongole, for offences under Section 498- A read with Section 34 of the IPC and Section 4 of the D.P. Act, 1961. e. After completing the investigation, the police filed a charge sheet against the Petitioners for the said offences, which was numbered as C.C. No.585 of 2022 on the file of the Court of II Additional Munsif Magistrate, Ongole. f. Seeking the quashment of the said C.C., the present petitions are preferred. Hence Crl.Ps. 5 Arguments Advanced at the Bar

#3. Heard Sri Thandava Yogesh, learned counsel for the Petitioners and Ms.K.Priyanka Lakshmi, learned Assistant Public Prosecutor for Respondent Nos.1 and 2.

#4. Learned counsel for the Petitioners/Accused Nos.1 to 4 would submit that trans-woman, who is a transgender cannot be considered as a „woman‟, to lodge a complaint against the husband and his relatives for the offence under Section 498-A IPC. Learned counsel would further submit that the Hon‟ble Supreme Court in Supriyo @ Supriya Chankraborty& another v. Union of India4 categorically held that they are not going to read „transgender‟ as „woman‟ under family law. Learned counsel would also submit that since a transgender cannot bear a child; she cannot be considered as a mother and cannot be considered as a woman in complete sense as such to maintain the complaint for the alleged offences herein. Learned counsel would further submit that in Supriyo(referred supra), the Hon‟ble Supreme Court issued a slew of directions to the Central Government to constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of entitlements of queer couples. Learned counsel heavily placed reliance on the observations made by the Hon‟ble Supreme Court in Supriyo(referred supra) at Paragraph Nos.340 (h), (m) and (s).

#5. Learned counsel for the Petitioners would in addition, submit that the allegations levelled against the Petitioners are baseless and they do not 4 2023 INSC 920 6 attract the offences under Section 498-A IPC and Section 4 of D.P. Act. He would further contend that even if all the allegations are assumed to be true, at best, it would be a case for filing a writ of habeas corpus or, since the Respondent No.2 claims to be the wife of Petitioner/Accused No.1, a petition for restitution of conjugal rights. He further argues that Petitioner/Accused No.4 is not related to Accused Nos.1 to 3, and therefore, the complaint against him is not maintainable. Learned counsel would finally submit that the allegations levelled against the Petitioners are bald and omnibus and as such, continuation of proceedings against the Petitioners is an abuse of process of law. Hence, prayed for quashment of the proceedings against the Petitioners.

#6. Per contra, learned Assistant Public Prosecutor would submit that, there are specific allegations against the Petitioners relating to the commission of the alleged offences. It is argued that the truth or otherwise of the said allegations has to be revealed during trial and at this stage, the proceedings against the Petitioners cannot be quashed. Hence, she prayed for dismissal of the petitions. Point for Determination

#7. Having heard the submissions of the learned counsel representing both the parties, now the points that would emerge for determination are: (1) Whether the complaint lodged by Respondent No.2, being a trans woman, for the offence under Section 498-A read with 34 IPC and Section 4 of D.P. Act, is maintainable or not? 7 (2) Whether there are any justifiable grounds for quashment of the proceedings against the Petitioners/Accused Nos.1 to 4 in C.C.No.585 of 2022 on the file of the Court of II Additional Munsif Magistrate, Ongole? Determination by the Court Point No. (1):

#8. The adjudication of this point requires adequate emphasis on the judicial pronouncements concerning the rights of the transgender persons and a brief contextual understanding. Gender of a person may not necessarily align with the sex assigned to them at birth. A transgender person is one whose gender identity does not conform to the assigned sex. Transgender individuals may choose to undergo hormonal/laser therapy or sex reassignment surgery, in order to align their physical characteristics with their gender identity. It is also apposite to clearly understand certain terms viz., „cis- male‟, „cis-female‟, „transwoman‟ and „transman‟. Cis male is a man whose gender identity aligns with the sex he was assigned at birth. In simpler terms, it means a person, who identifies as a man and was also designated male when he was born. Cis female means a person assigned female at birth, who identifies as a woman. A „transman‟ is a person who was assigned female at birth but identifies and lives as a man. Conversely, a „transwoman‟ is a person who was assigned male at birth but identifies and lives as a woman.

#9. In National Legal Services Authority v. Union of India, 5 the Hon'ble Supreme Court dealt with the grievances of the members of transgender 5(2014) 5 SCC 438 8 community who sought legal declaration of their gender identity than the one that is assigned to them at the time of birth along with a prayer to declare such non-recognition as violative of Articles 14 and 21. The Court has categorically held that the Constitution protects non-binary individuals and that the protections envisaged under Articles 14, 15, 16, 19 and 21 cannot be restricted to the biological sex of “male” or “female”. It is relevant to extract the portions from the decision in which emphasise on the right to self-identification of the transgender persons at paras 105 and 129; “105. If person has changed his/her sex in tune with his/her gender characteristics and perception which has become possible because of the advancement in medical science, and when that is permitted by in medical ethics with no legal embargo, we do not find any impediment, legal or otherwise, in giving due recognition to the gender identity based on the reassign sex after undergoing SRS.

#129. We, therefore, declare: *** (2) Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.” (emphasis supplied)

#10. Pursuant to the decision in National Legal Services Authority (referred supra), the Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019. The Act 2019 provides for the protection of the rights of transgender persons and seeks to eliminate discrimination against the transgender community both in public as well as private spaces. The Act, 2019 establishes a mechanism for the legal recognition of the gender identity of transgender persons through the issuance of a certificate of identity by the 9 District Magistrate, thereby affirming the right of every transgender person to a self-perceived gender identity.

#11. The term „transgender person‟ is defined under Section 2(k) of the Act, 2019, as follows: “2(k) “transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.”

#12. It is clear from the inclusive definition as provided under Section 2(k) of the Act, 2019 that a person‟s transgender identity is not contingent upon undergoing any medical or surgical procedure.

#13. In the decision of K.S. Puttaswamy v. Union of India,6 a Bench of Nine Judges of Hon'ble Supreme Court has held that sexual orientation is a facet of a person's privacy which is a fundamental right under our Constitution and that discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. A Bench of five Judges of the Hon'ble Supreme Court in Navtej Singh Johar v. Union of India,7 while decriminalising Section 377 of IPC has held that homosexuality is based on a sense of identity and is as much ingrained, inherent and innate as heterosexuality and that homosexuals have the fundamental right to live with dignity, are “entitled to the protection of equal laws, and are entitled to be