The Allahabad High Court questioned invoking of Section 69 of the Bharatiya Nyaya Sanhita (BNS) in an FIR filed against a man for allegedly having physical relations on the false promise of marriage, saying the provision can only be applied in an offence committed against a woman and not a transgender.Granting bail to the accused lodged in jail in the case filed by a transgender in Bareilly district, the bench of Justice Arun Kumar Singh Deshwal said in its order dated October 15, “…trans-woman (even through sex reassignment surgery), would still be included in the transgender, not in the definition of woman (female human being), specially for the purpose of Section 69 of BNS, where deceitful means or false promise to marry relates to the woman.”Besides Section 69 of BNS, Sections 352 (intentional insult to provoke breach of peace) and 351(3) (aggravated criminal intimidation) of the criminal code were also invoked.Also Read | ‘No legal backing’: Allahabad High Court rejects transgender person’s plea seeking area to collect ‘badhai’The petitioner’s counsel informed the court that the case was lodged by the transgender person alleging she was in a relationship with the man for more than one-and-a-half years on the promise to marry her. She further alleged the accused took more than Rs 5 lakh from her, established physical relationship and later refused to marry.The counsel further submitted that the complainant admitted in her statement that initially she was born as a male and she became a female after conducting surgery of “vulval reconstruction” in April 2023.The complainant also stated that she had disclosed to the accused about her being a transgender before entering into a relationship.The petitioner’s counsel claimed that as per a report prepared by a panel of doctors in August this year, the complainant was actually found to be a male with the changed genital part without having uterus.Story continues below this adThe counsel said that to attract the “ingredients” of Section 69 of BNS, the victim must be a woman.The government counsel, however, submitted that after changing the genital, a male who was having hormones of a female would come within the definition of a woman despite he or she does not have a uterus. It was further submitted that the word “transgender” female would not exclude a person from the definition of a woman even as she became a woman after changing her genitals through surgery despite being born as a male.After hearing the submissions, the bench said…. “the definition of transgender person clearly shows that even if a person was assigned gender as a male at the time of birth and after sex reassignment surgery, he became female or if a person was assigned gender as a female at the time of birth and after sex reassignment surgery, he became male then it is clear that transgender man/woman will still be a transgender and not the male human being or female human being. The word ‘woman’ mentioned in Section 69 of BNS includes only female human being.”The court added the complainant has admitted in her statements that she was born as a male but having the psyche of a woman changed herself into a transwoman through sex reassignment surgery. “Therefore, prima facie no case under Section 69 BNS is made out and the applicant is entitled to be released on bail,” it said.Story continues below this adThe bench also made it clear that the court’s observation was confined to the interpretation of “woman” under Section 69 of the BNS and not for any other offence.It also cited a Central government’s move of an amendment in the law stating that Parliamentary Standing Committee of Home Affairs presented to the Rajya Sabha in December 2023 and tabled in the Lok Sabha and suggested through recommendation number 17 that provision of rape in the BNS is strictly limited to a woman and does not include a transgender and therefore, is recommended to bring the transgender woman within the purview of rape by making necessary amendment in the law. But this report was not accepted by Parliament and the word “woman” remains as it is in the BNS without including transgender women, the bench stated.