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Polity & Governance
Mahesh

05/11/23 12:54 PM IST

Rights of trans womanfor invoking the Domestic Violence Act

In News
  • The Supreme Court agreed to examine the question of whether a trans gender woman who underwent a sex-reassignment surgery may be called an “aggrieved person” within the meaning of Section 2(a) of the Domestic Violence Act, 2005.
Aggrieved Person
  • Section 2(a) of the Domestic Violence Act, 2005 defines an “aggrieved person” as “any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”
  • A “domestic relationship” under Section 2(f) of the Act means a relationship between two persons who live or have, at any point of time, lived together in a shared household when they are related by “consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”
  • The 2005 Act was passed with the objective of providing for “more effective protection of the rights of women guaranteed under the Constitution”.
  • The Act has provisions for monetary relief which can be paid to an aggrieved person by the respondent, upon the Magistrate’s order, “to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence.”
  • In the present case a trans woman who underwent sex reassignment surgery in June 2016, filed a plea for interim maintenance under the DV Act, contending that they had “converted their gender from transgender to female”, fell under the definition of “aggrieved person”.
Process for a trans gender to change their gender
  • The 2019 Act allows for the recognition of the identity of transgender persons.
  • It says, “A transgender person shall have a right to be recognised as such, in accordance with the provisions of this Act,” adding that transgenders shall also have a “right to self-perceived gender identity”.
  • Section 5 of the Act also allows transgenders to file applications before the District Magistrate for issuing a “certificate of identity” as a transgender person, accompanied by documents, in the form and manner prescribed.
  • Once a certificate of identity is issued to the transgender person, they can also seek to change their gender, as per the process outlined in Section 7.
  • Section 7 states that if a trans person undergoes surgery to change their gender, they can make an application to the DM, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which they underwent surgery, for a “revised certificate”.
  • Upon receiving this certificate, the trans person is entitled to change the first name on their birth certificate and all other official documents relating to their identity.
  • However, in the present case, the trans-woman’s submitted only her medical certificate, confirming the occurrence of her sex reassignment surgery before the HC.
  • Relying on the top court’s 2014 ruling in NALSA vs UOI, her counsel said that SC has recognized the rights of persons who change their sex in tune with their gender characteristics and thus, their new gender identity can also be granted recognition.
NALSA Judgement
  • The top court’s 2014 ruling in NALSA, the court said, “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.”
  • Underlining that the need to pass laws like the DV Act stemmed from the inadequacy in existing civil laws for women being subjected to cruelty by their husbands and family relatives, the court said that the term aggrieved person “needs to be interpreted with the broadest possible terms”.
Source- Indian Express

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