16 September 2024 - Legal Updates

1. Section 69 of BNS cannot be invoked by transgender persons in case of false promise of marriage

Himachal Pradesh High Court while hearing a Criminal Miscellaneous Petition seeking approval of interim bail granted by the trial court in case of Bhupesh Thakur vs. State of Himachal Pradesh, clarified the limitations of Section 69 of Bharatiya Nyaya Sanhita (BNS) 2023, in cases involving transgender persons. It stated that provision of section 69, BNS, is not applicable to an act of sexual intercourse with a transgender person.

Brief Factual Matrix of the Case

The case involves a transgender woman who filed a complaint on July 18, 2024, against petitioner Bhupesh Thakur. It is alleged that they met during the COVID-19 lockdown through Facebook, and Thakur promised to marry her despite knowing her transgender status. After the lockdown, they traveled together, and Thakur applied sindoor on her forehead, a sign of marriage. However, Thakur later refused to marry her and pressured her to undergo gender reassignment surgery.

After the surgery at AIIMS Delhi, the victim learned that Thakur’s family had arranged his marriage to someone else, leading her to file the FIR. Thakur was granted interim bail on August 14, 2024 to which he sought confirmation by the High Court.

Provisions involved

• The FIR includes charges under Section 69 of the BNS and Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019.
• Section 69 penalises act of sexual intercourse with a woman using deceitful means. The law states that if a person, using deceitful means or by promising to marry a woman without intending to fulfill the same, engages in sexual intercourse with her (where the act does not constitute rape), they can be punished with imprisonment for up to ten years and may also be fined.
• Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019 states that anyone who harms, injures, or endangers the life, safety, health, or well-being (mental or physical) of a transgender person, or engages in acts such as physical abuse, sexual abuse, verbal and emotional abuse, or economic abuse, shall be punished with imprisonment for a term of at least six months, which may extend to two years, and may also be subject to a fine.

Opinion of the Court

• While explaining the actual mandate of Sec 69 and confirming the interim bail of an accused the High Court observed that in the legal context, since “woman” and “transgender” are identified separately under BNS and considering that any physical relationship between the victim and the accused occurred before the victim’s gender reassignment surgery, the bail petitioner claimed that he should not be charged under Section 69 of the BNS rather should be dealt under Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019.
• High Court noted that Section 69 specifically penalizes deceitful promises of marriage made to a “woman”, defined under Section 2(35) of the BNS as “a female human being of any age”. Since the prosecutrix had identified herself as transgender, the Court found merit in the petitioner’s argument that the section could not be invoked in this case.
• The Court also referred to Section 2(10) of the BNS, which defines “gender” to include male, female, and transgender persons. It noted that transgender individuals are classified as a distinct category, separate from male and female. This distinction reinforced the petitioner’s argument that he should be charged under Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019, rather than under Section 69 of the BNS.
• On point of the application of the Transgender Persons (Protection of Rights) Act, the Court reviewed Section 18(d), which penalises acts that harm or injure the life, safety, or well-being of a transgender person, and noted that there is no evidence on record to suggest that the petitioner attempted to develop a physical relationship with the victim after the alleged surgery in which the victim underwent gender reassignment.

 Interim Bail Affirmed

• The Court observed that the case will be decided based on the total evidence presented by the prosecution. However, given the significant aspects of the case, there appeared no reason to place the bail petitioner in judicial custody, especially since there is nothing further to recover from him.
• Emphasising that bail is generally favored over incarceration during the pre-trial phase, provided the accused cooperates and poses no flight risk, the Court made the interim bail order permanent. The petitioner directed to comply with conditions including cooperating with the investigation and attending court regularly.

2. Section 31 of the Specific Relief Act: Third Parties Not Required to Seek Cancellation of a Void Sale Deed

The Supreme Court in Sk. Golam Lalchand vs. Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes & Ors., made observation regarding cancellation of instrument by third party under section 31 of the Specific Relief Act, 1963.

Facts Involved in Brief

• The issue in the case revolves around whether a co-owner can legally sell the entire joint family property to a subsequent purchaser (the appellant) through a sale deed without the authorisation of the other co-owners (the respondents). Additionally, the dispute includes the fact that the co-owner’s share in the property was not yet determined at the time of the transfer.
• The Respondent contested the transfer of the entire suit property to the Appellant by filing a title suit, arguing that the transfer was invalid. The basis for this challenge was that the co-owner/transferor was only authorised to transfer their own share of the property, not the entire property. 

Section 31 of SRA

Section 31 of the Specific Relief Act, 1963, deals with cancellation of instruments. It lays down that any person who is adversely affected by a written instrument that is void or voidable, and who reasonably fears that the instrument could cause serious harm if left in effect, may file a lawsuit to have it declared void or voidable. The court has the discretion to make this declaration and order that the instrument be surrendered and canceled.

Observation of the Supreme Court

• The Division Bench of the Apex Court held a view in favour of the respondent’s contention that when there are multiple co-owners of a property, a subsequent purchaser (the Appellant) cannot gain rights, title, and interest in the entire property solely based on a sale deed executed by just one co-owner/transferor.
• While holding the opinion, the Court addressed the Appellant’s argument that the sale deed could not be canceled independently because the Respondent had not requested its cancellation.
• Section 31 of the Specific Relief Act, 1963 uses the term ‘may'’ to indicate that filing a suit for declaring an instrument void is not mandatory in every case, especially when the person seeking the declaration is not a party to the instrument.
• Relying on Section 31 of the SRA, the Court concluded that it is not always necessary to file an application to have a sale deed declared void, particularly when the person or Respondent challenging the deed was not a party to it.
• Essentially, the court stated that when a sale deed is executed between parties, a third party who is affected by the deed but was not involved in the transaction cannot be required to file a separate application for its cancellation under Section 31 of the SRA.
• The bench referred to the opinion of the Court in M/s Asian Avenues Pvt Ltd vs. Sri Syed Shoukat Hussain, where it was held that since an action brought under Section 31 of SRA for the cancellation of an instrument is not an action in rem, it can be inferred that the cancellation will only bind the parties involved in the case.