Who is a “woman” under Section 69 BNS? Only a female human being, the Allahabad High Court has held prima facie, ruling that the provision does not reach a transgender woman, even one who has undergone sex-reassignment surgery, as it granted bail to the accused.
Prayagraj: A man accused of cheating a transgender woman by a false promise of marriage has been granted bail by the Allahabad High Court, which has held, prima facie, that the word “woman” in Section 69 of the Bharatiya Nyaya Sanhita (BNS) takes in only a female human being and does not extend to a transgender woman. Section 69 punishes sexual intercourse by deceitful means, including a false promise of marriage, and the accused was found prima facie not to attract it [Mohd Saakir @ Mohd Sakir v. State of U.P.].
The order of October 15, 2026 was passed by Justice Arun Kumar Singh Deshwal on a bail application arising from a case registered at Police Station Izzatnagar in Bareilly district under Sections 69, 352 and 351(3) BNS, with Advocate Mayuri Mehrotra appointed amicus curiae. The observations are prima facie and were made at the bail stage; the Court has expressed no view on the allegations, which are untested, and the accused is presumed innocent.
Bail, and its limits
Because no offence under Section 69 BNS was prima facie made out, bail was granted on a personal bond with two sureties. The applicant is not to tamper with evidence or threaten witnesses, must cooperate with the investigation and trial, and must stay clear of criminal activity. The trial court must send the release order to the jail through the Bail Order Management System and the e-prison portal within 24 hours, and the High Court Legal Aid Services Committee will pay the amicus a fee of Rs 10,000.
How the Court read “woman”
The Court framed the issue as whether a transgender woman is deemed a “woman” for Section 69 BNS. To answer it, it read Section 2(35) BNS, which defines “woman”, alongside Section 2(10), which recognises male, female and transgender as genders and takes its definition of a transgender person from the 2019 Act. As the alleged incident came before the Transgender Persons (Protection of Rights) Amendment Act, 2026, the Court applied the 2019 Act as it stood before that amendment. On that footing the definition covers transgender women whether or not they have had surgery or hormone therapy, and “transgender” is an identity separate from male and female.
It followed, the Court held, that a transgender woman remains within the category of transgender persons and outside the definition of “woman”. In its words:
The word ‘woman’ mentioned in Section 69 of BNS includes only female human being
The decisions of the Uttarakhand and Andhra Pradesh High Courts that the amicus cited were set apart because they did not look at the BNS definitions of “gender” and “woman”. The Court leaned instead on the Himachal Pradesh High Court’s 2024 ruling in Bhupesh Thakur v. State of Himachal Pradesh, under which such an accused is to be dealt with under Section 18(d) of the 2019 Act (imprisonment of up to two years for physical or sexual abuse of a transgender person) and not under Section 69 BNS. It also noted that a December 2023 report of the Parliamentary Standing Committee on Home Affairs had recommended extending women-specific offences to transgender women, a recommendation Parliament did not adopt, leaving the BNS definition of “woman” as it was.
What the informant alleges
The informant, a transgender woman whose identity is not disclosed here, alleged a relationship of about 18 months with the applicant, who promised to marry her, established a physical relationship on that basis and later refused to marry her after taking more than Rs 5 lakh from her. In her statements under Sections 180 and 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), she said she was assigned male at birth, underwent surgery in April 2023 and told the applicant of her transgender status before the relationship began.
The submissions
The applicant’s side argued that Section 69 BNS needs a “woman”, which Section 2(35) BNS defines as a female human being of any age, and that a person assigned male at birth remains a transgender person even after surgery. The State submitted that a transgender woman should not be shut out only because she was assigned male at birth, adding that the informant has not applied to change her legal gender and is recorded as male in official records.
Relying on the Andhra Pradesh High Court’s ruling in Viswanathan Krishnamurthy v. State of Andhra Pradesh and on NALSA v. Union of India, the amicus submitted that the Transgender Persons (Protection of Rights) Act, 2019 also covers persons who have had surgery.
The Court clarified that its observation is confined to the interpretation of “woman” in Section 69 BNS and not for any other offence.
Case Title: Mohd Saakir @ Mohd Sakir v. State of U.P. [Criminal Misc. Bail Application No. 36167 of 2026]
Bench: Justice Arun Kumar Singh Deshwal, Allahabad High Court
Date of Order: October 15, 2026
Amicus Curiae: Advocate Mayuri Mehrotra