Rape Laws For Women Do Not Apply To Trans Women? J&K Court Answers While Granting Bail To Arrested Man

JAMMU: A Fast Track Court in Jammu has granted bail to a man accused of raping a transgender woman after his lawyers raised a significant legal question: whether Section 64 of the Bharatiya Nyaya Sanhita (BNS), which punishes rape of a woman, can be invoked where the complainant is a transgender woman.

The transgender woman alleged that he entered her home in Jammu city and raped her on two occasions in April 2026. These are allegations contained in the FIR and have not been proved at trial.

The accused was arrested on 10 August 2026 and booked under Section 64 BNS, which provides punishment for rape.

During the bail hearing, his lawyers argued that the BNS rape provision is not gender-neutral and specifically applies where the victim is a “woman”. They relied upon the statutory definitions of “woman” and “transgender person” to question whether Section 64 could legally apply to the allegations in the present case.

The complainant had been assigned male at birth and underwent gender-affirming surgery in 2023. She later changed her official identification under the transgender category and declared her identity and name as female.

The court noted that there is no settled legal position on whether a transgender woman can be treated as a woman for the purpose of the BNS rape provision. It observed that this question “cannot be conclusively determined in bail proceedings” and requires examination during trial.

This distinction became important because the Transgender Persons (Protection of Rights) Act separately deals with sexual abuse against transgender persons. Section 18 of that law provides punishment for specified acts against transgender persons, including sexual abuse.

The defence relied upon Section 2(10) BNS, which adopts the meaning of “transgender” from the Transgender Persons Act, and contrasted it with Section 2(35) BNS, which defines a woman as a female human being of any age.

The court also considered the existence of the special provision dealing with sexual abuse under the Transgender Persons Act while examining whether the much more serious rape provision under Section 64 BNS could apply in the present circumstances.

At the bail stage, however, the court did not finally decide whether the complainant is legally entitled to invoke Section 64 BNS. It treated the issue as a substantial question to be determined at trial and granted bail to the accused.

The final determination of the allegations against the accused, as well as the applicability of Section 64 BNS, remains subject to trial.

EXPLANATORY TABLE OF LAWS AND SECTIONS

CASE DETAILS

KEY TAKEAWAYS

• Man Arrested Under Section 64 BNS: He faced a serious rape prosecution before the provision’s applicability to the transgender complainant had been finally determined.
• Defence Challenged the Very Charge: His lawyers argued that the BNS separately recognises “woman” and “transgender” under its definitions.
• Court Left the Question Open: The court said the issue “cannot be conclusively determined in bail proceedings” and requires examination during trial.
• Bail Granted, Not Acquittal: The allegations remain unproved, and the accused will still have to face the criminal proceedings.
• Liberty Cannot Become An Afterthought: When the applicability of a serious penal provision itself is legally disputed, the consequences for an accused man begin long before guilt is established.