Legal Definition Of ‘Woman’: Will Bobby’s Divorce Petition Be A Catalyst For An Inclusive One?

Posted: March 7, 2019

As a trans woman, Bobby’s divorce and alimony petition challenges the legal definition of the word ‘woman’. Will ruling on this give the SC a chance to make it more inclusive?

Bobby Darling is a trans woman, a fairly well known name and face from movies and TV. Currently in a divorce case against her abusive husband, she’s having to battle also against the legal definition of ‘woman’.

Bobby, assigned male at birth and named Pankaj Sharma, underwent a sex reassignment surgery in 2015, changing her name to Pakhi Sharma. In 2016, she married Bhopal-based businessman Ramneek Sharma, in a Hindu ceremony. Barely a year after, she had filed an FIR against her husband accusing him of demanding dowry, assault, and usurping her money and property. She has also filed for a divorce, and is demanding alimony from her estranged husband.

Till now the situation reads like a love marriage sadly gone awry. But Bobby’s situation is even more heart-rending than a cis-woman in the same plight.

Legal loophole?

This is because Bobby’s estranged husband, Ramneek alleges that their marriage is not legally valid because Bobby was not born a woman. Ramneek’s lawyers G J Ramchandani and Hitesh Ramchandani, say that the marriage is void under the Hindu Marriage Act, as it only recognizes a marriage between a man and a woman. Also, in the Domestic Violence Act, Hindu Marriage Act or in IPC laws, there is still no allocation for transgender marital rights.

This is a technical loophole that Ramneek Sharma is taking advantage of, in a 1955 Hindu Marriage Act and the 2005 Domestic Violence Act, that do not recognise trans women’s rights under these laws.

And therein lie Bobby’s woes.

Here’s a look at what the law says:

  • Article 15 of the Constitution of India prohibits discrimination on grounds of religion, race, caste, sex, or place of birth.
  • Since 2014, transgender people in India have been allowed to change their gender without sex reassignment surgery, and have a constitutional right to register themselves under a third gender.
  • Since the abolishing of Section 377 of the IPC, sexual activity between people of the same gender is legal but same-sex couples cannot yet legally marry or obtain civil partnerships.
  • Under the Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1956, the court can order that the husband shall pay the wife a particular amount (fixed by the court), either periodically, or a lump-sum payment, based on husband’s financial income, assets, liabilities, wife’s employment and earning status etc. While the legal proceedings are underway, a husband is required to pay maintenance for the wife, along with the expenses of the proceedings.

The legal definition of ‘woman’

Bobby Darling’s petition is a case that can challenge India’s legal definitions of the word ‘woman’.

Who is a woman? The esteemed architects of the Indian constitution wouldn’t have imagined the necessity of explicitly specifying what makes a woman or a man. An increasing awareness of gender identities and inclusion have made this definition /clarification necessary, so that such loopholes cannot be misused.

In the past few months the Judiciary has been coming out with many path breaking judgements. Can the judges walk the talk yet again?

Should archaic laws be interpreted literally or be truer to the spirit of the existing situation?

Should the changing value systems, sensibilities, and open social mores be not taken into consideration while judging a case?

Will the abusive Ramneek get an easy way out due to a moth-balled interpretation of the law?

Will the esteemed courts stand tall and justice is served?

Will Bobby be the catalyst to change?

Image source: YouTube

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Anupama Jain is the author of 'When Padma Bani Paula', a breezy novel about second

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