Top News Headlines 30th May 2022: Orissa HC Orders Family Pension To Transwoman

Orissa HC Orders Family Pension To Transwoman: Said ‘Transgender Has Every Right To Choose Gender’ 

• In Kantaro Kondagari @ Kajol vs State of Odisha and ors. the Hon’ble Odisha HC has ordered the grant of family pension to a transwoman, who was allegedly discriminated against on the basis of her gender and was denied family pension after her parents’ demise. 
• The Court observed that a transgender has every right to choose their gender, and that this right has been recognised by the Hon’ble Apex Court in the case of NALSA vs Union of India, and as such, is binding throughout the territory of India. 
• The father of the petitioner, late Balaji Kondagari, was a government employee in the Rural Development Department, Rayagada. After his death, his wife was granted the family pension. After her death on 11-07-2020, the present petitioner, who is a transwoman, applied for the family pension under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992 to the Executive Engineer RW Division, Rayagada.
• She claimed that she and her sister come under the category of ‘Unmarried daughter, divorced or widowed daughter’ and as such, they are entitled to get the family pension. 
• The Court, on perusal of the pleadings in the writ petition, observed that Rural Development Department/ Executive Engineer had written to the Principal Accountant General, Odisha, Bhubaneshwar after scrutinising the application of the petitioner, had found her eligible to receive the family pension and accordingly recommended the case of the petitioner for sanction of the family pension amounting to Rs 8,995 +TI per month in her favour. 
• It was submitted by the Counsel for the petitioner that even though the family pension had already been sanctioned by the competent authority in favour of the petitioner, the Principal Accountant General , Odisha had not taken any steps for disbursal of the family pension in her favour.
• It was also contended by the learned Counsel for the petitioner that the petitioner is a trangender Woman and has been recognised as such vide a certificate issued by the DM under Rule 5 of the Transgender Persons (Protection of Rights) Rules, 2020 read with Section 6 of the Transgender Persons (Protection of Rights) Act, 2019. It was argued that the authorities had discriminated against her and have failed to apply the provisions of the law as provided in the aforementioned Rules. 
• In support of their contentions, the Counsel for the petitioner had relied upon the decision of the Apex Court in NALSA vs Union of India wherein the rights of the trangender community were recognised as being at par with the rights of the other citizens of the Country. 
• Allowing the writ petition, the Hon’ble Court agreed with the contentions of the petitioner, and directed the Principal Accountant General to process the application of the petitioner as swiftly as possible, preferably within a period of 6 weeks from the date of the commission of the certified copy of the order. 

Holding Hands Of A Child And Calling Them Beautiful Not ‘Sexual Assault’ Under POCSO: Meghalaya HC

• In Mohammad Saimullah vs State of Meghalaya the Hon’ble Meghalaya HC has held that the mere act of holding the hands of the child and calling them beautiful cannot be considered to be an act of sexual assault under the POCSO Act. 
• As per the case made by the prosecution, the accused had asked for a glass of water from the victim, and on her bringing the said glass to him, he grabbed her hand. According to the statements given by her under 164 CrPC, the victim had stated that the accused had held her hand and stroked it, and then remarked that her hand is very beautiful. 
• The accused filed a petition under section 482 of CrPC before the HC and alleged that the mere act of a 55 year old man appreciating the hands of a young girl saying that they are beautiful, cannot by any stretch of imagination be considered an offence under any law.
• The Counsel for the State, on the other hand, alleged that the fact that the accused did not take the glass of water which was brought by the victim clearly showed his ulterior motives and thus, an offence under sections 9(m) and 7 of the POCSO Act is made out. 
• The Hon’ble HC observed that the place of occurrence is located near the victims house and that a number of people were present, and that the alleged incident happened in broad daylight. The fact that the accused had allegedly commented on the victim’s hands being beautiful, and that the contact was probably of a few seconds only, the same cannot be read to imply that there was a sexual intent on the part of the petitioner. At best, what can be presumed is a non-sexual purpose.
• The Court relied on the decision of the Hon’ble Apex Court in Attorney General of India vs Satish and anr wherein it was held that touching the vagina, penis, anus or breast of a child with a sexual intent would amount to sexual assault. The key word here is sexual intent. The Court had also observed that the circumstances in which the touch or the physical contact occurs would be determinative of whether the same is motivated by sexual intent. 
• Thus, the Court allowed the petition and the proceedings under the POCSO Act were, thus, quashed.