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A transgender person has approached the Uttarakhand High Court to claim her rights after police refused to accept her changed gender.The high court stepped in to the woman's aid, asking police to state the reason for such behaviour.According to a complaint filed by the victim, she was in love with a man from Kotdwar and underwent a gender change surgery to be able to be with him.
After their engagement ceremony, her fiance called him to Kotdwar and allegedly raped her.When she approached police with a complaint, they refused to file an FIR under section 376 of the IPC (rape) and instead filed the complaint under section 377(unnatural offences).The victim then approached the high court seeking conversion of the FIR under section 377 to one under section 376, claiming that she has all the rights of a woman.
Justice Lokpal Singh heard the matter on Monday and asked the government to file a reply within four weeks. Justice Ravindra Maithani noted that, in National Legal Services Authority judgment, the Supreme Court had not accepted the Corbett principle of "biological test" rather preferred to follow the psych of the person in determining sex and gender. In the case of Corbett Vs. Corbett, it was held that any operative intervention should be ignored and the biological sexual constitution of an individual is fixed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means.
The court then asked the state to file an affidavit answering these queries
• How the Investigating Officer may be given the right of determination of sex or gender of the petitioner?
• How the Investigating Officer can determine the sex and gender of the petitioner based on some DNA analysis and "biological test"?
• How Investigating Officer could apply the Corbett principle which was not accepted by the Hon'ble Supreme Court?
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