# Shivanya Pandey v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 220
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-26
- **Case number:** Misc. Single No. 26611 of 2017
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivanya-pandey-v-state-of-u-p-ors-46488
- **Pages:** 5

## Headnote

Persons (Protection of Rights) Act, 2019-
Section 7 - Transgender Persons (Protection of
Rights) Rules, 2020 - Section 7 is required to be
interpreted in a manner that the transgender persons
who are issued a certificate under Section 6 or
persons like petitioner who had undergone the gender
re-assignment procedure prior to coming into force of
the Act, both are held entitled to apply before the
District Magistrate for issuance of a certificate
indicating change in gender. Only on the basis of
certificate issued by the District Magistrate the
transgender person can apply for change of their birth
certificate and other official documents relating their
identity. (Para 9)
Writ Petition Allowed. (E-10)

List of Cases cited:-

## Text

220 INDIAN LAW REPORTS ALLAHABAD SERIES

15. According to the Sub Section 6(a) of
the Section 145 Cr.P.C., if the Sub Divisional
Magistrate is directed as sought by the petitioner
in relief no.1, to decide and conclude the case
under Section 145 Cr.P.C. pending before him
then he would have a duty under order of this
Court to decide one of the parties was or should
under the proviso to sub- section (4) be treated
as being, in such possession of the said subject,
he shall issue an order declaring such party to be
entitled to possession thereof until evicted
therefrom in due course of law, and forbidding
all disturbance of such possession until such
eviction; and when he proceeds under the
proviso to sub- section (4), may restore to
possession the party forcibly and wrongfully
dispossessed. It clearly means and purport
causing disturbances in the status-quo of the
property.

16. The order of status quo passed by the
Civil Court not only binds the parties to the suit
or proceeding but also to others who cause to
disturb the status already existing when the order
is passed by the Court.

17. Until the order of status quo passed by
the Civil Judge, Senior Division, Balrampur in
Original Suit No.66 of 2021 is in effect and
continuing, the status with regard to the possession
cannot be disturbed or altered.

18. It would be lawful for the petitioner to
seek remedy before the Civil Court itself as he
himself is party to the Original Suit No.66 of 2021
pending in the Court of Civil Judge, Senior
Division,
Balrampur.
The
Sub
Divisional
Magistrate, Tehsil Utraula, Balrampur cannot be
directed as sought in the petition to proceed under
Section 145 Cr.P.C. and conclude it this way or
that way.

19. Civil Court, is the only Court to decide
the right, title and interest of the parties to have
rightful possession over the property so far as Sub
Divisional Magistrate's Court (Criminal Court)
working under Section 145 Cr.P.C. is concerned, it
can only decide possession of the party on the date
of dispute. During the pendency of the civil suit
with regard to the right, title and interest and right
to possession over the property is pending,
Criminal proceeding neither can be initiated nor
decided prior to the decision of the Civil Court.

20. In Ram Sumer Puri Mahant Vs. State of
U.P. and Others reported in (1985) 1 SCC 427, it
is held:-

"When a civil litigation is pending for
the same property wherein the question of
possession is involved and the parties are in a
position to approach the civil court for interim
orders such as injunction or appointment of
receiver for adequate protection of the property
during pendency of the dispute, there is no
justification for initiating a parallel criminal
proceeding under Section 145 Cr.P.C. Multiplicity
of litigation is not in the interest of the parties nor
should pubic time be allowed to be wasted over
meaningless litigation. Therefore, the parallel
proceeding should not continue and the order of
the Magistrate directing initiation of such a
proceeding under Section 145 Cr.P.C. must be
quashed."

21. With the aforesaid observations, the
present writ petition is dismissed.
----------
(2021)11ILR A220
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.11.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Misc. Single No. 26611 of 2017

Shivanya Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
11 All. Shivanya Pandey Vs. State of U.P. & Ors.
221
Counsel for the Petitioner:
Shubham Tripathi, Ali Jibran, Aman Khan,
Suyash Manjul

Counsel for the Respondents:
C.S.C., Kirti Srivastava

A. Interpretation of Statute - Transgender
Persons (Protection of Rights) Act, 2019-
Section 7 - Transgender Persons (Protection of
Rights) Rules, 2020 - Section 7 is required to be
interpreted in a manner that the transgender persons
who are issued a certificate under Section 6 or
persons like petitioner who had undergone the gender
re-assignment procedure prior to coming into force of
the Act, both are held entitled to apply before the
District Magistrate for issuance of a certificate
indicating change in gender. Only on the basis of
certificate issued by the District Magistrate the
transgender person can apply for change of their birth
certificate and other official documents relating their
identity. (Para 9)
Writ Petition Allowed. (E-10)

List of Cases cited:-

1. National Legal Service Authority Vs U.O.I. & ors.
(2014) 5 SCC 438 (followed)

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Heard Sri Mohd. Aman Khan, learned
counsel for petitioner and learned Standing
Counsel for the State.

2. Present writ petition is filed by the
petitioner
Shivanya
Pandey
praying
that
respondent no.2 Board of High School and
Intermediate Education, Allahabad (U.P.) (U.P.
Board) may be directed by this Court to change
name and gender of the petitioner in her
matriculation
mark-sheet
and
thereafter,
respondent no.3 Council for the Indian Schools
Examination, New Delhi (CISE Board) may also
change the name and gender in the mark-sheet
of intermediate of the petitioner. Further a
mandamus is also sought commanding the
respondent no. 2 and 3 respectively to amend
their regulations and guidelines with regard to
change of gender and names.

3. Facts of the case are that petitioner with
her earlier name as Vikas Pandey and gender as
male appeared and passed High School on
10.06.2011 from the Children Academy Public
School, Lucknow affiliated to the U.P. Board
and Intermediate in the year 2013 from the
Lucknow Public Collegiate, Lucknow affiliated
to the CISE Board. Petitioner was suffering from
gender dysphoria and, therefore, underwent
gender reassignment surgery on 23.10.2017
from male to female at Fortis Hospital, New
Delhi. On 27.05.2017, petitioner got published a
gazette notification in respect of change of her
name from 'Vikas Pandey' to 'Shivanya Pandey'
and gender from 'male' to 'female'. Petitioner
also got an adhar card and pan card issued in her
new name and gender i.e. Shivanya Pandey,
female. With the change of name and gender,
petitioner now required change of the same in
her school certificates also. For the said
purposes, on 04.06.2017, petitioner applied for
the change in her High School mark-sheet and
certificates. The form required to be filled up for
the said purposes had columns for change of
name and other details but was silent about the
change
in
gender.
Petitioner
approached
different authorities and Director, Ministry of
Social Justice and Empowerment, New Delhi
also sent a letter dated 22.06.2017 to the
Secretary, U.P. Board requesting them to change
petitioner's name and gender. Since, all the
required documents were provided by the
petitioner, the principal of Children Academy
Public School also wrote a letter dated
03.07.2017 to the Secretary, U.P. Board
requesting for a change in petitioner's name and
gender. The Secretary, U.P. Board by a letter
dated 14.07.2017 sought a clarification from the
State Government as neither the rules nor the
Intermediate Education Act, 1921 had any
provisions
with
regard
to
these
new
circumstances. On a reminder of the Director,
222 INDIAN LAW REPORTS ALLAHABAD SERIES
Ministry of Social Justice and Empowerment,
New Delhi, Director of Secondary Education,
U.P. also issued a letter dated 17.08.2017 to the
State Government requesting it for taking
appropriate measures in the matter. Meanwhile,
the Secretary, U.P. Board by letter dated
07.09.2017 also required the petitioner to submit
her medical certificate with regard to the gender
change issued by the Chief Medical Officer. The
State Government vide letter dated 15.07.2017
also communicated its decision and required the
Secretary, U.P. Board to consider the case of
petitioner.
The
matter
in
the
aforesaid
background was placed before the Examination
Committee of the U.P. Board. The Examination
Committee in its meeting dated 10.01.2018
decided that changes of name and gender as
requested by the petitioner cannot be made as
neither the Intermediate Education Act, 1921 nor
regulations framed there under contain any such
provision. The decision of the Examination
Committee was communicated to the petitioner
by letter dated 27.01.2018. By letter dated
02.02.2018 original mark-sheet of the petitioner
was also returned to her without affecting any
changes. In the said background petitioner has
approached
this
Court
with
the
prayers
aforesaid.

4. Learned counsel for the petitioner submits
that with the development of medical science this
challenges of conflict in personality and body
stands resolved and in the given circumstances it is
incumbent upon different authorities to make
provisions for change of older records. He relies
upon the judgment passed in case of National
Legal Services Authority Vs. Union of India &
Others; reported in [(2014) 5 SCC 438]
(hereinafter referred to as 'NALSA' case). He
submits that right to decide self identity and gender
is recognized by the Supreme Court in NALSA
case and directions were also issued to the State
Governments to grant legal recognition of gender
identity and further directions were also issued.
Petitioner identities herself as a female and has
also gone a psychological treatment and gender
reassignment
surgery.
Thus,
appropriate
Governments as well as the Boards are obliged to
give effect to the changes required in her
educational records. This new development in
medical science is also addressed by the Central
Government by enacting The Transgender Persons
(Protection of Rights) Act, 2019 (hereinafter
referred to as 'the Act') and by framing rules under
the same. Section 2(k) of the aforesaid Act reads:-

"2(k) "transgender person" means a
person whose gender does not match with the
gender assigned to that person at birth and
includes trans-man or trans-woman (whether or
not such person has undergone Sex Reassignment
Surgery or hormone therapy or laser therapy or
such other therapy), person with intersex
variations, genderqueer and person having such
socio-cultural identities as kinner, hijra, aravani
and jogta."

5. Section 3 of the Act prohibits
discrimination against any transgender person on
the grounds mentioned in the said section which
includes:-

"(a) denial, or discontinuation of, or
unfair treatment in, educational establishments
and services thereof;

(e) denial or discontinuation of, or
unfair treatment with regard to, access to, or
provision or enjoyment or use of any goods,
accommodation,
service,
facility,
benefit,
privilege or opportunity dedicated to the use of
the general public or customarily available to
the public.

(i) the denial of access to, removal
from, or unfair treatment in, Government or
private establishment in whose care or custody a
transgender person may be."

6. Section 4 of the Act provides a
transgender person to have a right to be
recognized as such and a transgender person
11 All. Shivanya Pandey Vs. State of U.P. & Ors.
223
under Section 4(2) of the Transgender Protection
Act, 2019 is also given a right to self perceived
gender identity. Section 5 provides right to
transgender person to apply before the District
Magistrate by way of an application for issuance
of certificate of identity as transgender person in
the manner prescribed. Under Section 6, the
District Magistrate is required to issue a
certificate upon an under Section 5 as per the
procedure prescribed. The gender in all official
documents is recorded as per certificate issued
under Section 6(1). Section 7 provides that in
case after issuance of a certificate under Section
6(1) the transgender person undergoes surgery to
change gender, such person may make an
application, along with a certificate issued to
that effect by the Superintendent or Chief
Medical Officer of the medical institution in
which that person has undergone surgery, to the
District Magistrate for revised certificate in the
prescribed manner. On such an application, the
District Magistrate, on being satisfied is required
to issue a certificate indicating change in gender
and such change would entitle a person to get
the required changes made in the birth certificate
and other official documents relating their
identity.

7. Learned counsel for petitioner submits
that as per the judgment of Supreme Court
passed in NALSA case(supra) as well as
procedure of the Act, petitioner is entitled for
issuance of appropriate certificate with regard
to change of gender.

8. Opposing the same, learned Standing
Counsel submits that with regard to change of
gender, the certificate can only be issued
under Section 7 of the Act to a person who is
having a certificate under Section 6 of the Act.
Since, petitioner is not having a certificate
under Section 6 and had changed his gender
before coming into the force of the Act,
petitioner is not entitled to apply under
Section 7 of the Act.

9. The very purpose of bringing in force
the Act is to provide equality and respect to the
transgender persons. The Act is a socially
beneficial legislation and therefore, this Act
cannot be given an interpretation which would
defeat the very purpose for which the same is
brought in force. It has to be interpreted in a
manner that solemn purpose for which it is
legislated is achieved. The purpose is to give
recognition to transgender persons as they
perceived themselves and, in case, they undergo
a gender reassignment procedure, to provide
them appropriate changed certificates and
identity documents. Therefore, Section 7 of the
Act cannot be given a meaning confined in the
manner argued by learned Standing Counsel.
Section 7 is required to be interpreted in a
manner that the transgender persons who are
issued a certificate under Section 6 or persons
like petitioner who had undergone the gender reassignment procedure prior to coming into force
of the Act, both are held entitled to apply before
the District Magistrate for issuance of a
certificate indicating change in gender. Only on
the basis of such a certificate issued by the
District Magistrate under Section 7 of the Act
the transgender person can apply for change of
their
birth
certificate
and
other
official
documents relating to their identity. Denying
such a right to persons who had already
undergone the gender re-assignment procedure
would frustrate the very purpose of the Act, as
large number of persons would be left out
discriminated in the society.

10. In view of the aforesaid, petitioner is
permitted to submit an application under Section
7 of the Act before the District Magistrate. The
District Magistrate shall broadly following the
procedure under the Transgender Persons
(Protection
of
Rights)
Act,
2019
and
Transgender Persons (Protection of Rights)
Rules, 2020 get the fact of the gender reassignment verified and on being satisfied issue
the required certificate to the petitioner. Such a
224 INDIAN LAW REPORTS ALLAHABAD SERIES
procedure shall be completed by the District
Magistrate within a period of 60 days from the
date petitioner applies before him along with a
certified copy of this order. On the basis of the
certificate issued by the District Magistrate,
petitioner shall be at liberty to approach the
authorities concerned i.e. Respondent no.2
Secretary,
Board
of
High
School
and
Intermediate Education, Allahabad (U.P.) and
respondent no.3 Chairman, Council for the
Indian Schools Examination, New Delhi (CISE
Board) for changing her educational records and
issue her fresh changed mark-sheets and
certificates. Respondent no.2 and 3 shall also
take immediate steps for change of name and
gender
in
educational
mark-sheets
and
certificates of the petitioner and issue fresh
changed mark-sheets and certificates to her, as
per the certificate issued by the District
Magistrate to the petitioner. Such an exercise
would be completed within a period of four
weeks from the date petitioner approaches the
Boards along with a certified copy of this order
and the certificate issued to her by the District
Magistrate.

11. With the aforesaid, present writ
petition stands allowed.
----------
(2021)11ILR A224
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.11.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Misc. Single No. 32710 of 2018

Ram Narayan ...Petitioner
Versus
Civil Judge(Sr. Div.) Ambedkar Nagar & Ors.
 ...Respondents

Counsel for the Petitioner:
Shobh Nath Pandey
Counsel for the Respondents:
Badrish Kr. Tripathi

A. Civil Law - Civil Procedure Code, 1908 -
Section 42 - The law is clear that the Court to
which decree is transferred under Section 42
has all the powers and jurisdiction of the Court
that originally had jurisdiction to execute the
decree and which as been transferred to forum
for
execution.
Therefore,
the
Civil
Judge,
Ambedkarnagar erred in charging Court to whom a
decree is transferred for execution to assign the task
of execution alone, and not assigning the other duties
of the court of execution. (Para 7)
Writ Petition Disposed of. (E-10)

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner has applied under Article
227 of the Constitution to set aside the
proceedings of Execution Case No. 9 of 2017,
Ram Ujagir v. Vinod, pending on the file of the
learned
Civil
Judge
(Senior
Division),
Ambedkarnagar. The decree, whereof execution
is now sought, was passed in a partition suit that
is dreadfully ancient. The suit is Original Suit
No. 138 of 1925. The preliminary decree in the
suit was passed on 07.12.1926. The petitioner,
who appears to be a successor of one of the
defendants to the suit and a judgment-debtor, is
at issue with the respondents, who are the
successors or assigns of the plaintiff or the
decree holders. The issue is about the bar of
limitation to the execution of the final decree.
According to the petitioner, the final decree was
passed on 18.01.1988, whereas, according to the
respondents, it was passed on 04.01.1996. It
appears that this wide variation in dates comes
about on account of the time spent in depositing
the requisite court fee payable on the shares of
parties. This Court does not wish to express any
opinion about the date on which executable final
decree for partition came into existence.

2. The proceedings for execution were
instituted on 12.01.2011 before the Court of