When 43-year-old Sarwait Patarachokchai arrived in Srinagar in March 2007, she planned to spend her week-long holiday like any other tourist. Spring was blossoming, the weather was getting warm; she was to stay on a houseboat, visit the city’s famous landmarks and shop at the Kashmiri handicraft stores.
But three years later, Patarachokchai is still in Srinagar, embroiled in a legal suit against the man she met and fell in love with on that first trip to the valley: a handicraft salesman in his late 20s called Mohsin Shah. The case is complicated for one principal reason: Patarachokchai was born a man, but since meeting Shah has had a sex change and is now a woman. The half-Thai, half-Pakistani tourist lives in Germany and, although counted a woman there, her legal status is still that of a man on her passport and, therefore, in Kashmir.
Although Patarachokchai had the surgical procedure to make her a woman only in 2009, she has lived and dressed as one since her teenage years. “I always thought I was a girl even in high school,” she says. “I grew my hair long and wore girls’ clothes, I saw many doctors in Germany and they accepted I am a woman.” Patarachokchai says she told Shah she was “not a real girl”, and he professed to have fallen in love with her.
Love and lawsuit: Sarwait Patarachokchai alleges she paid her boyfriend’s family Rs 36 lakh. Javeed Shah/Mint
She claims Shah promised to marry her if she would return to Germany for a sex change operation, took her money and then abandoned her for a local girl from a rich family. Her lawyers are now bringing charges of fraud, breach of trust and rape against her erstwhile boyfriend.
The story of a transexual tourist’s doomed love affair with a local salesman has provoked scandal in Srinagar, and there are enough lurid details in the case to fill a gossip magazine. But Patarachokchai’s story also highlights a little discussed grey area in the Indian Penal Code, which itself was only adjusted to decriminalize homosexuality two years ago. As it stands, the law still has difficulty in providing a coherent rights structure for transgender individuals, and cases of unresolved transgender legal suits exist all over India, according to experts and activists in the field.
Arvind Narrain, a human rights activist and lawyer with the Alternative Law Forum, Bangalore, says the problem is due to the lack of basic official recognition. “In Indian law, they don’t recognize the third gender category,” he says, “but recently there have been a number of changes. Passport categories now include ‘E’ for eunuch, other people born men have got passports in the name of women.” Likewise, the 2011 Census was the first to adopt a third gender category and, once the results are released, it should provide valuable data on the number and whereabouts of transgender people in India.
Narrain says public and international pressure has improved the situation for gender transfer, especially in the south, “but it’s still a struggle”. He cites the recent example of a young man in Tamil Nadu, born a woman, who has been trying to get his name changed on his exam certificates. “The board of education has told him he must go to court,” says Narrain. “It happens all the time.”
Patarachokchai’s allegations against her lover are manifold. She is accusing Shah, his mother and sister of duping her into giving them Rs 36 lakh and, further, has claimed that Shah drugged and raped her in Srinagar. The couple met on Day 3 of her holiday, she says, at a handicrafts showroom. “After we met he followed me all week,” she says. “He came to meet me every day. After I knew him three days, he took me to his home to visit his mother and sisters.”
Two months after their initial meeting, Patarachokchai says she returned to Kashmir to stay with Shah’s family at their home in Nishat. He proposed then, she says, and since she was also a Muslim, the family embraced her despite the fact that Patarachokchai was still physically a man. “He swore that he would not have a girl except me,” she says. “His mother said I was like her daughter and she gave me a wedding ring.” Patarachokchai says she lived in Srinagar with Shah on and off for two years, providing the family with money when Shah lost his job, buying them a car, giving him money to set up a travel agency and paying for repairs at his house. She runs a beauty salon for women in Germany.
Then Shah asked her to go back to Germany. “He promised me that after I do something more to my body he will marry me in a nikah (a Muslim marriage ceremony), and afterwards we would get married in Germany,” she says. But once she returned to Europe, Shah cut off communication with her, she claims, and when she heard a rumour from his cousin that he had married someone else, a local girl whose family owns a big hotel in Srinagar, she returned to Kashmir to confront them. Patarachokchai claims they preyed on her vulnerability as a tourist and a transexual to extract money from her. “Earlier, they accepted me, called me a sister,” she says, “now they say you are a man.”
The issue of Patarachokchai’s gender first became problematic when she entered a plea of rape with the Srinagar police, says her lawyer Mohammed Abdullah Pandit, who admits he isn’t sure whether to refer to his client as “he” or “she” (although he claims to have a doctor’s certificate to prove that Patarachokchai is a woman). The original rape charge wouldn’t stick, as Patarachokchai was still physically a man when she was living with Shah. It was therefore changed to a charge under section 377, which deals with “unnatural offences” and, until 2009, included consensual gay sex among its provisions. If the lawyers on both sides are perplexed, even the penal code is hazy here, describing the crime as “carnal intercourse against the order of nature”. Without acknowledging transgender individuals, the law is not broad enough to encompass a case of such modern complexities.
Shah’s lawyers say all the accusations are baseless and that Patarachokchai owes the Shah family Rs 9 lakh.
Patarachokchai claims she wants to make an example of Shah and his family so other tourists won’t be duped in the same way, but her suit is clouded with ifs and buts and the outcome is far from clear. She says that although she has visited the Jammu and Kashmir police several times since returning to Srinagar, they haven’t been active. “They say they will help me, but after that, nothing at all—they say it is a private matter,” she says. “In Germany they have a law that makes me a woman. I am alone here.”