Nishant Sirohi

| @nishantssirohi | April 23,2019

In a landmark judgement, the Madurai Bench of the Madras High Court has upheld the right to marry for transgender persons.  The court in its judgement held that a person who is born intersex but identifies herself as a woman should be treated as “bride” under Section 5 of Hindu Marriage Act, 1955 (the Act).

Directing that the marriage between a male and the transwoman be registered under the Act, Justice G R Swaminathan in his judgement held that a transsexual was also a “bride” and the term referred to in the Act would not necessarily mean only to a woman.

A marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same. By holding so, this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart”.

Facts of the case

 

The couple, Arun Kumar and Srija, submitted a memorandum for registration of their marriage under Rule 5 (1) of the Tamil Nadu Registration of Marriage Rules in Form 1 before the Joint Registrar, Department of Registration. They approached the High Court after the registration authority refused to recognize and register their marriage.

Even though the village administration officer had already certified that the marriage between the two had in fact solemnized in a temple, the registration officer based his refusal on the stand that the marriage between Arun Kumar and Srija could not be recognized as the latter was a transgender person.

 

Court draws distinction between gender and sex

 

Justice Swaminathan recalled the principle proclaimed by the Supreme Court in NALSA v Union of India [(2014) 5 SCC 438] on the third gender and held:

“Sex and gender are not one and the same. A person’s sex is biologically determined at the time of birth. Not so in the case of gender. That is why after making an exhaustive reference to the human rights jurisprudence worldwide in this regard, the Hon’ble Supreme Court held that Article 14 of the Constitution of India which affirms that the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India would apply to transgenders also.

Transgender persons who are neither male/female fall within the expression ‘person’ and hence entitled to legal protection of laws in all spheres of state activity as enjoyed by any other citizen of this country.

Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before the law and equal protection of the law and violates Article 14 of the Constitution of India”.

Recalling the principles affirmed in NALSA judgement, he said gender identity fall within the domain of a person’s personal autonomy and involved their right to privacy and dignity. “It is not for the State authorities to question this self-determination of the second petitioner herein,” he said while referring to Srija.

A transwoman is a ‘Bride’ under Section 5 of Hindu Marriage Act, 1955

 

Section 5 of the Hindu Marriage Act which provides the conditions for a Hindu Marriage, refers to  “the party” as “bridegroom” and “bride” and makes no specific mention of the gender. Section 5 reads:

S.5 – Condition for a Hindu Marriage.  A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party, –

(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity or epilepsy;

(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

The Court rejected the State’s contention that a transgender woman could not be viewed as a “Bride” under Section 5 and held that, “the expression “bride” occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning. … the court is free to apply the current meaning of a statute to present day conditions”.

The Court observed that “When the right of the transgender persons to marry has been upheld by the Hon’ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act. One can have a civil marriage. One can also have a sacramental marriage. The petitioners’ marriage was solemnized in a temple. Therefore, their fundamental right under Article 25 has also been infringed in this case”.

“Seen in the light of the march of law, the expression “bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include within its meaning not only a woman but also a transwoman. It would also include an intersex person/transgender person who identifies herself as a woman. The only consideration is how the person perceives herself”.

TN Govt directed to ban forced Sex Reassignment Surgery on intersex children

 

Separately, Justice Swaminathan also directed the government of Tamil Nadu to issue an order to “effectively ban sex reassignment surgeries on intersex infants and children”.

Quoting from the Supreme Court’sNALSAjudgement, he said intersex children must be given their time and space to find their true gender identity and no one should “be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity”.

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