Transgender Act recognises some form of trans marriage: Petitioners on Day 5 of same sex marriage hearings

Advocate Karuna Nundy asserted that the Special Marriage Act must include either the term 'non-binary' or 'third-gender spouse' to accommodate marriages between transgender persons.

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ON Day 5 of the hearing of the same-sex marriage petitions at the Supreme Court, advocate Karuna Nundy sought a declaration from the court to include the rights of queer and non-heterosexual same-sex couples to marry under 'secular' legislation, namely the Foreign Marriage Act, 1969 and the Special Marriage Act, 1954. She also sought the inclusion of a provision for recognition of same-sex marriages of Overseas Citizens of India (OCI) cardholders under the Citizenship Act, 1955 (as amended in 2019).

The Supreme Court Constitution Bench headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud and comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha continued to hear a batch of petitions in Supriyo@Supriya Chakraborty versus Union of India & Ors, on the limited issue of whether gender-neutral situations can be accommodated under the Special Marriage Act.

A person can assert different gender identities during an existing marriage 

Nundy made a submission regarding assertion of a different gender identity by a person during a marriage and the effect it has on the subsistence of the marriage.

She referred to Rule 5 (Issue of certificate of identity for a transgender person under Section 6 of the Transgender Persons (Protection of Rights Act, 2019) and Form 2 (format of affidavit to be submitted by a person applying for a certificate of identity for transgender persons) of the Transgender Persons (Protection of Rights) Rules, 2020.

Form 2 uses the term gender-neutral "spouse", indicating that a person can self-identify with another gender identity even during an existing marriage.

A similar argument had been put forth by senior advocate Anand Grover during yesterday's proceedings. According to Grover, the law does not make marriages void or voidable when during the marriage, the cis-male or cis-female assumes a different gender.

Justice Bhat had said, "The law accommodates it because this is not a ground for nullity or divorce by the other spouse. It is because there are various possibilities. There could be children that are dependent on the family."

On a different issue, senior advocate Saurabh Kirpal yesterday warned the court of the possibility of 'lavender marriages' occurring in society as a result of non-recognition of non-heterosexual marriages. 'Lavender marriage' is a term given to marriages undertaken as a matter of convenience to conceal the socially stigmatised sexual orientation of one or both partners.

Justice Kaul asked for clarification on Nundy's arguments. He asked whether Nundy is trying to make a distinction between a situation where a new identity is asserted after marriage versus a situation where a new identity is asserted pre-marriage. In the latter, the marriage will not be allowed.

Nundy clarified that the Act currently recognises some form of transgender marriages where the marriage is existing prior to the declaration of identity.

Justice Bhat again offered a clarification that the legislature envisaged that such a situation can exist and that is why it did not disturb pre-existing marriages.

He said, "In a hetero-normative marriage, which later turns out to be one [partner] recognises their gender not as a female or male … but as a transgender person… at this stage, the law enables this much: It does not upset the pre-existing marriage."

He further noted, "Your dilemma is the next step, which is that having recognised pre-existing marriage, have you not enabled two transgender persons to come together and celebrate their union."

Nundy suggested that the term 'third-gender spouse' or 'non-binary' can be used in secular legislation like the Special Marriage Act along with 'husband' and 'wife'. The terms 'husband' and 'wife' must include 'trans husband' and 'trans wife'. She clarified that the term 'non-binary' may be added instead of 'third gender spouse' as the latter term is often criticised for being non-inclusive of certain identities.

She relied on the Madras High Court's judgment in Arunkumar & Sreeja versus The Inspector Gender of Registration & Ors (2019), wherein the court observed that the term 'bride' under Section 5 (conditions for a Hindu marriage) of the Hindu Marriage Act, 1955, cannot have a static or immutable meaning. The court had held that a marriage solemnised between a man and a transwoman under the Act is a valid marriage.

Nundy suggested that the Supreme Court should definitely grant these proposed changes as they have the mandate of the judgment in National Legal Services Authority (NALSA) versus Union of India (2014).

She relied on the doctrine of preferential protection to women as accorded under Article 15(3) of the Constitution. According to her submission, non-binary persons must be accorded heightened protection as they have suffered historical discrimination which must be remedied, as recognised by the Supreme Court in NALSA.

Further, Nundy told the court that OCI card holders are in a catch-22 situation because they can neither get married under the Special Marriage Act nor under the Foreign Marriage Act.

When she wanted to give an example of the travails faced by a transgender couple, the CJI told her that the constitutionality of legislative provisions has to be looked at from a larger perspective, and that it cannot be challenged merely because it causes injustice in one person's case.

Advocate Arundhati Katju limited her submissions to hearing a few queries raised by the court during yesterday's hearing. To be specific, she answered how far the court can go in interpreting a particular statute, which in the present case is the Special Marriage Act.

She told the court that so far, the case for the petitioners has been the expansion of the existing legislation so as to interpret the terms 'husband' and 'wife' as 'spouses', and 'male' and 'female' as 'persons'. This not only updates the legislation, but also makes it attuned to constitutional guarantees, she averred.

However, in yesterday's hearing, the issue of how much personal laws can be touched in the context of the realisation of marriage-equality rights had surfaced in the context of the provisions under the Special Marriage Act.

Katju offered her reasoning that these are complex issues and the court cannot decide all of them in one go. The court will have to decide as and when issues emerge, she submitted.

Further, Katju told the court that not all couples wish to procreate but having a child as a married couple is a part of the human experience. She said: "Today marriage is the getaway for couples to have children as per the legal framework."

"There are already [LGBTQIA++] couples who have children… In the absence of recognition of the marriage of their parents, what the law does is that it renders one partner in the relationship a stranger to the other… It also renders the child stranger to their parents, in law. That child has no relationship, in law, to one of its [parents] who may love [them] equally as a [parent] in an opposite sex couple," she added.

Joint adoption prohibited 

Advocate Amritananda Chakravorty argued that the Adoption Regulations, 2022 of the Central Adoption Research Authority (CARA) prohibit joint adoption by non-heterosexual couples and by transgender couples.

She also added to the point of Katju and said that it is not in the best interest of the child if their relationship with one of the parents is not recognised.

Chakravorty is representing a non-heterosexual couple, who are married under Danish law and are seeking recognition of their marriage in India. However, their marriage has not been recognised under the Foreign Marriage Act on the grounds of sexual orientation.

Further, she added that Adoption Regulations go beyond the remit of the Juvenile Justice (Care and Protection of Children) Act, 2015, as the definition of prospective adoptive parents under Section 2(49) only uses the term 'person' or 'persons'.

The eligibility to be a prospective adoptive parent under Section 57 of the Act is not dependent on the marital status of the spouse. Section 57(2) uses the term 'spouse' specifically and does not go any further.

Previously, in one of the hearings, the CJI had remarked that a single female or male can adopt a child (a male cannot adopt a girl child), but they cannot do so jointly. However, it was pointed out today that as per the Central Adoption Resource Authority (CARA) circular, even those couples in live-in relationships cannot adopt.

She added: "If the Parliament wanted to restrict joint adoption [for non-heterosexual couples], it would have used the term 'marriage'. But it does not. It uses the word 'couple' and 'spouses'. Yes it may be said that as per the Indian law, a couple and spouse is a heterosexual married couple. But that is not what the legislation says. So, how can the Adoption Regulations say that?"

The CARA circular is dated June 16, 2022, and states that those single prospective adoptive parents who are in a live-in relationship with a partner will not be considered eligible to adopt a child.

Chakravorty has challenged Regulation 5(2), which uses the term 'marital status' unlike its parent legislation. Further, she argued that restricting joint adoption for heterosexual couples amounts to discrimination on the grounds of sexual orientation.

Lastly, she added that adoption is not just a right limited to that of the parent but also to the child to have a family.

Senior advocate Jaideep Gupta, appearing for the intervenor Queer Collective of the Indian Institution of Science, warned the court of the consequences of not recognising non-heterosexual marriages. He told the court that people of different sexual orientations are being forced to enter into heterosexual marriages. 

Moreover, these people are also forced into conversion therapy so that they can be cured of a medical disease. 

He submitted a statement of the Indian Association of Clinical Psychologists, which clearly states that conversion therapy is not medically backed and has a negative impact on the well-being of an individual.