In the High Court of Madras (Madurai Bench) Writ Jurisdiction (Civil) Writ Petition no: 4125 of 2019 and 3220 of 2019 Petitioner Arunkumar and Sreeja Respondents The Inspector General of Registration and Ors. Date of Judgement 22nd April , 2019 Bench Hon’ble Justice G. R. Swaminarayan
“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.”
The issue discussed in present case are not res integra. In National Legal Service Authority vs. Union of India, the Hon’ble Supreme Court upheld the transgender’s right to decide their self-identified gender. Hon’ble Supreme Court in NLSA case categorically stated that no one should be forced to undergo any medical procedure as a requirement for legal recognition of their gender identity. In Shafin Jahan vs. Asokan K.M. and Ors (2018) 16 SCC 368 the court held that right to marry a person of choice is integral to Constitution of India.
Landmark Cases Referred
- National Legal Service Authority vs. Union of India (2014) 5 SCC 438
- Shafin Jahan vs. Asokan K.M. and Ors (2018) 16 SCC 368
- K. S. Puttaswamy vs. Union of India (2017) 10 SCC 1
Facts of the case
1) First petitioner got married with second petitioner Ms. Sreeja on 31st of October, 2018 at Arulmighu Sanskara Rameswara Temple as per Hindu rites and customs.
2) Village Administrative officer certified the performance of Marriage.
3) Temple authorities permitted the performance of the Marriage but declined to vouch for it.
4) Parties submitted a memorandum for registration of marriage before the third respondent as per Rule 5(1) (a) of Tamil Nadu Registration of Marriage Rules in form 1 to which the third respondent refused to register.
1) Petitioners submitted a memorandum for registration of marriage to the third respondent as per Rule 5(1)(a) of the Tamil Nadu Registration of Marriage Rules. Third respondent refused to register it.
2) Questioning the decision of the third respondent, the petitioners filed an appeal before the second respondent, by which the second respondent vide proceedings in Na. Ka. No. 5876/E2/2018 dated 28th of December, 2018 confirmed the decision of third respondent.
3) In order to challenged the decisions of second and third respondent , petitioners have filed the current writ petition before the Madurai Bench of Madras High Court.
1) Whether the act of refusal to register marriage of petitioners on the basis of sexual orientation or gender identity of the person infringes his/her fundamental rights guaranteed under Article 14 , 19(1)(a) , 21 & 25 of constitution of India ?
2) Whether the word ‘bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 encompasses within its meaning transgender or intersex person?
1) The Hon’ble Judges observed that sexual morphology, sexual identity, sexual orientation, and sexual body image harmonize during physical and social development to culminate in normal sexuality. But they can become uncoupled which can lead to deviations that shift the individual towards either end of the spectrum of common distribution. It doesn’t mean that any such deviation is undesirable or perverse. The court observed that sex and gender are different things. A person’s sex is biologically determined at the time of birth which is not so in the case of gender.
The court said that Article 14 of the Constitution of India affirms that the State shall not deny equality before the law or equal protection of laws to any person. Transgender persons who do not identify themselves as either male or female, fall within the expression ‘person ‘ and hence entitled to get legal protection of laws in all spheres of state activity as enjoyed by any other indian citizen. Therefore the court held that discrimination on ground of gender identity or sexual orientation impairs equality before law and equal protection of law and thereby violates Article 14 of the Constitution of India.
The court noted that Hon’ble Supreme Court has expansively interpreted Article 19(1)(a) & Article 21 so as to encompass one’s gender identity also. The court observed that Gender identity lies at the core of one’s personal identity, therefore it will have to be protected under article 19(1)(a) of the Constitution of India. The court also observed that self declaration of gender is an integral part of self expression and personal autonomy and hence falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.
Therefore the court held that the choice of expression of gender identity as women by the second petitioner falls within the domain of her personal autonomy and involves her right to privacy and dignity to which state authorities can not question.
2) The court observed that the expression bride occurring in Section 5 of the Hindu Marriage Act cannot have a static meaning. The court noted that as per the ‘Justice G. P. Singh’s Principles of Statutory Interpretation’, the court is free to apply the existing meaning of a statute to present day conditions.
In Shafin Jahan vs. Asokan K.M. and Ors (2018) 16 SCC 368, right to marry a person of choice was held to be integral to Article 21.
The court referred NLSA case in which the Supreme Court has observed that transgender persons have been languishing in the margins. As an enabling document, Constitution is inviting them to join mainstream. And hence it would be absurd to deny transgenders the benefit of social institutions already in place in the mainstream.
The Hon’ble Court noted that, both the petitioners profess Hindu Religion and their right to practice Hindu Religion is recognized under Article 25 of Indian Constitution. The Supreme Court has upheld the right of transgender person to marry. Therefore they cannot be kept out of preview of the Hindu Marriage Act and hence their fundamental right of petitioners under Article 25 has been infringed.
The court observed that considering the march of law , the expression ‘ bride’ occurring in S. 5 of the Hindu Marriage Act will have to encompass within its meaning not only woman but also transgender person who identifies herself as a woman. The only consideration is how the person perceives himself or herself.
The court observed that the petitioners fundamental rights of equality before law, freedom of speech and expression, protection of personal liberty, and freedom to practice any religion under Article 14, 19(1)(a) , 21 and 25 respectively are infringed and therefore ordered to quash the impugned orders and directed the third respondent to register the Marriage solemnized between the petitioners.
In the NLSA case the Hon’ble Supreme Court upheld the transgender person’s right to decide their self identified gender. And the central and state government were directed to grant legal recognition to their gender identity such as male, female or third gender. The court referred to NLSA case in which the Supreme Court observed the existence of the third category in indigenous Hindu tradition, Mahabharat. As per the Justice G P Singh’s Principles of Statutory interpretation, the court is free to apply existing meaning of a statute to the present day conditions. The transgenders right to marry being upheld by the Supreme Court, petitioners can not be kept out of the preview of Hindu Marriage Act.
The Hon’ble Court observed that interventions of sex normalisation procedures takes place without the informed consent of the children. Parents often consent to such medical interventions without complete information about it.
A transgender or intersex person is entitled to remain beyond the duality of of male or female, or to opt to identify oneself as male or female. It is entirely individual’s choice.
The word ‘bride’ encompass within meaning a transwoman if she perceives herself as woman. Therefore a marriage solemnized between Hindu male and a Hindu transwoman is valid Hindu Marriage as per Section 5 of Hindu Marriage Act.
“The views of the authors are personal“