Madras High Court: In a landmark Judgment, G.R. Swaminathan, J. has held that 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. While holding so, said the Court, “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.”
Arunkumar and Srija got married to each other in October, 2018 at a temple in Tuticorin as per Hindu rites and customs. It may be noted that Srija is a transgender. The marriage was certified by the Village Administrative Officer. The temple authorities where the marriage was performed, declined to vouch for it. When Arun and Srija went to register their marriage, the Joint Registrar refused the registration which was confirmed by the District Registrar. Challenging the refusal to register their marriage, Arunkumar and Srija filed the present petition.
Who is a “bride”
It was contended on behalf of the authorities that as per Section 5 of the Hindu Marriage Act, 1955, the “bride” must have completed that age of 18 years, and further that the term “bride” can only refer to a “woman on her day of wedding”. Srija, it was contended, is not a woman, but a transgender.
The Court did not agree with such a contention. It relied on the path-breaking judgment of National Legal Services Authority v. Union of India, (2014) 5 SCC 438 wherein the Supreme Court has upheld the transgender persons’ right to decide their self-identified gender. That decision has been cited with approval in K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1 and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. In the present case, the Court observed that: “the expression ‘bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning.” It was observed that a statute must be interpreted in the light of the legal system as it exists today. It was also noted that in Shafin Jahan v. Asikan K.M., (2018) 16 SCC 368, the right to marry a person of one’s choice was held to be integral to Article 21 of the Constitution.
“For too long the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream.”
The Court held: “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 duty consideration is how the person perceives herself.”
Ban on sex reassignment surgeries on children
The Supreme Court in the NALSA case categorically stated that no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. The High Court, however, noticed that the mandate in NALSA Case was not being honoured. The Court directed the Government of T.N. to issue a Government Order so as to effectively ban sex reassignment surgeries on infants and children. The Secretary to Government, Health and Family Welfare Department was directed to file a compliance report within 8 weeks.
“Any intersex child is entitled to and must stay within the folds of its family. The running away from the family to the margins and beyond is a fatal journey that must be arrested. Time has come when they are brought back from the margins into the mainstream.”
Financial incentive for inter-caste marriage
The Court noted Arunkumar is a Hindu Kuravan and Srija belongs to Saiva Vellar community. The Government of India has introduced “Dr Ambedkar Scheme for Social Integration through Inter-Caste Marriages” to encourage inter-caste marriages. Arunkumar and Srija were held to be clearly entitled to get a financial incentive as set out in the said scheme. They were permitted to submit an application to the Director, Ambedkar Foundation, who shall on being satisfied about their eligibility, disburse the incentive amount.
Holding that Srija’s fundamental rights guaranteed under Articles 14, 19(1)(a), 21 and 25 have been infringed, the Court quashed the impugned orders and directed the Joint Registrar to register Arunkumar and Srija’s marriage. With the directions as noted above, the present petition was disposed of. [Arunkumar v. Inspector General of Registration, WP(MD) No. 4125 of 2019, dated 22-04-2019]