Case BriefsHigh Courts

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.”

Facts

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 368the 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.

Decision

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]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.C. Dharmadhikari and Sangitrao S. Patil, JJ. heard a petition for quashment of circular issued by the respondent, Registrar of Marriages, appointed under the Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act, 1998 to the extent it mandates presence of priest/purohit, who performs the ceremony to be present before the office of the Registrar of Marriage during the registration of marriage as a witness. The Bench allowed the petition and the memorandum was quashed and set aside.

While the reason for issuing the circular was to prevent registration of fake marriages, the petitioner contended that the Act only provided for the presence of the parties and three witnesses while registration of marriage and that the priest/purohit who performed it was not required. It would become highly difficult for the petitioner to be present for the registration of each and every marriage that he performs and also he would not be able to attend his regular functions in the temples or the other places, through which he earns his livelihood.

Even the provisions of the Hindu Marriage Act, 1955 leave it to the volition of the parties to take assistance of a priest in the solemnization of a marriage. Therefore, it would be difficult for the followers of certain groups or faiths who do not engage any priest in the performance of any ceremony to ensure his presence during registration. [Umesh@ Girish Arvind Pujari v. Registering Authority, Jalgaon City Municipal Corporation, 2017 SCC OnLine Bom 7240, decided on 01.08.2017]

Hot Off The PressNews

The Department of Legal Affairs forwarded a request received from the Legislative Department, asking the Law Commission to examine and submit a report with regard to various issues relating to compulsory registration of marriages. This Report proposes to amend the Registration of Births and Deaths Act, 1969 to include compulsory registration of marriage within its purview.

The Commission highlights that the recommendation is neither aimed at eliminating diversity of personal laws nor it aims to nullify the existing provisions for registration of marriages under different state laws. The Commission notes that in different parts of the country marriage registration is regulated by one of the three central laws – the Births, Deaths and Marriages Registration Act, 1886, the Registration Act, 1908 and Registration of Births and Deaths Act, 1969, this creates lot of confusion with registration officials as well as people.

The Commission suggested that “the Births, Deaths and Marriages Registration Act, 1886 be repealed and Births and Deaths Registration Act, 1969 be re-named as ‘Births, Deaths and Marriages Registration Act’ with a provision that officials working and records maintained under the former Act shall be deemed to be working and maintained under the latter Act”. The idea of these recommendations is not to lay down a procedure recognised for solemnisation of marriage but only for registration of marriages.

The Commission also recommends making registration of marriage online as far as possible and also to link registration of marriage to the unique identification number (UID). Here are some other important recommendations:

i. Separate standalone legislation may not be required so long as an amendment is made to the Births, Deaths Registration Act to include Marriages.

ii. The recommended bill would only serve as a guiding principle which would apply across the country but specific amendments to the scheme can be added by the States.

iii. The Registrar who is responsible for the registration of births and deaths shall be responsible for the registration of marriages as well.

iv. if the Birth or Marriage or Death is not registered within the specified time limit, then the Registrar shall on the payment of a late fee, register the death or birth (a) within a period of 30 days (b) within one year, only with the written permission of the prescribed authority; and (c) after one year, only on an order of a First Class Magistrate. It provides for a penalty of Rs. 5 per day in case of delay in registration of ‘marriage without a reasonable cause’.

v. Village Panchayats, local civil bodies and municipalities should create awareness with regard to marriage registration.

To read the Report, click HERE