Arunkumar got married to Sreeja, a transwoman, on 31 October 2018 at a temple in Tuticorin, as per Hindu rites and customs. When they submitted a memorandum for registration of marriage to the Joint Registrar No. II of Tuticorin, the Registrar refused to register the same. The petitioners challenged this decision before the District Registrar of Tuticorin vide proceedings dated 16 November 2018, who in turn confirmed the Joint Registrar’s decision on 28 December 2018. This decision was challenged before theMadras High Court.
Whether the term ‘bride’, as mentioned in Section 5 of the Hindu Marriage Act (HMA) meant only women, or included transgender persons as well, given that Sreeja was a transwoman.
The Court stated that a marriage solemnized between a male and a transwoman, both professing Hindu religion, was a valid marriage. The Court stated that transgender persons had the right to decide their self-identified gender, as upheld by the Supreme Court in NALSA v Union of India, which has been reiterated in Justice K. Puttaswamy v Union of India and again in Navtej Singh Johar v Union of India.
The Court also held that the expression ‘bride’ in the HMA cannot have a static meaning and must be interpreted in light of the legal system as it exists today. The Court then cited Article 16 of the Universal Declaration of Human Rights, which includes the right to marry as a human right as well as Shafin Jahan v Asokan K.M. and Ors. where the right to marry a person of one’s choice was held to be integral to Article 21 of the Constitution of India. The Court also went on to cite Justice K. Puttaswamy where the Supreme Court referred to the US Supreme Court decision in Obergefell v Hodges in which the Court had noted that it would be contradictory to recognise a right to privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in society. Since the Constitution of India is an enabling document that is inviting transgender persons to join the mainstream and they cannot be denied the benefits of social institutions that are already in place in the mainstream.
The Court, therefore, held that refusal to register the marriage of Ms. Sreeja would amount to a violation of her fundamental rights under Articles 14, 19(1)(a), 21 and 25 of the Constitution of India and quashed the orders of the Joint Registrar No. II and the District Registrar of Tuticorin and directed the Joint Registrar No. II to register the marriage of the Petitioners.
The Court also address a second issue on sex reassignment surgery (SRS) or Intersex Genital Mutilation (IGM) of intersex children. The Court pointed out that according to the judgement in S. Amutha v C. Manivanna Bhupathy consent of a parent cannot be considered as the consent of the child and as held in NALSA no one shall be forced to undergo medical procedures as a requirement for legal recognition of their gender identity. The Court directed the Government of Tamil Nadu to issue a Government Order to ban SRS on intersex infants and children. The Court also noted that since Arun Kumar, the first petitioner was from an SC community, they were entitled to obtain financial incentives under the Dr Ambedkar Scheme for Social Integration through Inter-Caste Marriages.
This is the first judgment in India where the right to marry under Article 21 of the constitution has been affirmed for transgender persons and holding that ‘bride’ under the Hindu Marriage Act would cover transgender persons who identify as women. It affirmed the inclusion of intersex/transgender persons who identify as women, within the definition of ‘bride’.