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.
The primary issue before the Court was 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 then stated that ‘sex and gender are not one and the same’, where a person’s sex is biologically determined at the time of birth, which is not the case for gender. The Supreme Court had held that Article 14 of the Constitution of India, which affirms that the State shall not deny to ‘any person’ equality before the law or equal protection of the laws within India would apply to transgender persons as well. The Supreme Court in NALSA had stated that transgender persons would fall within the expression ‘person’ and would be entitled to legal protection of laws in all spheres of State activity as enjoyed by other citizens of the country, and therefore discrimination based on sexual orientation or gender identity would impair equality before law and equal protection of laws and violates Article 14 of the Constitution of India.
The Court also relied on the findings of the Supreme Court in NALSA where it was held that gender identity lies at the core of one’s personal identity, gender expression and presentation and has to be protected under Article 19(1)(a); and secondly, that recognition of one’s gender identity lies at the heart of the fundamental right to dignity, which is protected under Article 21 of the Constitution. The Supreme Court stated that self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India. Accordingly, the Madras High Court observed that Sreeja’s choice to express her gender identity as that of a woman falls within the domain of her personal autonomy and cannot be questioned by the State authorities.
The Court stated 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.
Further, the Court again referred to NALSA v Union of India, in which the Supreme Court recognised transgender persons’ right to marry as a fundamental right under the constitution. Thereafter, the Court stated that 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 noted that both petitioners profess the Hindu religion and their right to practice Hindu religion is recognised under Article 25 of the Constitution of India. Given that the right of transgender persons to marry has been upheld by the Supreme Court, they cannot be kept out of the purview of the Hindu Marriage Act. The Court accordingly stated that denying the petitioners’ Hindu marriage infringes their fundamental right to practice their religion under Article 25 of the Constitution of India. The Court held that the expression ‘bride’ would include transwomen and intersex persons/transgender persons who identify themselves as women, with the only consideration being how they perceive themselves.
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.
After deciding this issue, the Court decided to 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 made an additional observation that parents must be encouraged to feel that the birth of an intersex child is not a matter of embarrassment or shame and left it to the Government to launch awareness programmes.
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. The Court affirmed Ms. Sreeja’s self-identification as a woman and recognised her right to self-identify her gender and be included, along with other intersex/transgender persons who identify as women, within the definition of ‘bride’. It noted the violation of her fundamental rights by the State authorities that refused to register her marriage.