Advice - Rights and Laws, Jun '19
Mihika Poddar explains a recent court verdict on the right to marry for trans persons
on a recent Madras High Court judgement, can now marriage between a
trans person who identifies as trans woman or just woman and a man be
considered legally valid? If yes, does it mean that all marriage and
other related laws will be applicable for the trans person concerned?
What about marriage between a trans man and a woman, or between a third
gender person and a man?
case concerned two Hindu individuals – Arunkumar, a male (or cisgender
man), and Sreeja, a trans woman, who got married at a temple as per
Hindu customs. Both the Joint Registrar No. II – Tuticorin &
District and the District Registrar – Tuticorin & District refused
to register the marriage. The couple filed a writ petition before the
Madras High Court claiming violation of their Fundamental Rights.
government contended that the Tamil Nadu Registration of Marriages Act,
2009, allowed for refusal of marriage if not performed as per the
parties' personal laws, usage or tradition. Here, the Hindu Marriage Act
required the 'bride' to have completed 18 years of age. They argued
that 'bride' referred to a 'woman on her wedding day'. Since Sreeja was a
trans person, she could not be a 'bride'. But the court disagreed with
the government, basing its rationale on the right to
self-identification, and right to marriage.
First, the Madras
High Court reiterated the Supreme Court’s NALSA decision of April 2014,
which upheld “transgender persons’ right to decide self-identified
gender”, directing states to grant recognition to their gender identity
as male, female or third gender. The court said that the guarantee of
equality before law and equal protection of the law under Article 14 of
the Constitution of India extended to all 'persons'. Therefore, it
extended to all trans persons, who were "entitled to legal protection of
laws in all spheres of State activity as enjoyed by any other citizen
of this country". Discrimination based either on sexual orientation or
gender identity was thus in violation of Article 14 of the Constitution.
expression of gender identity was also protected by the right to freedom
of expression under Article 19(1)(a), while self-determination of
gender identity was guaranteed by the right to personal autonomy,
liberty and dignity under Article 21.
Since Sreeja identified as
a woman, her right to such self-determination of gender identity being
constitutionally protected, could not be questioned by the State. This
would mean that recognised by law as a woman, she would be a ‘bride’
even under the traditional definition of the term. Though not expressly
articulated in the Madras High Court judgement, the references to
equality pointed to the conclusion that trans persons were equally
entitled to enjoyment of marriage-related laws, like all other citizens.
The verdict signals winds of change in marriage and family laws that
have so far been unresponsive to the concerns of queer people and the
relationships they enter into.
Second, the Madras High Court
argued that even the term 'bride' under the Hindu Marriage Act was not
static and needed to be interpreted as per “present day conditions”.
This was done by emphasising a constitutionally protected right to marry
for trans persons, relying on several precedents. For instance, in the
apex court’s 2018 judgement in Shafin Jahan Vs. Asokan K. M. and Others,
the right to marry a person of one's choice was held to be a part of
Article 21. In the case Justice K. S. Puttaswamy (Retd.) and Another Vs.
Union of India and Others (2017), the Supreme Court recognised the
right to privacy extending to matters of family life, including “the
decision to enter into a relationship”. The Supreme Court’s NALSA
verdict on transgender rights particularly recognised how civil rights
like the right to marry were contingent upon gender recognition. The
Madras High Court, emphasising on the spirit of the Constitution that
enabled inclusion, explained that trans persons were entitled to the
benefit of existing social institutions, including State-recognised
marriage. This guaranteed their right to a civil union. Further, even
the right to a sacramental marriage was protected by the right to
religion under Article 25. Given that both the individuals concerned
were Hindu, they were entitled to be governed by their personal law,
that is, the Hindu Marriage Act. Thus, their constitutional right to
marriage, read together with religious freedoms, required that their
marriage be registered under the Hindu Marriage Act if they so desired.
In this light, the expression 'bride' was read to include a trans woman
(and even an intersex person who identified as a woman or as a trans
woman). Thus, a blanket right to both sacramental and civil marriage was
given constitutional protection, irrespective of one’s gender identity
(or differences in sexual development).
It must also be noted that
though the judgement centred around the definition of ‘bride’ under the
Hindu Marriage Act, the same rationale would apply to the term
‘bridegroom’ as well, thus covering trans men as well. The judgement was
thus novel as it allowed for an expansion of the traditional
understanding of marriage between cisgender men and women, creatively
interpreting statutory provisions in light of the NALSA judgement.
Though the analysis was limited to registration of marriage, if a
marriage were to be validly registered, all resultant rights accruing
due to marital status should follow.
This logic may also be
extended to the recognition of marriages under other laws. For instance,
though the Special Marriage Act, 1954, as well as the Parsi Marriage
and Divorce Act, 1936, use the words ‘male’ and ‘female’ for parties to a
marriage (instead of ‘bride’ and ‘bridegroom’), the right to
self-determination would still allow trans men and trans women
identifying within the binary to register their marriages under these
Acts. Even a 2018 Law Commission of India Consultation Paper on Reform
of Family Law argued that matrimonial rights should be available to all
those who inhabited the now broadened (post NALSA verdict) definitions
of ‘man’ and ‘woman’.
However, for individuals identifying beyond
the male-female binary (say, as third gender), it might be difficult to
apply the Madras High Court’s second argument; instead one would have
to argue for a contextual interpretation of male and female. A specific
amendment to the marriage law might be required for clarity. The
judgement pertained to codified Hindu personal law, but similar analysis
in the case of Muslim personal law would be difficult given its lack of
codification. Notably, transgender marriages have been recognised under
Sharia law in Pakistan, though the government is yet to pass official legislation in this regard.
The Madras High Court’s judgement was a
positive step towards ensuring civil rights beyond mere gender
recognition. It created a gateway for trans persons to access age old
laws that were designed for cisgender people, which could act as a
precedent for accessing other civil rights. The recognition of a
constitutional right to marry also laid open the doors for a similar
challenge if marriage between two persons of the same sex or same gender
were to be refused registration.