Transwomen comes under the ambit of expression “Bride”

Rabia Basaria | Panjab University, Chandigarh | 7th January 2020

Arunkumar vs The Inspector General of Registration (MADRAS HIGH COURT)
W.P.(MD) No. 4125 OF 2019 AND W.M.P. (MD) No. 3220 OF 2019

FACTS:

• Arunkumar got married to Srija, a transwoman, as per Hindu rites and customs at a temple in Tuticorin.
• The village administrative officer has certified their marriage and the temple authorities also permitted to perform their marriage but they declined to vouch for it.
• When they went to Joint Registrar No. II of Tuticorin for registration of their marriage, the Registrar refused to do the same.
• Petitioners (1^st petitioner – Arunkumar, 2^nd petitioner – Srija),  challenged this decision before the District Registrar of Tuticorin but District Registrar also supported the Joint Registrar’s decision.
• At last the petitioners filed the writ petition before Madras High Court.

ISSUE:

Whether the transwomen comes under the ambit of expression “Bride” as mentioned in Section 5 of the Hindu Marriage Act, 1955.

HELD:

The Court held that both the petitioners profess Hindu religion and marriage solemnized between Hindu male and Hindu transwoman was a valid marriage. Transgender persons are the self- identified persons as mentioned in National Legal Services Authority  vs.  Union of India (2014) 5 SSC 438 (N.L.A.S.) which has been further cited with approval in Justice K. S. Puttaswamy  vs.  Union of India (2017) 10 SSC 1 and again in Navjet Singh Johar  vs.  Union of India (2018) 10 SSC 1.

The Court stated that sex and gender are not the one and same. A person’s sex is biologically determined at the time of the birth. Not so in the case in gender. In the case N.L.S.A., the Supreme Court held that Article 14 of the Constitution of India which affirms that the State shall not deny “any person” equality before law or the equal protection of the laws within the territory of India would apply to transgenders also. Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the constitution.

The Court further relying upon the N.L.S.A case stated that gender identity, lies at the core of the personal identity, gender expression and presentation, therefore, it will have to protected under Article 19(1)(a) of the Constitution. And self-determination of gender is an integral part of personal autonomy and it fall under the realm of personal liberty guaranteed under Article 21 of the Constitution. Here in the case the 2^nd petitioner identified herself as woman which falls within the domain of her personal autonomy. The Court also stated it is not for the state authorities to question this self-determination of the 2^nd petitioner.

Both the petitioner herein profess Hindu religion. Their right to practice Hindu religion comes under Article 25 of the Constitution and their marriage performed in temple. Therefore, their fundamental right under Article 25 has also been violated.

The Court held that the expression “bride”  include transwoman and it would also include a intersex person/transgender person who identifies herself as a woman. And directed the Joint Registrar II of Tuticorin to register their marriage. The Court on the second issue i.e. Sex Reassignment Surgery (SRS) directed the Tamil Nadu Government to ban SRS on intersex child.