At last count, there were 9 marriage petitions pending in various Indian High courts. Collectively, these petitions mount a multi-faceted attack on various Indian marriage laws for their failure to provide for queer marriages, either expressly or implicitly. In this blog, I identify the specific laws under challenge and summarise the main grounds of those legal challenges.
On the 22nd of April, 2019, a single judge bench of the Madras High Court directed the State to issue a marriage certificate to a man and transgender woman. 1. This is the first case to recognize the right to marriage of a transgender person. Importantly, the court did not require the transgender woman to have undergone SRS to be recognized as a woman. 2. The case also furthered the legal jurisprudence regarding intersex persons and directed the State government to issue a notification to ban normalizing surgeries for intersex babies, giving it eight weeks to comply with this direction. This blog will focus on the two above-mentioned features of the case.
Facts of the Case
Mr. Arunkumar married Ms. Sreeja in a temple in Tuticorin (Tamil Nadu). Arunkumar was assigned male at birth whereas Sreeja was born with an intersex condition. While she was assigned gender female at birth at school she was registered as male and had a male name. In her Aadhar card, her identity was displayed as transgender. Arguably, her socially perceived gender was that of male and that is why even though her birth certificate records her gender as female, when she adopts a female name and marries a man the issue becomes one of transgender marriage and not marriage between two persons of different sexes. In the case. The marriage was performed according to Hindu rites and customs and certified as validly performed by the administrative officer of the village. However, the temple authorities declined to vouch for the marriage. This fact raises some questions. Whose authorization: the administrative officer’s or the temple authorities, is necessary to claim that a marriage is performed as per Hindu rites and customs. This question is not raised in the case but given that the judgment does not question the validity of the marriage on this count, arguably, a marriage can be said to performed according to Hindu rites and customs even if just the administrative officer (not usually an authority on religious rites) certifies it so in opposition to the temple authorities. Moving ahead from this digression, the couple was required to register their marriage as per Rule 5(1)(a) of the Tamil Nadu Registration of Marriage Rules. When they approached the Joint Registrar for the same, he opposed to register it. The couple met with a similar refusal when they appealed his decision before the Registrar of the District. They challenged the decision of the Registrar in a Writ of Mandamus filed in the Madras High Court.
In the High Court, the counsel for the State of Tamil Nadu defended the Registrars’ refusal on two grounds:
- As per the Tamil Nadu Registration of Marriage Act, 2009, a Registrar could refuse to register a marriage if they were satisfied that the marriage was not performed under the personal law, custom or tradition as the claim may be. In the present case, the State argued that the temple authorities did not certify the marriage, providing valid grounds for refusal. As mentioned before, the judgment did not focus on this contention at all. However, if similar registration Acts exist in other States as well then in the future, one may reasonably expect that this may become a ground of contention in a case. In this situation, the court will have to turn its attention to whether this activity of the temple can be subject to constitutional scrutiny, and if so whether the criteria that temples have reserved for issuing such certificates are constitutional.
- Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for the solemnization of a Hindu marriage. Although the Section does not state that a valid marriage can be entered into only between a man and a woman, the Section has been legally understood to imply this. The Section uses the word “bridegroom” and “bride” only to state the minimum age that these persons must be to enter into marriage but does not state that they must marry one another. However, the word “bride” is not defined in the Act. The counsel for the State argued that a bride is a “woman on her wedding day” [as defined in the Oxford Advanced Learner’s Dictionary of Current English]. As Sreeja was not a woman but a transgender person, she could not be a bride under the Act, and therefore the marriage was not solemnized as per the terms of the Act.
Reasoning of the Court
The reasoning of the court was prefaced by recapping certain propositions of law recognized in the NALSA case:
- Fundamental Right to Gender Identity: Ignoring the first contention, the court focussed on the second one and refused to accept it in the light of the NALSA decision. The NALSA decision had stated that transgender persons have a fundamental right to decide their gender identity as either man, woman or third gender. Incidentally, the court also found support for this legal proposition in Hindu tradition and cited the story of Aravan and Shikhandi and modern neuroscience of Prof. V.S. Ramachandran which validates the argument of internal and external gender mismatch experienced by the transgender population.
- Right to Equality: the court also referenced NALSA to reiterate that the fundamental right to equality was available to “all persons” and not just men and women. Therefore, Article 14 (equality) finds discrimination on the basis of gender identity unconstitutional.
- Dignity and Privacy: the court also found, following NALSA, that the gender identity discrimination offends the fundamental right to dignity and privacy protected under Article 21.
- Fundamental Right to Gender Expression: the court also reiterated NALSA in saying that gender expression and presentation are protected under Article 19(1(a) of the constitution, and the State could not “prohibit, restrict or interfere” with a transgender person’s expression of the same [NALSA, para 72].
Thereafter, the decision of the court was based on two proposition of law, and and one guiding principle of interpretation.
- 1. Proposition of law: The right to marry: Accordingly, the court ruled that the construction of the word “bride” could not be static and had to be interpreted as per the current conditions. Accordingly, given that transgender persons have the fundamental right to a self-identified gender, “bride” under S. 5 of the Hindu Marriage Act, 1955 should be read to mean not just a person assigned female at birth, but also a transgender or intersex person who identifies as female. It found that Article 16 of the Universal Declaration of Human Rights (UDHR) grants men and women the right to marry, and in a recent Supreme Court case [Shafin Jahan 2018], the Supreme Court had held the right to marry as a fundamental right protected under Article 21. The court also found support for this proposition in the NALSA judgment itself which had predicted that civil right like marriage could be made available to the transgender population once their gender identity is given due recognition in law.
- Proposition of law: the freedom of religion: the court found that denying two practicing Hindus (the petitioners) to marry under Hindu law was a violation of their freedom of religion because it prohibited
- Guiding Principle of Interpretation: the court also noted that the constitution is an enabling document and judged on its standards, it “would be absurd” to deny to the transgender population rights already available to the mainstream.
Jurisprudence Regarding Intersex Persons
The court started by defining intersex persons partially correctly when it noted that intersex children are “children who are born with genitalia that belongs to neither category” [para 16]. This is not correct. While some intersex persons may have ambiguous genitalia, some intersex persons may have the external genitalia associated with one sex but they might have internal sexual organs not typically associated with that sex. For example, a person may be assigned gender male at birth because he possess external sexual characteristics of a typical male but they may have a uterus. Alternatively, they might have a chromosomal make up different from the one associated with males (XY) and females (XX). However, importantly, the court did note that the parents and the doctors perform corrective surgeries on such children when they are born found such surgeries in violation of NALSA (which prohibited SRS for gender recognition) and also Article 39 of the Indian constitution which directs the State to give children the opportunities and facilities to develop in a health manner in conditions of freedom and dignity. It also stated that intersex children are entitled to stay with their families and the onus fell on the government to launch programmes to address parental shame upon the birth of an intersex child.