Arun Kumar & anr Vs The Inspector General of Registration & ors THE MADURAI BENCH OF MADRAS HIGH COURT
WP(MD)No.4125 of 2019 and WMP(MD)No.3220 of 2019
INTRODUCTION
"Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart." -Madras High Court
Did you know that the first non-binary marriage has already been approved by Indian courts?
The fight to recognize same-sex marriage has reached the Supreme Court of India and the petition is pending in the Apex Court. But, in the past, we have seen some open-minded judges pass some liberal orders using the approach of clever interpretation of laws and using loopholes to identify the rights that are yet not recognized in the Indian laws. The present case is one such example of an exemplary approach of a judge who didn't step back to identify the marriage between a transwoman and a man performed under Hindu Law.
FACTS
The petitioner Shri Arunkumar married the second petitioner Ms. Srija as per Hindu rites and customs in a temple. When the parties submitted a memorandum for registration of marriage under Rule 5 (1) (a) of the Tamil Nadu Registration of Marriages Rules in Form I before the respondent, the respondent refused to register the same. Challenging the refusal to register their marriage, the petitioners filed a writ petition.
OBSERVATIONS OF THE COURT
The court observed that a marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same.
As rightly pointed out by the learned counsel appearing for the petitioner, the issue on hand is no longer res integra. In the decision reported in (2014) 5 SCC 438 (National Legal Services Authority vs. Union of India), the Hon'ble Supreme Court upheld the transgender persons' right to decide their self-identified gender irrespective of their biological sex. The central and State governments were directed to grant legal recognition of their gender identity such as male, female or third gender. This path-breaking judgment could be passed after the decision in (2017) 10 SCC 1 (Justice K.S.Puttaswamy vs. Union of India) recognized that 'Right to privacy' is a fundamental right protected under Article 21 of the Constitution. The right to privacy judgment paved the way to recognize the self-perceived gender identity by reading it within the ambit of privacy. The Constitution Bench in (2018) 10 SCC 1 (Navtej Singh Johar vs. Union of India), again reiterated the right to privacy to decriminalize consensual relationships between two adults of the same-sex, thereby reading down Section 377 IPC.
The Hon'ble Supreme Court in NALSA Case noted that the existence of a third category outside the male-female binary has been recognised in the indigenous Hindu tradition.
A person's sex is biologically determined at the time of birth, which is not so in the case of gender. That is why after making an exhaustive reference to the human rights jurisprudence worldwide in this regard, the Hon'ble Supreme Court 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 the equal protection of the laws within the territory of India would apply to transgenders also. Transgender persons who are neither male/female fall within the expression “person” and hence are entitled to legal protection of laws in all spheres of State activity as enjoyed by any other citizen of this country. Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before the law and equal protection of the law and violates Article 14 of the Constitution of India.
Gender identity, therefore, lies at the core of one's personal identity, gender expression and presentation and, therefore, it will have to be protected Under Article 19(1)(a) of the Constitution of India. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community Under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights.
Recognition of one's gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one's sense of being as well as an integral part of a person's identity. Legal recognition of gender identity is, therefore, part of the right to dignity and freedom guaranteed under our Constitution.
"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.”
The second petitioner herein has chosen to express her gender identity as that of a woman. As held by the Hon'ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self-determination of the petitioner herein.
The expression “bride” occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning. As noted in Justice G.P.Singh's Principles of Statutory Interpretation, the court is free to apply the current meaning of a statute to present-day conditions. A statute must be interpreted in the light of the legal system as it exists today.
In (2018) 16 SCC 368 (Shafin Jahan vs. Asokan K.M. and Ors), the right to marry a person of one's choice was held to be integral to Article 21 of the Constitution of India.
In NALSA Case also, the right of the transgender person to marry was recognised. Paragraph No.119 of the said Judgment read as follows :
“....Therefore, gender identification becomes very essential component which is required for enjoying civil rights by this community. It is only with this recognition that many rights attached to the sexual recognition as 'third gender' would be available to this community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver's license, the right to education, employment, health so on".
Both the petitioners herein profess Hindu Religion. Their right to practice Hindu Religion is recognised under Article 25 of the Constitution of India. The Hindu Marriage Act is a personal law of the Hindus. When the right of transgender persons to marry has been upheld by the Hon'ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act.
Seen in the light of the march of law, the expression “bride' occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include within its meaning not only a woman but also a transwoman. It would also include an intersex person/transgender person who identifies herself as a woman. The only consideration is how the person perceives herself.
This Court must at this juncture place on record its gratitude to the intersex activist Gopi Shankar of Madurai. This Court had occasion to come across his work and it has been a humbling and enlightening experience. Beyond the man-woman binary, there are as many as 58 gender variants. Of course, we use the expression “transgender” as an umbrella term. When a child is born it is usually endowed with male genitalia or female genitalia. But there are children who are born with genitalia that belongs to neither category. They are known as intersex children. They must be given their time and space to find their true gender identity.
In fact, the Hon'ble Supreme Court in the NALSA case categorically stated that no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. But, what is happening, in reality, is more in breach of this judgement given by the Hon'ble Supreme Court. Article 39 (f) of the Constitution of India.
There is yet another aspect of the matter. Arunkumar, the first petitioner is a Hindu Kuravan. It is a notified scheduled caste community. The second petitioner belongs to Saiva Vellalar community. The Government of India has introduced a scheme known as Dr.Ambedkar Scheme for Social Integration through InterCaste Marriages to encourage intercaste marriages. As observed by Dr.B.R.Ambedkar in his speech in the Constituent Assembly delivered on 25th November, 1949 castes are antinational. Intercaste marriages alone will ultimately lead to social integration and fulfil the preambular promise of fraternity
The second petitioner appears to have been an intersex person at birth. In the affidavit filed in support of this writ petition, it has been mentioned that she was assigned as a female at birth. But, in the school records, the second petitioner has been described as a male by the name of Manthiramoorthy. In the Aadhar Card, her gender has been mentioned as “T” (Third Gender). A person who is in the Third Category is entitled to remain beyond the duality of male/female or opt to identify oneself as male or female. It is entirely the choice of the individual concerned.
CONCLUSION
Since this Court has held that the fundamental rights of the second petitioner guaranteed under Articles 14, 19(1)(a), 21 and 25 of the Constitution of India have been infringed, the orders impugned in this writ petition stand quashed and the third respondent is directed to register the marriage solemnized between the petitioners on 31.10.2018 at Arulmighu Sankara Rameswara Temple, Tuticorin.
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