The Madras High Court on Monday ruled that the marriage between a cisgender man and a transgender woman is valid, adding that the term “bride,” in Section 5 of India’s Hindu Marriage Act, also includes transgender women.
“A marriage solemnized between a male and a trans woman, 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,” observed Justice GR Swaminathan. “By holding so, this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart.”
It was Arunkumar and Srija who moved the court as the state authorities had refused to register their marriage due to the fact that Srija is a transgender woman. But Justice Swaminathan, in view of the Supreme Court’s 2014 NALSA judgment of the self-identification rights of transgenders, refuted the stance of the government authorities.
“I am unable to agree with the stand of the learned Government Advocate. As rightly pointed out by the learned counsel appearing for the writ 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. The central and State governments were directed to grant legal recognition of their gender identity such as male, female or third gender,” he said.
“When the right of the 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. One can have a civil marriage. One can also have a sacramental marriage,” he said.
He also added that sex and gender are not one and the same.
“A person’s sex is biologically determined at the time of birth. Not so in the case of gender…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,” he said.
“Transgender persons who are neither male/female fall within the expression ‘person’ and hence entitled to legal protection of laws in all spheres of State activity as enjoyed by any other citizen of this country,” Justice Swaminathan added. “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 of India. Article 19(1)(a) and Article 21 were expansively interpreted so as to encompass one’s gender identity also.”
H/T: Bar And Bench