The rights of the LGBTQ community have been a forefront issue of debate and debacle. The various Supreme Court judgments upholding the fundamental rights of the LGBTQ community have been regarded as landmark and exemplar decisions to safeguard the rights of every citizen. In the present case, the Madras High Court has upheld the validity of a marriage between a Hindu Man and a Transwoman under the Hindu Marriage Act. The appeal was presented on the grounds that the marriage registration authorities refused to entertain and register the marriage of the couple on the grounds that a transwoman cannot be treated as a ‘bride’ under the provisions of Section 5 of the Hindu Marriage Act, 1956.

3.The Advocate appearing for the respondents 1 to 3, being the registration authority and the offices of the registrars, stated that the decision to refuse the registration of the marriage was rightly taken in lieu of powers of the Registrar of Marriages to refuse registration under Section 7 of the Tamil Nadu Registration of Marriages Act, 2009. He further submitted that the marriage between the parties was no performed as per the personal laws of the parties and the applicable custom or usage or tradition and that the temple authorities had not issued any certificate indicating the performance of the marriage of the parties. On the issue of the definition of ‘bride’ under the Hindu Marriage Act, it was argued that the term “Bride” can only refer to a “Woman on her wedding day”, which in this case the petitioner was a transgender and not a woman and hence refusal for registration was valid.

The Court rejected the submissions of the Respondents and relied on the submissions and judicial precedents relied upon by the Petitioners in (2014) 5 SCC 438 (National Legal Services Authority vs. Union of India), Justice K.S.Puttaswamy vs. Union of India (2017) 10 SCC 1 (the Privacy Case) and the Constitution Bench decision of Navtej Singh Johar vs. Union of India (2018) 10 SCC 1 (Decriminalization of homosexuality). Referring to the judgment of NLSA, the Bench iterated on the definition of ‘person’ under the Constitution and stated:

“8. 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. 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 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 law and equal protection of law and violates Article 14 of the Constitution of India. (Vide Para Nos.61 and 62 of the NLSA case).

In conclusion, the Bench, whilst referring to various ancient Hindu scriptures, judicial pronouncements and legal commentaries on the issue, concluded that the interpretation of ‘bride’ cannot be restrictive and thus held:

“15. 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.”

With the advent of recognition and enforcement of essential and fundamental rights of the LGBTQ community, the aforesaid decision shall have a very important role to play in creating awareness of the rights of the LGBTQ which have been in existence but unrecognized since time immemorial.

 

Judgment: Arunkumar and Another Versus Inspector General of Registration and Others

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