DATE OF THE CASE: 22nd April, 2019
APPELLANTS: Arun Kumar, Srija
RESPONDENTS: The Inspector General of Registration, the District Registrar of Tuticorin, the Joint Registrar No. II.
BENCH/JUDGES: The Honourable Mr. Justice G. R. Swaminathan
LEGAL PROVISIONS: The Constitution of India, 1949 (Articles 14, 19(1)(a), 21, 25, 39(f), 226), the Hindu Marriage Act, 1955 (Section 5), the Tamil Nadu Registration of Marriages Act, 2009 (Section 7(1)(c)), the Universal Declaration of Human Rights (Article 16), Gender Identity, Gender Expression and Sex Characteristics Act, 2015 (Section 3)
FACTS:
- According to Hindu rites and customs, Mr. Arun Kumar wed Ms. Srija at a temple in Tuticorin. The local administrative officer had affirmed that this marriage was legitimate and that neither party had engaged in bigamy.
- Although the marriage could be performed, the temple authorities chose not to attest to it. The Joint Registrar No. II of Tuticorin refused to register the marriage memorandum that the parties had presented to him. The petitioners appealed the above-mentioned decision he made, to the District Registrar of Tuticorin, who upheld the Joint Registrar’s decision. [1]
- The petitioners then submitted a writ petition to the Madras High Court challenging the denial of their request to have their marriage registered.
ISSUES RAISED:
- Whether the term ‘Bride’, as mentioned in Section 5 of the Hindu Marriage Act, 1955 (HMA)[2] meant only women, or included transgender persons as well, given that Srija was a transwoman.
- Whether Srija’s fundamental rights, namely her right to equality under Article 14, right to live with dignity under Article 21, and right to freedom under Article 19 of the Indian Constitution[3], were violated by the decision of the Inspector General of Registration.
CONTENTION:
Arguments from the Petitioners’ side:
- The petitioner’s lawyer argued that gender identity, therefore, lies at the core of one’s identity, gender expression, and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India[4]. The state cannot prohibit, restrict, or interfere with a transgender’s expression of such personality, which reflects that inherent personality.
- Article 21[5] protects the dignity of human life, one’s autonomy, one’s right to privacy, etc. The right to dignity has been recognized to be an essential part of the right to life and accrues to all persons on account of being humans.
- Both the petitioners herein profess Hindu religion. Their right to practice the Hindu religion is recognized under Article 25 of the Constitution of India[6]. The Hindu Marriage Act [7]is a personal law of the Hindus. Therefore, their fundamental right under Article 25 [8]has also been infringed in this case.
- Article 14 [9]which provides Equality before Law has also been infringed by the authorities by restricting them to marry.[10]
Arguments from the Respondents’ side:
- The learned Government Advocate argued that Section 7 of the Tamil Nadu Registration of Marriages Act, 2009[11] confers power to the Registrar of Marriages to refuse registration. He could do so if he is satisfied that the marriage between the parties was not performed as per the personal laws of the parties, any custom or usage, or tradition.
- As per Section 7 (1) (c) of the Act[12], if the documents tendered before the Registrar of Marriages do not prove the marital status of the parties, he can refuse to register the marriage.
- The authorities of the temple, where the marriage between the parties was said to have been solemnized, had not issued any certificate indicating the performance of the marriage.
- The term ‘Bride’ can only refer to a ‘woman on her wedding day’. In the case at hand, the second petitioner Srija is a transgender and not a woman. Thus the statutory requirement set out in Section 5 of the Hindu Marriage Act, 1955 [13]has not been fulfilled.[14]
RATIONALE:
The Court stated that a marriage solemnized between a male and a transwoman, both professing Hindu religion, was a valid marriage. The Court stated that transgender persons had the right to decide their self-identified gender, as upheld by the Supreme Court in the case of NALSA v. Union of India[15], which has been reiterated in the case of Justice K. Puttaswamy v. Union of India [16]and again in the case of Navtej Singh Johar v. Union of India. [17]
The Court also held that the expression ‘bride’ in the HMA[18] cannot have a static meaning and must be interpreted in light of the legal system as it exists today. The Court then cited Article 16 of the Universal Declaration of Human Rights, which includes the right to marry, as a human right, as well as the case of Shafin Jahan v. Asokan K.M. and Ors.[19], where the right to marry a person of one’s choice was held to be integral to Article 21 of the Constitution of India[20]. The Court also went on to cite U.S. Supreme Court’s decision in Obergefell v. Hodges[21] in which the Court had noted that it would be contradictory to recognize a right to privacy with respect to other matters of family life and not with respect to the decision to enter into the relationship that is the foundation of the family in society. Since the Constitution of India [22]is an enabling document, it invites transgender persons to join the mainstream for they cannot be denied the benefits of social institutions that are already in place in the mainstream.
The Court, therefore, held that refusal to register the marriage of Ms. Srija would amount to a violation of her fundamental rights under Articles 14, 19(1)(a), 21, and 25 of the Constitution of India[23] and quashed the orders of the Joint Registrar No. II and the District Registrar of Tuticorin and directed the Joint Registrar No. II to register the marriage of the Petitioners.
The Court also addressed a third issue on sex reassignment surgery (SRS) or Intersex Genital Mutilation (IGM) of intersex children. The Court pointed out that according to the judgment in S. Amutha v C. Manivanna Bhupathy[24], consent of a parent cannot be considered as the consent of the child, and as held in NALSA[25] no one shall be forced to undergo medical procedures as a requirement for legal recognition of their gender identity. The Court directed the Government of Tamil Nadu to issue a Government Order to ban SRS on intersex infants and children. The Court also noted that since Arun Kumar, the first petitioner was from an SC community, they were entitled to obtain financial incentives under the Dr. Ambedkar Scheme for Social Integration through Inter-Caste Marriages.[26]
DEFECTS OF LAW:
- The Constitution of India – The term ‘sex’ is listed as a forbidden basis for discrimination under Article 15 [27]but is not defined, and therefore, is not specifically limited to the fixed categories of male and female. To decide the cases that gender-diverse litigants bring to court, Indian jurisprudence continues to rely on fixed categories of sex and gender. This silence in the Constitutional framework has thus not necessarily meant a positive recognition of other (non-binary) sex or gender identities.[28]
- Transgender Persons (Protection of Rights) Act, 2019 [29]– Gender identification that is self-perceived is not encouraged by this act. This law’s goal is to outlaw discrimination, and hence it requires the creation of a council for transsexual people. The N.L.S.A [30]verdict’s and this verdict’s principles have not been taken into account. A transgender person must apply to the district magistrate for a “certificate” even though the provision cites the right to “self-perceived” gender identity.[31] This particular flaw gives the government arbitrary control over the right to self-identification. The government official must also be pleased with the “correctness of the certificate” on top of this coercion.
INFERENCE:
I want to draw attention to the idea of gradual rights realization, which this judgment started. Additionally, affirm that despite the majority perspective’s opposition, the LGBTQIA+ community’s human rights are safeguarded. The decision may encourage additional, gradual changes to the law regarding topics like surrogacy, adoption, and other related matters. Most people in the community desire a family and feel the need to adopt children.
Supporting the ideas of equality, liberty, and justice becomes essential as India moves closer to a liberal era. Whether it’s a sacred institution like marriage or an opportunity to engage in sexual intimacy, all citizens should have the chance to do so. It is necessary to alter the Transgender Persons (Protection of Rights) Act[32] in order to appropriately permit gender recognition in law. This is possible through not only “physical vision in the eye but also love in the heart.”[33]
AUTHOR:
Surjani Paul
Chanakya National Law University
[1] Arun Kumar and Anr. v. Inspector General of Registration and Ors., W.P. (MD) NO. 4125 OF 2019 AND W.M.P. (MD) NO. 3220 OF 2019.
[2] Hindu Marriage Act, 1955, § 5, No. 25, Acts of Parliament, 1955 (India).
[3] INDIA CONST. arts. 14, 19, 21.
[4] Id. at 2.
[5] INDIA, supra note 3, at 2.
[6] INDIA CONST. art. 25.
[7] Hindu, supra note 2, at 2.
[8] INDIA, supra note 6, at 2.
[9] INDIA, supra note 3, at 2.
[10] Arun, supra note1, at 1.
[11] Tamil Nadu Registration of Marriages Act, 2009, § 7, No. 21, Acts of Tamil Nadu Legislative Assembly, 2009 (India).
[12] Id. at 2.
[13] Hindu, supra note 2, at 2.
[14] Id. at 2.
[15] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
[16] Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors., MANU/SC/1054/2018.
[17] Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors., MANU/SC/0947/2018.
[18] Hindu, supra note 2, at 2.
[19] Shafin Jahan vs. Asokan K.M. and Ors., MANU/SC/0340/2018
[20] INDIA, supra note 3, at 2.
[21] OBERGEFELL Vs. HODGES, MANU/USSC/0055/2015
[22] INDIA CONST.
[23] INDIA, supra note 3, at 2.
[24] S. Amutha v. C. Manivanna Bhupathy, 2007 SCC OnLine Mad 141.
[25] National, supra note 15, at 3.
[26]Arunkumar & Other vs. The Inspector General of Registration and Others, SOUTH ASIAN TRANSLAW DATABASE, https://translaw.clpr.org.in/case-law/arunkumar-vs-the-inspector-general-of-registration/.
[27] INDIA CONST. art. 15.
[28] Jay Gajbhiye, The Significance of Arun Kumar V. Inspector General of Registration’s Case in the Indian Society, Volume 3 Issue 5 International Journal of Law, Management & Humanities, 10 (2020), https://www.ijlmh.com/wp-content/uploads/The-Significance-of-Arun-kumar-V.-Inspector-General-of-Registrations-Case-in-the-Indian-Society.pdf.
[29] Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India).
[30] National, supra note 15, at 3.
[31] Sonal Rawat, Transwoman as a ‘Bride’: Discussing the Repercussions of the Arun Kumar case, Annual Volume 6 2020 Edition South Asian Law Review Journal, 6 (2020), https://thelawbrigade.com/wp-content/uploads/2020/05/Sonal-SALRJ.pdf.
[32] Transgender, supra note 27, at 4.
[33] Arun, supra note 1, at 1.