THE TRANSGENDER MARRIAGE ACT- THE SUDDEN EXIGENCY
Updated: Feb 3, 2021
Author: Soumya Sakshi Mishra, II year of B.B.A.,LL.B. from Christ University Bangalore
The right to equality guaranteed under article 14 is often questioned by several activists, scholars, and social workers. Moreover, sometimes the claim for inequality is for petty acts. Amidst these petty claims, we are ignoring some real inequalities present in our country which includes injustice against transgender persons. Although we have several laws for the protection and upliftment of transgender, our lawmakers ignored an important statute that provides for transgender marriages. Henceforth, this paper revolves around the idea of transgender marriage laws and it also suggests ideas to enact statutes related to transgender marriage.
In the recent landmark case of Navtej Singh Johar v Union of India[i], it was stated that India, indirectly showed the green flag to solemnization of homosexual marriages and a lot of development happened in the matter of homosexual rights. However, it is observed that we are neglecting and disregarding the marriage between 2 transgender or a marriage between a man and a transgender or any other scenario related to the transgender marriage.
The constitution of India provides for equality before the law and it is also against discrimination based on sex, religion, and caste. However, we could see clear discrimination based on sex and gender. We have existing statutes of Hindu Marriage, Muslim Marriage, Christian Marriage, and even we have ‘Special Marriage Act’ but there is no statute for Transgender marriage. Moreover, there is not any inclusion of any provision of marriage with a transgender in the existing Marriage Acts.
Conventional belief and modern thought
Previously transgender people were regarded as equal to every other person. In the Vedic age, they were revered as their blessing brought prosperity and blessing of parenthood. If we go through the Vedic text, we will be able to understand that the third gender was regarded as Ardhnareshwar and it was not a matter to be ashamed of. However, when India was colonized by the Britishers, at that time, the third gender community’s reverence came to its nemesis. It was considered by the Britishers that they can impart disease to mankind, henceforth, an act was passed named Criminal Tribes Act[ii]which empowered the British Government to arrest anyone from the third gender community. However, after Independence, the Act was made repealed but then also the third gender community was shunned from their basic rights. Even now, they are facing discrimination by society as well as by the laws of the country.
There is an untold story of the transgender marriages in India, even they fall in love, even they want to spend their entire life with someone, even they possess feelings. However, there is no statute in India which upholds the rules and norms for their marriage. What if they seek a divorce? What if they want the restitution of the conjugal rights? What if there is something wrong in their marriage and they want some judicial help? In that matter, our country neither has a statute to help them nor has any guidelines to support them. Moreover, we do not have any provision for transgender in any Marriage Act of any religion. Hence, the biggest question arises here, is this discrimination constitutionally valid?
Recognition under Hindu and Muslim Marriage Acts
There is an argument put forth by several scholars that, under Hindu personal Law it is believed that the main aim of marriage is to sire children, and in the case of transgender there is no possibility of reproduction. The situation is somewhat similar to Muslim personal laws, henceforth they do not tolerate the idea of a marriage of transgender people. However, the customs and religious belief which violates the fundamental rights of an individual is not to be followed. In this case, it is likely to observe that there is a gross violation of the fundamental right of transgender people. Therefore, this idea should be shed and we should demand lawmakers to make laws for transgender marriage.
Constitution and Judicial Activism
Though there is no statute, yet judiciary gave several judgments in favour of transgender marriage rights, relying on the constitution and several international declarations. For example, the apex court relied on Article 16 of the Human Rights Declaration which focused on the right to marry and gave the verdict of the case Shafin Jahan v Asokan K.M. and Ors[iii]which stated that “the right to marry a person of one’s choice is an integral part of Article 21 of the Constitution”
After the case of K.S Puttaswammy v Union of India[iv] and Navtej Singh Johar v Union of India, it is clear that transgender persons have the right to marry by their choice, and the country is obliged to make laws for their marriage or include some provisions in the existing Marriage Acts.
In the case Arunkumar and Another v. The Inspector General of Registration and Ors[v], the court held the marriage between a man and a transgender valid stating that the definition of the bride in the Hindu Marriage Act included transgender women. This judgment was given by Madurai Bench Madras High Court relying on the decisions of the Supreme Court in NALSA v. Union of India, Justice K. Puttaswamy v Union of India, and Navtej Singh Johar v Union of India. In NALSA v Union of India[vi], it was stated by the court that sex and gender are two different things, sex is biologically determined at the time of birth whereas, gender is self-choice, henceforth the transgender woman has identified herself as a woman, therefore, she fits in the definition of the bride and thus, the marriage was considered valid.
It is easily observed that transgender people are facing stark inequality in society in every aspect of life. If we apply the veil of ignorance theory in this case then, everyone will suggest one thing that there should be an Act that provides and upholds the rules and laws for transgender marriage. We should raise our voices against the injustice happening and try to bring equality in our society.
[i] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
[ii] Criminal Tribes Act, 1871
[iii] Smt Ujjam Bai vs State Of U.P on 10 April, 1962
[iv] AIR 2018 SC 357
[v] W.P. (MD) NO. 4125 OF 2019 AND W.M.P. (MD) NO. 3220 OF 2019
[vi] AIR 2014 SC 1863
1. Soumya Sakshi Mishra, a law student from Christ University.
2. The main area of interest lies in Constitutional Law and Criminal Law.
3. Interested in the upliftment of Women, Transgender, and save them from various atrocities.
4.To open an NGO for Women, Transgender, and other suppressed communities.