Can transgender marry under Hindu Marriage Act, 1955?
Author: Abhishek Sharma
The answer to the above-raised question is settled under Hindu Law. Let’s understand the chronology of cases that gave birth to this widely accepted progressive finding by describing the concept of gender and sex.
In the case of ARUN KUMAR, SREEJA Vs. THE INSPECTOR GENERAL OF REGISTRATION, 2019 Mad HC- the main issue in the case was that one of the petitioners was a transgender person and both the petitioner were professing the Hindu religion. They solemnized their marriage as per Section 5 read with Section 7 of the Hindu Marriage Act, 1995 (hereinafter HMA). But the Registrar of the marriage refuses to register their marriage alleged that Section 5(iii) of HMA prescribes the age of bridegroom and bride, and does not mention the “transgender” in it. To support this dictionary meaning of the word bride was presented which ordinarily means ‘women on her wedding day’. However, in this case, the second petitioner is a transgender and not a woman. Therefore, the main issue is can a transgender person get married according to the provisions of HMA.
The court refers to the judgment of Hon’ble Supreme Court i.e. NATIONAL LEGAL SERVICE AUTHORITY Vs. UNION OF INDIA, 2014 SC in which it was upheld that the transgender person has the right to decide their self-identified gender. This judgment was even considered in the case of JUSTICE K.S. PUTTASWAMY (RETD) VS. UNION OF INDIA AND ORS., 2017 SC and in the case of NAVTEJ SINGH JOHAR VS UNION OF INDIA, 2019 SC.
The Hon’ble Supreme Court noted that there is a difference between sex and gender. The sex of a person is biologically determined at the time of birth. Whereas it is not so in the case of gender; the gender identity lies at the core of one’s personal identity, gender expression and presentation. Therefore, the transgender person who is neither male nor female fall within the expression “person” mentioned under Article 14 of the constitution and hence is entitled to legal protection of the law in all the spheres of state activities as enjoyed by any other citizen of India. Discrimination on the ground of sexual orientation or gender identity is violative of Articles 14, 19 and 21 of the Constitution of India.
It was also held that legal recognition of gender identity is the part of the fundamental right of dignity under article 21 of the Indian Constitution.
The court in this case has held that the HMA uses the expression Bride under sub-section (iii) of Section 5 which can be interpreted to include a transgender person who identifies herself as a woman. The only consideration is how the person perceives herself as now if they are kept out of the purview of HMA, even though they are Hindus as per section 2 of the Act then their fundamental right under Article 25 is also being violated.
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