Winds of change in marriage law?

Quote: The Madras High Court, emphasising on the spirit of the Constitution that enabled inclusion, explained that trans persons were entitled to the benefit of existing social institutions, including State-recognised marriage. This guaranteed their right to a civil union.

Advice - Rights and Laws, Jun '19

Mihika Poddar explains a recent court verdict on the right to marry for trans persons

Reader queries

Based on a recent Madras High Court judgement, can now marriage between a trans person who identifies as trans woman or just woman and a man be considered legally valid? If yes, does it mean that all marriage and other related laws will be applicable for the trans person concerned? What about marriage between a trans man and a woman, or between a third gender person and a man?

PKD, Kolkata

Dear PKD

In April 2019, a Madras High Court bench held that marriage “between a male and a trans woman” was valid under the Hindu Marriage Act, 1955 and was bound to be registered. This came as a major victory for the queer communities as such marriages were popularly considered to be unlawful.

The case concerned two Hindu individuals – Arunkumar, a male (or cisgender man), and Sreeja, a trans woman, who got married at a temple as per Hindu customs. Both the Joint Registrar No. II – Tuticorin & District and the District Registrar – Tuticorin & District refused to register the marriage. The couple filed a writ petition before the Madras High Court claiming violation of their Fundamental Rights.

The government contended that the Tamil Nadu Registration of Marriages Act, 2009, allowed for refusal of marriage if not performed as per the parties' personal laws, usage or tradition. Here, the Hindu Marriage Act required the 'bride' to have completed 18 years of age. They argued that 'bride' referred to a 'woman on her wedding day'. Since Sreeja was a trans person, she could not be a 'bride'. But the court disagreed with the government, basing its rationale on the right to self-identification, and right to marriage.

First, the Madras High Court reiterated the Supreme Court’s NALSA decision of April 2014, which upheld “transgender persons’ right to decide self-identified gender”, directing states to grant recognition to their gender identity as male, female or third gender. The court said that the guarantee of equality before law and equal protection of the law under Article 14 of the Constitution of India extended to all 'persons'. Therefore, it extended to all trans persons, who were "entitled to legal protection of laws in all spheres of State activity as enjoyed by any other citizen of this country". Discrimination based either on sexual orientation or gender identity was thus in violation of Article 14 of the Constitution.

Further, expression of gender identity was also protected by the right to freedom of expression under Article 19(1)(a), while self-determination of gender identity was guaranteed by the right to personal autonomy, liberty and dignity under Article 21.

Since Sreeja identified as a woman, her right to such self-determination of gender identity being constitutionally protected, could not be questioned by the State. This would mean that recognised by law as a woman, she would be a ‘bride’ even under the traditional definition of the term. Though not expressly articulated in the Madras High Court judgement, the references to equality pointed to the conclusion that trans persons were equally entitled to enjoyment of marriage-related laws, like all other citizens. The verdict signals winds of change in marriage and family laws that have so far been unresponsive to the concerns of queer people and the relationships they enter into.

Second, the Madras High Court argued that even the term 'bride' under the Hindu Marriage Act was not static and needed to be interpreted as per “present day conditions”. This was done by emphasising a constitutionally protected right to marry for trans persons, relying on several precedents. For instance, in the apex court’s 2018 judgement in Shafin Jahan Vs. Asokan K. M. and Others, the right to marry a person of one's choice was held to be a part of Article 21. In the case Justice K. S. Puttaswamy (Retd.) and Another Vs. Union of India and Others (2017), the Supreme Court recognised the right to privacy extending to matters of family life, including “the decision to enter into a relationship”. The Supreme Court’s NALSA verdict on transgender rights particularly recognised how civil rights like the right to marry were contingent upon gender recognition.

The Madras High Court, emphasising on the spirit of the Constitution that enabled inclusion, explained that trans persons were entitled to the benefit of existing social institutions, including State-recognised marriage. This guaranteed their right to a civil union. Further, even the right to a sacramental marriage was protected by the right to religion under Article 25. Given that both the individuals concerned were Hindu, they were entitled to be governed by their personal law, that is, the Hindu Marriage Act. Thus, their constitutional right to marriage, read together with religious freedoms, required that their marriage be registered under the Hindu Marriage Act if they so desired. In this light, the expression 'bride' was read to include a trans woman (and even an intersex person who identified as a woman or as a trans woman). Thus, a blanket right to both sacramental and civil marriage was given constitutional protection, irrespective of one’s gender identity (or differences in sexual development).

Quote: It must also be noted that though the judgement centred around the definition of ‘bride’ under the Hindu Marriage Act, the same rationale would apply to the term ‘bridegroom’ as well, thus covering trans men as well. The judgement was thus novel as it allowed for an expansion of the traditional understanding of marriage between cisgender men and women, creatively interpreting statutory provisions in light of the NALSA judgement.

It must also be noted that though the judgement centred around the definition of ‘bride’ under the Hindu Marriage Act, the same rationale would apply to the term ‘bridegroom’ as well, thus covering trans men as well. The judgement was thus novel as it allowed for an expansion of the traditional understanding of marriage between cisgender men and women, creatively interpreting statutory provisions in light of the NALSA judgement. Though the analysis was limited to registration of marriage, if a marriage were to be validly registered, all resultant rights accruing due to marital status should follow.

This logic may also be extended to the recognition of marriages under other laws. For instance, though the Special Marriage Act, 1954, as well as the Parsi Marriage and Divorce Act, 1936, use the words ‘male’ and ‘female’ for parties to a marriage (instead of ‘bride’ and ‘bridegroom’), the right to self-determination would still allow trans men and trans women identifying within the binary to register their marriages under these Acts. Even a 2018 Law Commission of India Consultation Paper on Reform of Family Law argued that matrimonial rights should be available to all those who inhabited the now broadened (post NALSA verdict) definitions of ‘man’ and ‘woman’.

However, for individuals identifying beyond the male-female binary (say, as third gender), it might be difficult to apply the Madras High Court’s second argument; instead one would have to argue for a contextual interpretation of male and female. A specific amendment to the marriage law might be required for clarity. The judgement pertained to codified Hindu personal law, but similar analysis in the case of Muslim personal law would be difficult given its lack of codification. Notably, transgender marriages have been recognised under Sharia law in Pakistan, though the government is yet to pass official legislation in this regard.

The Madras High Court’s judgement was a positive step towards ensuring civil rights beyond mere gender recognition. It created a gateway for trans persons to access age old laws that were designed for cisgender people, which could act as a precedent for accessing other civil rights. The recognition of a constitutional right to marry also laid open the doors for a similar challenge if marriage between two persons of the same sex or same gender were to be refused registration.