The Indian legal system has started to recognise that gender is different from sex and determination of gender is part of the liberty and dignity of any person, making it an inherent part of a person’s right to privacy.
The NALSA Judgement found gender expression to be protected under Article 19(1)(a) and the right of determination of gender to be part of Article 21 of the Constitution. While the legal principles on gender and privacy are changing steadily through court judgments, there is a need for legislative recognition of the right of marriage of members of the LGBTQI community under law.
While there is no move from the legislature on recognising this right, the judiciary has steadily recognised this right under Article 21 of the constitution. The recent judgement of Arun Kumar & Anr v The Inspector General of Registration by the Madras High Court (HC) is one such case where the court recognised the right of a marriage of a transwoman with a man. The judgment stated that they were “stating the obvious” by declaring the validity of such a marriage.
However, on critically looking at the judgment, we shall find that complete recognition of the right of marriage and family of the LGBTQI community cannot be done by the judiciary alone because of the restrictions which are present in the way the word of the law is framed. This judgement has a hidden message which tells us that complete fool-proof recognition of the right of marriage and family of the members of the LGBTQI can happen only after a statutory recognition of this right.
A person’s right to marriage is an integral part of Right to Privacy. Such a principle has been recognised internationally under Article 16(1) of the Universal Declaration of Human Rights (UDHR). The Supreme Court of India has recognised this right under different judgements. The Justice KS Puttaswamy v Union of India case had held marriage and family to be part of the private sphere of a person, and while quoting the US Supreme Court judgement of Obgerfell v Hodges, the nine-judge bench had said that decisions which are made by any person on marriage and family are part of their private sphere as well.
The Shafin Jahan v Asokan MG case further expanded on this legal position and held that the decision made by any person on their choice of spouse was an inherent part of the liberty and privacy of such person and such decisions were held to be integral to the Right to privacy of such person.
In the background of these decisions, the Madras HC in the Arun Kumar case was deciding on the matter of a marriage between a man and a transwoman. The brief facts of the case were that Mr. Arun Kumar and Ms. Srija got married to one another as per Hindu rites and customs, but the registration of their marriage was rejected by the registrar of marriages. The argument of the government, in this case, was that Section 5 of the Hindu Marriage Act, 1955 recognises marriage as one between a “bride and a bridegroom” and Ms. Srija by virtue of being a transgender was not a bride, because a bride can only be a woman. Because of this argument, the HC had to expand the meaning of “bride”.
The HC mentioned various mythological stories from Hindu texts which had not only recognised the existence of transgenders but also recognised their marriage with men. They mention the story about a marriage between Aravan, a man and a transman (Lord Krishna had transformed his body to a woman), the story of Shikhandi (a transwoman) from Mahabharat, the story of Lord Vishnu’s Mohini (a transman) transformation. These stories were important for this judgement because it obtains a religious validity for marriages which are undertaken by transgender persons.
The current case is regarding the interpretation of Section 5 of the Hindu Marriage Act and making a religious nexus with the Act is a common practice undertaken by the judiciary. It was after obtaining this religious validity that the HC had held that denial of registration of this marriage, which was solemnised at Arulmighu Sankara Rameswara Temple, Tuticorin, was an infringement of the right to freedom of religion as envisaged under Article 25 of the Indian Constitution.
The HC in this judgment was clear in understanding the difference between gender and sex and that the right of self-determination of gender is an inherent part of a person’s privacy. It was clear to the extent that transgenders do have a right to marry under the HMA, 1955. The HC, in this case, acted like a Dworkinian judge, i.e. it made the “best interpretation” out of the laws for its application in the facts of the case, however, its interpretation was limited to the scope of the matter at hand and the statutory limitations that were given to it. The HC in its judgement stated that:
“the term bride includes not just woman but also 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.”
The HC only expanded the meaning of bride under section 5 of the HMA by making a distinction between sex and gender. The phrase “who identifies herself as a woman” and “how the person perceives herself” again reinforces marriage as a union between a man and a woman. The interpretation understands that gender is an expression which is identified by a person in their private sphere irrespective of what their sex is, but the HMA recognises marriages between male and female genders. The judgement is silent on whether the HMA recognises marriage between a man and a transman or a marriage between people belonging to the same gender.
While this judgement must be applauded for the distinction it made between sex and gender and its recognition of transgender persons’ identity, it does not complete the rights of marriage and family which the members of the LGBTQI. There is no statutory law in India which clearly recognises this right of marriage/civil union.
The Judiciary will always be limited with either the facts of the case or by the word of the law and the recognition of the rights of the LGBTQI cannot come only from them. There is no such legislation which recognises the right of marriage and family of the LGBTQI, rather the legislature had passed The Transgender Persons (Protection of Rights) Act, 2019 despite the criticism made by the transgender community.
The Surrogacy (Regulation) Act, 2019 was passed by the legislature which has not only faced criticism from feminist groups regarding its provisions for women, but it doesn’t even recognise this right for surrogacy for the LGBTQI members. They are not even allowed to adopt children as per the Hindu Adoption and Maintenance Act, 1956. While there are observations by a court in the KS Puttaswamy judgement regarding the right to family of the members of the LGBTQI, there are no statutory provisions in its effect which recognise this right.
A statutory recognition in its effect is necessary because on non-recognition the state infringes on their constitutionally recognized right to privacy. The Indian Legal System must aim at complete recognition of the right of marriage and family of the LGBTQI community which can only happen through statutory recognition.
Picture Source: https://www.pri.org/stories/2012-11-25/hundreds-march-queer-pride-parade-indias-new-delhi