Legal Vacuum In Morals And Archetypes For Trans Marriages
Author: LawSphereX
Category: Family & Personal Law
Published:
Updated:
LEGAL VACUUM IN MORALS AND ARCHETYPES FOR
TRANS MARRIAGES
Vidisha Pagaria, OP Jindal Global University
ABSTRACT
This research paper critically examines the legal framework governing transgender marriages in India, highlighting the significant gaps in legal recognition and protection for transgender individuals seeking to marry. Despite the NALSA ruling of 2014, which recognized transgender people as a "third gender," they continue to face substantial legal challenges in exercising their right to marry. This paper delves into the restrictive definitions of "bride" and "bridegroom" under various religious personal laws in India, which implicitly exclude transgender persons. The paper also explores the limitations of the Transgender Persons (Protection of Rights) Act of 2019, arguing that the Act's requirements for legal recognition such as mandatory sex reassignment surgery fail to respect transgender individual's right to self-identification and bodily autonomy.
Furthermore, the study critiques the broader societal and legal concept of family, advocating for the recognition of "chosen families" within the legal domain. The paper concludes by proposing amendments to the Special Marriage Act of 1954 or the introduction of a Uniform Civil Code as potential pathways to ensure equitable legal recognition for transgender marriages in India.
INTRODUCTION
A ‘transgender’ as per Section 2(k) of the Transgender People (Protection of Rights) Act of
2019 is “an individual whose gender identity does not correspond to the gender they were
assigned at birth. It encompasses trans-man or trans-woman, intersex, genderqueer, and those with socio-cultural identities such as kinner, hijra, aravani, and jogta”1 Since ages, countless transgender individuals have been relegated to the fringes of society because of the stigma associated with their gender identity and sexual orientation when both of them do not conform to the conventional heterosexual standard. They have been subjected to severe discrimination because of their marginalization, to the point that they have very little say over their own lives and are denied basic rights. The National Legal Services Authority v. Union of India (NALSA) ruling in 2014 came as a respite when it acknowledged transgender people as a 'Third gender,' rejecting the country's binary gender framework.
2 However, although being granted legal recognition as transgender, trans people have not yet been able to fully use their democratic rights when it comes to the right to marry. WHO CAN BE A ‘BRIDE AND BRIDEGROOM’ OR ‘MAN AND WOMAN’?
In India, diverse religious groups, including Hindus (including Jains, Buddhists, and Sikhs), Muslims, Christians, and Parsis, are governed by distinct "personal laws" with regards to marriage. Section 5 of the Hindu Marriage Act stipulates that, “in accordance with Hindu marital law, the parties to the marriage must be the bride and the groom.”3 The essential question is, however, who gets to be included in the categories of "bride" and "bridegroom"? Likewise, both The Indian Christian Marriage Act, 1872 in section 604 and the Parsi Marriage and Divorce Act,
1936 in section 35 employed terminology such as "the man and the woman" or "husband and
wife" when defining the legal age of consent for marriage.
1 The Transgender Persons (Protection Of Rights) Act, 2019
2 National Legal Services Authority v. Union of India, (2014) 5 SCC 438
3 The Hindu Marriage Act, 1955,
4 The Indian Christian Marriage Act, 1872
5 The Parsi Marriage and Divorce Act, 1936
Furthermore, the Muslim Personal Law (Shariat) Application Act of 1937 states, “A marriage in Muslim law is a civil contract that legalises sexual relations and legitimate procreation of a child. ”6 Marriage for a Muslim is meant to be a lifelong commitment to companionship, procreation, and living in harmony with one another and Allah's laws. This objective of child reproduction is undermined by transgender marriage since individuals who have had Sex- Reassignment Surgery (SRS) are unable to procreate. In conjunction, according to the Special Marriage Act, both a man and a female are necessitated for a marriage to be legitimate. According to section 4 (b) (ii) of the SMA act, “neither party, albeit capable of providing a valid consent, has been suffering from mental condition of such a form or to such an extent as to be unfit for marriage and the generation of children.
”7 This law also precludes transsexual weddings, as it stipulates that both partners must be fertile, which is not frequently the case for such unions. In spite of the fact that each and every one of the aforementioned pieces of law on marriage specifies that a marriage can take place purely between a man and a woman, the actual legislation itself does not offer a description of what a man and what a woman are. These religious laws carry the weight of customs and practices, and the assertion that these rules may or may not acknowledge gender identification, relegates us to relying on traditionalist prerogative instead of who a bride or a groom can be. One judgement that dove into this question was Arunkumar v. Inspector General of Registration, which ruled that "the word 'bride' incorporates within definition a transwoman if she views herself as a woman.
Consequently, a marriage between a Hindu male and a Hindu transwoman is a legally recognize Hindu marriage pursuant to Section 5 of the Hindu Marriage Act. ” Nonetheless, the Madras High Court's rationale may be contentious to apply to those who do not identify inside the male or female binary (for example, as the third gender). A contextual reading of male and female would have to be applied instead. As a result, violating Article 14 of India's Constitution by discriminating against people because of their sexual orientation or gender identity is prohibited. 8
6 The Muslim Personal Law (Shariat) Application Act, 1937
7 The Special Marriage Act, 1954
8 India Const. art. 14.
That being said, there were no repercussions of the case on any further legislation, as a change in one's official gender identification is currently controlled by the government under the Transgender Persons (Protection of Rights) Act of 2019. If individuals wish to be legally recognized as "transgender," as defined by the statute, they must register with the government. And, for the government to acknowledge a transgender person as either a man or a woman, the individual must provide documentation of sex reassignment surgery. 9 The Supreme Court's NALSA decision established that “the right to live freely in accordance with one's own selfdetermined gender identity” is a component of the right to life. 10 This act is in clear violation of the aforementioned judgement, which promotes self-identification.
As such, it violates trans people's right to bodily autonomy and the dignity that comes with it. Nevertheless, the NALSA ruling states that “transgender people who are neither male nor female come under the phrase 'person' and therefore entitled to legal protection of laws in all sectors of state activity as enjoyed by any other citizen of this nation. ”11 As a result, a marriage between a transgender bride and groom who have both had their sex assigned across all of their official documents and who may lawfully identify as either female or male should be technically legally acknowledged. IS THE TRANSGENDER PERSON ACT, 2019 REALLY PROTECTING THE ONES IT WAS MADE FOR?
In its suo moto ruling, the Indian Supreme Court stated, “State is duty bound to preserve the Fundamental Rights of its citizens; and an intrinsic feature of Article 21 of the Constitution would be the freedom of choice in marriage.”12 Yet, if we give some weight to legislative purpose and read the statutes in their entirety, we may see that the Transgender Person Act in its original form was not intended to be interpreted as allowing marriage between anybody other than heterosexual couples. The Legislation effectively mandates that a transgender person have sex reassignment surgery in order to be legally recognised. In contrast to the NALSA verdict, which allowed for selfdeclaration of gender identity throughout the gender spectrum, this act forces people into a binary concept of gender by requiring them to undergo sex reassignment surgery that would
9 Supra note 1
10 Supra note 2
11 Ibid.
12 Suo Motu Writ Petition (Criminal) No. 24 Of 2014
culminate in a gender reassignment as either male or female and then award them an identification card validating their status as either a trans-women or trans-man. What the statute does mandate, however, is superfluous with respect to the problems that the community is currently facing. Namely, the concept of "family" in its entirety. In this case, the legislation simply takes an existing legal term at face value, without giving any thought to the context or subtlety of the transgendered individuals. Most trans people avoid living with their birth families because of prejudice and hostility from some of those people and the wider public. In correlation, The Supreme Court of India declared in the case of Deepika Singh v. CAT that “the definition of ‘family’ encompasses not only married couples but also domestic partners, unmarried partners, and homosexual partners.
This expands the definition of a family beyond its narrow confines. ”13 So, it is important to broaden the meaning and scope of ‘family’ to encompass “chosen family”. For the most part, transgender people receive love and acceptance from their chosen families. This is why groups like the Hijra community emerged as a safe haven for transsexual women who were forced to leave their homes and had nowhere else to turn; they answered a pressing social need. Hence, there ought to be a recourse to recognize them as a part of “family”. LACUNAE IN THE LAW In the 1970 case of Corbett v. Corbett, the court ruled that, “for the sake of marriage, sex was to be legally determined by three 'biological' variables present at birth: chromosomal, gonadal, and genital characteristics. Both psychological and medical considerations, including the possibility of surgery, were to be disregarded.
”14 Ergo, if transgender people are not allowed to marry individuals of the opposite sex to their reassignment sex, they would only be able to marry people of the same sex, unwittingly permitting same-sex unions. Since the sole determinant are biological, which can't be altered, and the Indian law does not permit Same Sex Marriage, it follows that no transgender person would be able to get married if the biological criteria established by Corbett is used.
13 Deepika Singh v. CAT, CA 5308/2022
14 Corbett v. Corbett, [1970] 2 All E.R. 33
However, Article 16 of the International Declaration of Human Rights guarantees “the right to marry and build a family for all people of legal marriageable age, regardless of their colour, nationality, or religion.”15 The recognition of an individual's gender identity is at the core of the fundamental right to dignity that all people are entitled to.16 Likewise, the court in Shafin Jahan v Asokan K.M. and Ors. held that, “Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state.”17 Navtej Johar v. Union of India upheld the two-step test necessitating comprehensible differentia and reasonable connection for sexual discrimination to be constitutional. Discrimination based on sexual orientation should be deemed in violation of Articles 14 and
15 due to the lack of a legitimate reason to do so. Besides that, it also acknowledged
constitutional morality over societal or public morality as a means to construe public morality as a limitation on fundamental rights. For this reason, a narrow interpretation of marriage is immoral under the Constitution, which mandates respect for people's right to pursue their distinct personal preferences. 18 THE WAY FORWARD In light of the fact that same-sex marriages are not yet recognised by the law, it is crucial to take sex and gender into account. Although the government is compelled to provide SRS and hormonal therapy to transgender people under the Act, it would be incredibly archaic to require them to go through reassignment surgery in order to get married. The transgender person, even after SRS, would be barred from marrying someone of the opposite sex and forced to wed an individual of the same sex, even if they were not sexually or emotionally inclined that way.
Existing legislation concerning transgenders appear grossly inadequate in giving correct equitable definitions and addressing the challenges encountered by them in a humane manner, whether they be found in personal laws or ones particularly established for them like the Transgender Person Act, 2019. To that purpose, it has become necessary to revise the law as it stands.
15 Universal Declaration of Human Rights, United Nations
16 Anjali Guru Sanjana Jaan vs. The State of Maharashtra and Ors., 2021, BOMHC
17 Shafin Jahan v Asokan K.M. and Ors., 2018 16 SCC 368, AIR 2018 SC 1933
18 Navtej Singh Johar v. Union of India, 2018 10 SCC 1
A possible solution for this can be an amendment in the Special Marriage Act of 1954 for the solemnization of weddings between transgender people. Since, this Act has no religious overtones or origins, and it continues to protect the right to marry one's partner of choice even in jurisdictions where such unions are forbidden by religious canons. Another potential solution to this conundrum is the enactment of the proposed Uniform Civil Code, which would create a universal legal framework for all LGBTQ+ people regarding marriage, divorce, adoption, inheritance, and other family law matters.