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Public opinion regarding gender identity and sexual orientation is changing. The outdated laws are also getting modified to reflect the changing outlook of Indian society. Indian Legislations like Hindu Marriage Act or Special Marriage Act currently recognize only heterosexual marriages as valid marriages. However, sexual orientation is very different from gender identity. So, what happens when a self-identified woman (transgender) gets married to a biological man?
In this note, we will analyze the right to marriage of all transgenders and if they can legally get married to cisgender individuals (people who identify as the sex they were assigned at their time of birth).
The term "bride" which is socially given to a "woman on her wedding day," is mentioned in Section 5 of the Hindu Marriage Act, 1955.
Section 5 of the Hindu Marriage Act, 1955 states,
"A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage
(ii) at the time of the marriage, neither party(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity
(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits marriage between the two;
(v) the parties are not sapindas (nearest descendent/ forbidden relationship) of each other unless the custom or usage governing each of them permits marriage between the two;"
In the aforementioned provision, the term "parties" is used for "bride" and "bridegroom." This does not indicate that the terms will be limited only to biological males or females. This was also approved by the Hon'ble Justice G.R. Swaminathan in the ruling of Arun Kumar V. Inspector General of Registration.
Indian Legislation does not allow the marriage of same-sex individuals. However, The Courts have already agreed that sexual orientation and gender identity are different from each other. Therefore, a marriage between a self-identified female and a biological male will not come under the category of same-sex marriage. This was settled by the Hon'ble Supreme Court in the judgment of NALSA vs. Union of India. Moreover, all Indian citizens have the fundamental right of equality before the law or equal protection of laws within the territory of India.
Article 14 of the Constitution of India gives the right to equality to "any person" who is present within the territory of India. It will be unfair and very discriminatory to remove transgenders from the definition of "person." The Hon'ble Supreme Court (NALSA vs. Union of India) has already clarified that transgender individuals will also come under the term "person" and therefore have the right to legal protection equivalent to any other citizen of India.
Gender Identity is a very essential part of a person's autonomy. It is personal and private to every individual. Recognization of one's gender identity is a part of human dignity and privacy. Any arbitrary interference with one's privacy or dignity is not only a violation of their fundamental rights but also their basic human rights. The Right to Privacy comes under Article 21 of the Indian Constitution, which is a basic fundamental right given to all the citizens of our country. Article 12 of the Universal Declaration of Human Rights (UDHR), which is already signed by India, also protects the right of every individual from any arbitrary interference with their right to privacy.
Therefore, if any state authorities prohibit a transgender and a cisgender individual to form a consensual relationship, they are violating Article 14 as well as Article 21 of the Indian Constitution. This was again reiterated in the judgment of Arun Kumar V. Inspector General of Registration.
The ruling of Arun Kumar V. Inspector General of Registration was a major step forward for transgender people and also for the Indian Legal System. However, it is important to note that the judgment only recognizes the right to marry for those individuals who identify themselves as one gender (transgender male/female) and marry another gender (male/female). It cannot be cited in the case of same-sex marriage or same-sex relationships.
In a nutshell, the subject of transgender laws is a complex and diverse problem. There is an urgent need to formulate the definition of transgender and the rights that will be bestowed on them. Marriage is a fundamental right and a very important institution which is why it is mandatory to legally recognize the "third sex" in all the provisions.
References
For a more detailed understanding, refer to the case study of "Arun Kumar V. Inspector General of Registration" by clicking the link below.