THIRD GENDER MARRIAGE RIGHTS IN INDIA: DR. MITHILESH VISHWAKARMA & KRATIKA ARORA

THIRD GENDER MARRIAGE RIGHTS IN INDIA

Author: Prof. Dr. Mithilesh Vishwakarma, SSLG, Jaipur National University

Co-Author: Kratika Arora, Jaipur National University

ISSN: 2581-8465

ABSTRACT

In today’s time, disputes arise related to parent-ship, succession, guardianship, adoption and one of the most essential criteria to decide on the following issues is Marriage. Marriage is a relationship carried out by two individuals who consent to come together in order to be recognized as one entity. Therefore it can be said that the right of marriage is an essential right. But what would it be like to exclude an entire group from this right? The Author in this research article talks about the Right of Marriage given to the Third Gender in India. The Author extensively introduces the topic and with the support of the case, laws establish that the Supreme Court too has classified the transgender community and has ruled a judgment providing the legitimate status to them. Under the Hindu Marriage Act no recognition is given to the third gender and a similar scenario is observed under the Mohammedan Law. In addition to it, the author submits that the Special Marriage Act is silent on the Marriage Rights of the Third Gender. As a matter of fact, sex is something which is acquired from the time of birth and no individual has control over it, yet for years the community of the third gender has lived with inequality in-laws. It was late in the year 2019 that the Right of Marriage for a transgender was recognized thereby, taking a huge step forward both legally and socially. Further, the Author explains Butler’s Theory of inclusion, following which the status related to this issue with respect to different countries of the world has been discussed. The Author concludes the research article by stating that undoubtedly there has been a discrimination in treating the third gender, and finally after years the judiciary has decided correctly on this issue and so as a form of next step, proper laws need to be implemented in order to recognize and safeguard the rights of this part of the society.

INTRODUCTION

The initial stage of the concept of third sex can be followed from Hindu Mythology which has numerous instances of gods changing gender, showing as an Avatar of the opposite sex and so forth. Mahabharata and Ramayana were the treasure boxes for references to transgender individuals. Shikhandi from Mahabharata is likely the most powerful transgender figure found in Hindu mythology.

Traditional differentiation of human gender into male and female is only founded on the biological structure of their genitalia. In any case, as a general rule, there are individuals who don’t fit into this custom and oppose the biological binary. These are the “transgender” individuals. The lexicon meaning of the prefix “trans” signifies “beyond.[1]” However, transgender doesn’t just imply a gender that crosses the fringe. Frequently, this term isn’t appropriately comprehended by the overall public. It is an expansive term to delineate all people who live a significant segment of their lives showing an intrinsic feeling of gender which goes amiss from suppositions of their birth sex. “Gender”, as per the World Health Organization, alludes to “the socially built traits of women and men, – for example, such as norms, and roles and relationships of and between groups of women and men.” Therefore, a transgender is an individual who is beyond the socially and culturally characterized contrast among men and women.

The desire for a rigid definition set the stage for the NALSA judgment which characterized the term in the following words, a “transgender is commonly portrayed as an umbrella term for people whose gender identity, gender expression or conduct doesn’t fit in with their biological sex.” Thus, it tends to be said that the expression “transgender” isn’t just restricted to people whose private parts are intermixed however it is a blanket term used to allude to people with characters that don’t coexist with the strict double classifications of man and women and whose gender identity and expression differ from the regular standards anticipated from their birth sex.

In NALSA v. Union of India,[2] the Supreme Court arrived at a classification of the transgender community of India. The Court in the judgment segregated the transgender community into two classifications. Initially, the individuals who psychologically recognize themselves as having a place with the gender on the opposite edge of the range versus their assigned sex and want to get their sex reassigned. And second, the individuals who are seen distinctively as “third genders” and are perceived particularly as a different class or classification in the subcontinent viz. Hijras, Aravanis, Jogtas, Kothis, and Shiv-Shaktis. The Court allowed the legitimate status of “third gender/other” just to the latter classification.

Through the span of time, with the developing consciousness about human rights, there has been a noteworthy progression towards guaranteeing the dignity of a person. One such progression is the acknowledgment or expression of their gender identity. It has been perceived as a fundamental right under the right to life; in any case, noteworthy issues relating to their human rights still remain uncertain. One such issue is that of personal laws that administer their lives and relationships. Marriage and the right to have a family have been perceived as a principal human right. However, its acknowledgment in both the Universal Declaration of Human Rights (commonly called, UDHR)[3] and Indian personal laws has stayed limited to a man and woman.

LEGALITY OF MARRIAGE

Marriage is accepted to be one of the most basic constituents of an individual’s identity, both in socio-economic and in a politico-lawful sense. The institution of marriage, which is a codified and legitimately recognizable relationship between two individuals, has immense public significance, as it gathers a lot of balance in regard of the rights and obligations, particularly those of property, succession, inheritance, and such related rights, which inevitably originate from the solemnization of a marriage. Today, marriage isn’t just a perceived civil right that has a place with each and every member or resident of the state, yet in addition, a concept that has both national and international acknowledgment.

For the context of establishing a valid marriage, a key factor is to decide the two personalities laced in the marriage. However, one fundamental issue that people as well as interpreting authorities to face while deciding the legitimacy of a marriage is when pivotal terms setting up the ability and capacity of people to marry come up short on any concrete definition. In defining a marriage similar to that which is performed uniquely between a man and a woman, the courts could be said to have utilized the previously mentioned rule of interpretation, to be specific, supply of words in the occasion they have been incidentally excluded, in spite of the fact that it could be contended that the legislative purpose still stays equivocal considering the absence of any classified meaning of marriage.

It is the fundamental right of a person to marry and therefore, it would be an issue of grave prejudice if a whole group or class of society were precluded from the right to marry essentially on the grounds that they didn’t fit the definitions of male and female, and any corollaries. The examination relates to the individuals who have their gender legitimately perceived as third sex/other. Transgender who have kept up their lawful status equivalent to their assigned sex can marry somebody from the opposite sex and get the marriage approved under any of the personal laws. Interestingly, the identities that were examined, that go under the umbrella of the third gender, don’t all intend on marriage. Rather, a few identities like Jogas/Jogti Hijras, Shiva-Shaktis and so on are married to their Gods under long-standing superstitions. Along these lines, it is with regards to Hijras that this analysis may occur, since they have attempted to get their marriage perceived in contemporary times.

The position of transgenders is analyzed with respect to laws relating to marriage and adoption under Hindu Law, Mohammedan Law (since the majority belongs to these two denominations) and secular law. The secular law constitutes all the personal laws that can be applied to the parties if they choose to opt-out of their religious laws – viz., Special Marriages Act, 1954 for marriage.

Applicability of Hindu Marriage Act: According to Section 5 of this Act, just a marriage of a bride and a bridegroom is legitimate and perceived[4]. The expressions bride and a bridegroom are gendered terms. It fundamentally means women and men on their big day. In any case, the fundamental conditions as expected of a legitimate Hindu marriage under Section 5 of the Act have in no way, confined the meaning similar to that which is made uniquely between a man and a woman. In this way, it gives no acknowledgment of marriage with the third gender. Section 2(1)(a) of the Act rather characterizes marriage as being appropriate “to any individual who is a Hindu by religion in any of its forms or developments.”

Validity under Mohammedan Law: The fundamentals required to be satisfied under Mohammedan Law for a civil contract of marriage simply require parties to be of opposite sexes, and not a man and woman[5]. Henceforth, insofar as the party having a place with the third gender marries somebody from the opposite sex, the marriage is substantial. In this manner, two parties who have a place with the third gender, however, have distinctive assigned sexes that could marry under Mohammedan Law. Likewise, a third gender individual could marry a cis-gender individual insofar as they are heterosexual couples. This has been gotten explicitly from the literary translation of Mohamm edan Law in India, as no announced fact- circumstance delineating clashes in such an elucidation exist up until now[6].

Registration under the Special Marriage Act: Like the Hindu Marriage Act, Section 4 of this Act requires a ‘male’ and a ‘female’ among different conditions to register a marriage[7]. Accordingly, there is no degree for enrollment of marriage for “third gender” under the Special Marriage Act.

JUDICIAL INTERPRETATIONS

In the context of judicial rulings, Corbett v. Corbett[8] was the first case to talk about marriage including sex change. For this situation, the Court held that despite the sex change, the respondent was still a male and marriage between males was void. Further, the guideline utilized in the past case was applied on account of R v. Tan[9], where, it was held that post-operation of change of sex, a male still stays a man by law. In India, it is seen after further thought that neither the Hindu Marriage Act nor the Special Marriage Act care to include transgender individuals in their umbrella.

Eunuchs are not protected under the National Commission for Woman since they don’t form a piece of the fairer sex. Section 2(c) of the National Commission for minorities which characterizes minority communities like Muslims, Christians, Sikhs, and Buddhists doesn’t cover transgender people either. In the worldwide legal order, there is silence on the status of the transgender in specific records. The preamble of UDHR, the original archive on Human Rights, peruses “whereas the people of United Nations have in the charter reaffirmed their faith in fundamental human rights” in the dignity and worth of human individual and in the equal rights of man and woman and have resolved to introduction social advancement and better standards of life in greater freedom. The Charter of the United Nations additionally has given no spot to this gender.[10] Transgender individuals face unique lawful issues with respect to marriage. While marriage is lawful for same-sex couples across the nation, it is a choice and a reality for many, who are transgender. This article outlines the lawful issues encompassing marriage for transgender individuals and recommends a few different ways that transgender individuals can ensure their marital relationships.

The fundamental right of transgender people to marry people of their choice was as of late attested by the Madras High Court in Arunkumar and Another. V. The Inspector-General of Registration and Ors[11]. The High Court upheld a Hindu marriage among Arunkumar and Sreeja (a transwoman) which the Registrar of Marriages, Tuticorin had previously did not enlist. The ground for refusal was that a transwoman would not qualify as a ‘bride’ under Section 5 of the Hindu Marriage Act, 1955 (HMA). The Court looked past the realities of the case to address issues of self-assurance, individual independence and freedom of self-expression, coming full circle in the acknowledgment of transgender people’s entitlement to marriage. In the beginning, the Court obviously expressed that a marriage solemnized between a Hindu male and a Hindu transwoman would be considered a valid marriage as far as Section 5 of the HMA. The Court depended on the decisions of the Supreme Court in NALSA v. Union of India[12], Justice K. Puttaswamy v Union of India[13] and Navtej Singh Johar v Union of India[14] to reiterate that transgender people reserve the right to self-identify their gender. It held that sex and gender are different from each other, where an individual’s sex is biologically decided at the hour of birth, which isn’t the situation with gender.

The Court tended to the issue of marriage. It held that the term ‘bride’ in Section 5 of the HMA can’t have a static or changeless meaning and that framework must be interpreted in the light of the legal system as it exists today. The Court depended on Article 16 of the Universal Declaration of Human Rights on the right to marry and on the Supreme Court’s decision in Shafin Jahan v Asokan K.M. & Ors.[15], where one’s right to marry an individual was held to be vital to Article 21 of the Constitution. The Supreme Court of the United States in Obergefell v. Hodges[16] ensured same-sex couples the fundamental right to marry. The Supreme Court of India alluded to the said judgment in Justice K. Puttaswamy v Union of India[17], to hold that the right to privacy applies to “the decision to enter the relationship that is the foundation of the family in our society”.

Taking note of the equivalent, the Madras High Court saw that since the Constitution is an empowering document that welcomes transgender people to join the standard, it is ludicrous to prevent them from the advantages of social institutions as of now set up in the mainstream. In spite of the fact that this judgment is a significant step forward to both lawfully and socially for transgender people, it is important to recall that it just maintains the right to marry for those people who self-identify within the gender binary, and who are as needs be considered to be in heterosexual relationships. The judgment doesn’t use any and all means, legitimize same-sex marriage and LGBTQIA+ people in same-sex relationships have still not been agreed a fundamental right to marry under Article 21 of the Constitution of India.

BUTLER’S THEORY OF INCLUSIVE INTERPRETATION OF MARRIAGE

In spite of the fact that the legitimate meaning of “marriage”, as has been set down through judicial interpretation, is a lawful association of a man and woman as a couple or as husband and wife[18], and yet again these terms have not been characterized under any law[19]. When confronting the test of deciding the legitimacy of marriage dependent on the sex or gender of the parties focused on the marriage, the court must think about the legal sex of every single person. With regards to deciding the legal sex of an individual, various conditions in the legal setting call for various methods for managing the question, such as ways not really required to intersect. It is the fundamental right of a person to marry and, accordingly, it would be an issue of grave bias if a whole party or class of society were precluded from the right to marry basically in light of the fact that they didn’t fit the meanings of “male” and “female,” and any corollaries.

As per Butler’s theory, each individual is fundamentally playing out a “gender” role of their own construction or decision, in view of social desires, and especially regarding the particular relationship that the individual in question shares with someone else, particularly a relationship in an evidently sexual setting. Presently, in light of the factious situation of this theory, it might be put forward for presumption that, in a marriage existing between two partners, in any event, one of the partners, who is going into a marital relationship with the other, embraces a personality and an identity which this partner knows as being particular from their natural or biological identity, implying that, any of the two partners in a marriage may decide to attempt either a feminine or a masculine gender role as opposed to the next partner.

 IMPLICATION OF NON-RECOGNITION OF THIRD GENDER MARRIAGE RIGHTS

Non-acknowledgment of third-sex marriage rights can have complex ramifications. In a hijra Gharana, the guru-chela relationship is of explicit accentuation as there is a requirement for financial reliance alongside a show of social control. Along these lines, kinship streams in the closed Hijra community by methods of affiliations and familial ties among gurus and chelas. In any case, this family relationship streams with a cost which the chelas need to pay by being subservient and tolerant to the impulses and orders of their gurus, in order to meet the fundamental necessities of life which may only add up to a square meal and a place to live in. Hijras can’t carry on with a real existence exclusively as they wish in case they may bear the hopelessness of being excluded and boycotted from their own locale.

POSITION IN OTHER COUNTRIES

The author would like to specify the situation of transgender rights in different nations like Nepal, Pakistan, Bangladesh, and so forth. Nepal was the primary nation to set up a third gender category (“other”) on citizenship reports, following the Supreme Court’s decision in the nation’s milestone decision on account of Sunil Babu Pant and Others v. Government of Nepal[20], which ordered the appropriate government to scrap all the biased laws and perceived the principal or the fundamental rights of transgender people.

The Supreme Court of Pakistan perceived the rights of eunuchs on account of Dr. Mohammad Aslam Khaki and Anr. v. Senior Superintendent of Police (Operation) Rawalpindi and Ors.[21] The acknowledgment came as an eventual outcome of the attack and assault of eight hijra wedding artists, by the local police. This upsetting occasion drove perceives hijras as a third gender. This judgment perceived the rights of eunuchs as residents of the nation, subject to the constitution of the Islamic Republic of Pakistan, 1993 and further went about as an impetus to different initiatives taken to secure their legitimate rights. France turned into the second nation in Europe to perceive the identity of the third gender by moving ceaselessly from the unbending biological determinism of man and woman.

CONCLUSION

It is unmistakably obvious from the above observations that transgender people with various sexual orientations face bigotry, discrimination, and rejection in the general public. This seclusion changes from private reasons to the most widely recognized social incomprehension. While the judiciary has made a critical move to expel the shame attached to the third gender, the ball is in our court to perceive the genuine ramifications of this judgment and prioritize its enforcement.

Indian laws identifying with marriage, inheritance, adoption and other welfare enactments just perceive the worldview of binary genders of males and females which depends on an individual’s sex allocated during childbirth. However, this is an imperfect methodology particularly in the contemporary situation where third gender rights have been perceived all-inclusive and locally. The doctrine of incorporation as referenced in the Constitution of India remains at the base of India’s worldwide commitments mandates legislators to enact laws for executing those perceived global standards inasmuch as they don’t negate domestic provisions.  The Yogyakarta Principles address an expansive scope of human rights standards and their application to issues of sexual orientation and gender identity[22]. These standards even typify the obligation on states to incorporate interpretations and amendments to enactment in order to guarantee equality and non-discrimination based on gender identity or sexual orientation.


[1] National Legal Service Authorities v. Union of India, (2014) 5 SCC 438 ¶107 [hereinafter NALSA v. UOI].

[2] Id.

[3] Ms. Juliet Joslin et al. v New Zealand, Communication No. 902/1999, U.N. Doc. A/57/40 at 214 (2002).

[4] The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India) §5.

[5] M. Mulla, Principles of Mohammedan Law 250 (21st ed. 1990).

[6] A.A Fayzee, Outlines of Mohammedan Law 118 (5th ed. 2009).

[7] The Special Marriage Act, 1954, No.43, Acts of Parliament, 1954 (India), §4.

[8] Corbett v. Corbett, (1970) All ER 33.

[9] R v. Tan & Greaves, (1983) 2 All ER 12.

[10] Indrani Sen Gupta, Human Rights and Sexual Minorities: Transgender Human Rights (Gyan Publishing House, 2005).

[11] Arunkumar and Another. v The Inspector General of Registration and Ors. (WP (MD) No. 4125 of 2019 and WMP (MD) No. 3220 of 2019). 

[12] Supra note 1.

[13] Justice K. Puttaswamy v Union of India,  WRIT PETITION (CIVIL) NO. 494 OF 2012.
[14] Navtej Singh Johar v Union of India, WRIT PETITION (CRIMINAL) NO. 76 OF 2016.

[15] Shafin Jahan v Asokan K.M. and Ors. CRIMINAL APPEAL NO. 366 OF 2018.

[16] Obergefell v. Hodges 135 S. Ct. 2584 (2015).

[17] Supra note 13.

[18] Reema Aggarwal v. Anupam and Ors., (2004) 3 SCC 199.

[19] Jackuline Mary v. The Superintendent Of Police, W.P. No. 587 of 2014.

[20] Sunil Babu Pant and Others v. Government of Nepal, Writ No. 917 of the year 2064 BS (2007 AD), (Supreme Court of Nepal, 21/12/2007).

[21] Dr. Mohammad Aslam Khaki v. Senior Superintendent Police, Constitution Petition No.43 of 2009 (Pakistan Supreme Court, 22/03/2011).

[22] S. Sheeran & Sir N. Rodley, Routledge Handbook of International Human Rights Law(2013).

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