The judgement states that a marriage that is solemnized between a transwoman and a man, both being Hindu, is a valid marriage under Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same.
The facts of the case are Arunkumar and Sreeja got married in a temple as per Hindu rites and customs. The village administrative officer certified that the marriage was performed and the temple authorities while permitting the performance of the same, declined to vouch for it. When the petitioners, Arunkumar and Sreeja, approached the Joint Registrar, i.e., the third respondent, he refused to do the same. Questioning the said decision taken by the third respondent, the petitioners filed an appeal before the second respondent, i.e., the District Registrar. The second respondent confirmed the decision of the third respondent. Hence, the petitioners filed this writ petition.
Whether a transwoman comes within the purview of the term ‘bride’ as mentioned under Section 5 of the Hindu Marriage Act, 1955?
Arguments by the State
The state argued that under Section 7 of the Tamil Nadu Registration of Marriages Act, 2009, the Registrar was empowered to refuse registration of marriage if he believes the marriage was not in accordance with the personal laws of the parties. In this case, the temple authorities have not issued any certificate indicating the performance of the said marriage.
The second argument raised was that under Section 5 of the Hindu Marriage Act, the reference is made to a ‘bridegroom’ and a ‘bride’. The state argued that the ‘bride’ cannot include anyone who is not a woman. Hence, it would not include a transgendered person, and so the requirement under Section 5 has not been fulfilled.
Observation of the Court
The court disagreed with the arguments presented by the state. It stated that following the National Legal Services Authority v. Union of India 2017 judgement, a transgender person has the right to a self-identified gender, which must be recognized by the central and state governments. This third category outside the binary male-female has also been recognized in the Hindu tradition, as noted by the Supreme Court in the N.L.S.A judgement. The court also cited several instances of the existence and recognition of the transgendered community in Hindu mythology.
The court stated the second petitioner, Sreeja, chooses to express her gender identity as that of a woman. This cannot be questioned by the State authorities. Further, the statute provision using the word ‘bride’ is to be interpreted with the present times and not have a restrictive understanding. As stated by the court, “seen in the light of the march of law, the expression “bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include within its meaning not only a woman but also a 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 court directed the third respondent to register the marriage solemnized between the petitioners under Section 5 of the Hindu Marriage Act, 1955.