The Madras High Court held on 22nd April 2019, that trans women are also to be recognized as brides under the Hindu marriage act i.e. one needn’t be a born or biological female so as to be considered a bride.
The Hindu Marriage Act was enacted by the Indian Parliament in 1955. This act applies to all persons residing within the Indian Territory, as long as they are not followers of Islam, Christianity, Zoroastrianism or Judaism. This act is what is used to legalize the traditional wedding of those belonging to the Hindu faith. Due to the time it was written in, it’s considered to be a conservative act especially considering the limited purview of the act i.e. only with respect to Hinduism or religions such as Buddhism, Jainism, Sikhism that are opined by the government to be sister religions of Hinduism.
Shortly after Section 377 was scrapped and the parliament claimed, regardless of the supreme court’s decision, the parliament would ensure that those belonging to the homosexual community would not receive the right to marry under the law.
This decision by the Madras High Court is welcomed by the LGBT community in hopes that this could be the first step towards legal marriage for homosexuals.
The Ruling
Justice G R Swaminathan, one of the judges on the bench of the Madras High Court for the case stated that the authorities which had refused to recognize the marriage on the grounds that a trans woman can’t be treated as a bride as per Section 5 of the Hindu Marriage Act 1956—were wrong in doing so.
He referred to previous judgments of the Supreme Court in , Puttuswamy (privacy case) and the Section 377 repeal, and even quoted Hindu epics like the Mahabharata, declaring that the ‘person-hood’ of transgender persons has been recognized under the Indian Constitution.
“Gender identity falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self-determination of the second petitioner herein. For too long, the transgender persons have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. It is absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream.”
He went on to say.
The Outcome for Trans Women
This ruling now allows for all trans women to be recognized as brides, under the Hindu Marriage Act. While this is a blessing for all “Hindu Trans Women” there’s still the matter of transfer women belonging to other religions as we don’t know whether they will or won’t be recognized as a bride within the “Muslim Personal law (Shariah) Application Act of 1937”.
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This ruling could also be used as a precedent for ensuring that trans men can be recognized as bride-grooms with a simple petition to the courts.
Further, this ruling can be considered to be a positive step towards marriage equality for all regardless of their sexual orientation or gender.
Trans Women Speak
I spoke to Taksh Sharma a 23-yearold trans woman from Delhi. She’s a model and a Trans-Rights activist in Delhi.
“Personally speaking, it doesn’t change much for me, marriage isn’t even on my mind as of now, I’d rather see anti-discrimination laws and laws that deal with social stigma and prejudice against trans women. While legally we have been accepted as a part of society, society still does not treat us as equals. We have difficulty finding housing, jobs and sometimes even travelling I’m public transport.”
She says
“These are real-life tangible problems that affect the autonomy of trans women everywhere. I would much rather see them be addressed first. It’s great that trans women can get married under this act. Don’t get me wrong. But realistically how many trans women in India are able to get married? How many of them have had to overcome hurdles to even be looked at as members of society.”
She further went onto say.
She says that she doesn’t mean to take anyone’s joy away of course but as far as she’s concerned; marriage is the last thing on her mind and that she strongly believes that there’s a lot more work to be done to fully integrate trans women into the Indian Society.
I also spoke to Chanda Gaur* who is a 26-yearold, wildlife photographer based out of Goa.
“I’m glad that trans women can legally get married. However, the fact remains that the law isn’t necessarily the main roadblock towards trans women getting married’ It’s more about the stigma and discrimination that is faced by trans women on a daily basis. Most families would rather pick a cisgendered woman over a Trans Woman for their sons because the fact is that most Indian families do not recognize trans women as women. I would much rather see anti-discriminatory laws in our country”
She Says.
Combining the law with the statements of these trans women helps us see, that while this ruling from the High Court can be considered forward, and a boon to many trans women, it sets a great precedent for follow up litigation that could be filed to help further the chances of marriage equality in our country.
Our Conclusion
This judgement isn’t sufficient. There’s still a lot more to be done to integrate transgender persons into society and create an environment wherein they can come out of the fringes that they have been forced to live in as wished by Justice G R Swaminathan. Most of those individuals considered to be a minority in our country are awarded some form of reservation or have laws meant solely to protect them against discrimination of any form in any sphere of life. Thus we should also have such reservations and anti-discriminatory laws to protect the rights and interests of those belonging to the transgender community.
*Name Changed to protect the individual’s privacy pursuant under the Right To Privacy Act.