This blog is inscribed by Urvika Aggarwal.
The debate on sexuality is a long standing and contentious one. People often shy away from discussing about their sexuality as they feel that it is a conversation for when one is behind doors. For the longest time, we, as a society, have come to associate heterosexuality as being ‘normal’. Individuals who do not conform to this ‘normal’ standard of sexuality are still meted out with terms like ‘too sexual’, ‘abnormal’ or even ‘immoral’. It is in light of such taboos associated with sexuality that even the judicial front of the society is cautious of how they comment upon this ‘private’ sphere. In this sense, needless to say, the case of National Legal Services Authority v. Union of India & Ors. (NALSA), can be considered to be a landmark one.
Keeping this background in mind, the aim of this article is to analyze another such judgement that has not received as much limelight as NALSA– Arunkumar v. Inspector General of Registration & Ors. (Arunkumar). This is a 2019 judgment passed by the Madras High Court. This judgment goes even one step further to broaden the arena of marriage and the recognition of transgenders in this social institution. The analysis will contain the following components:
- Brief facts
- How does this judgment crystalize NALSA
- A contrary perspective
The petitioner, Mr. Arunkumar got married to Ms. Srija, a transgender woman. They got married as per Hindu rituals. After the completion of the rituals, the parties submitted a memorandum for registration of marriage under Rule 5 (1) (a) of the Tamil Nadu Registration of Marriages Rules. The authority refused to register the marriage. The ground taken for refusal was that under section 5 of the Hindu Marriage Act 1955, a marriage can only be solemnized between a man and woman. The respondent relied on the Oxford Advanced Learner’s dictionary to argue that a bride could only mean a ‘woman’ and in the present case, the petitioner (Ms. Srija) is a transgender and not a woman. Thus, the condition under the impugned provision has not been fulfilled. The petitioners moved the Court challenging this refusal.
Thus, the issue before the Court was whether a marriage solemnized between a male and a transwoman would be valid under Section 5 of the Hindu Marriage Act, 1955.
How does this judgement crystallize NALSA?
The judgment takes the debate forward picking from aspects discussed in NALSA. This picking forward does not simply replicate what NALSA had to say about sexual variance and marriage but actually taking the dialogue forward. One of the primary ways in which Arunkumar crystallizes NALSA is through the way it expands the interpretation of Section 5 of the Hindu Marriage Act, 1955. NALSA touches upon the inclusion of transgenders in mainstream social institutions like marriage and opines that transgenders have a constitutional right to marry. In an attempt to crystalize NALSA, Arunkumarattempts to include this in the existing law on marriage for Hindus (since the petitioners got married as per Hindu rituals). In a noteworthy move, the Court opines that the word ‘bride’ in Section 5 cannot have a static meaning but instead, should be construed as being more inclusive. The court holds:
“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 court thus makes it clear that the parties to marriage cannot be looked at through a single lens. The court also moves away from the strict man-woman binary when it comes to marriage. In this sense, the court affirms the right of a transman or transwoman to legally solemnize their marriage under Hindu Marriage Act, 1955. What was envisaged in NALSA has been reiterated in Arunkumar in a more firm manner.
This crystallization can be said to have been done in more ways than one. Another aspect of this is how the Court waived the requirement of Sex Reassignment Surgery (SRS) so as to be eligible to be a ‘bride’ under Section 5. The court argues this on the basis of the ‘idea of choice’ while drawing from NALSA. The court gives more weightage to who the person themselves believe they are rather than who the State thinks they are. Thus, if the person herself feels that she is a woman, then that is the only consideration that would matter to give her the recognition of a ‘bride’. The Court says that:
“The only consideration is how the person perceives herself.”
This paves way for sexual autonomy that enables individuals to get themselves recognized according who they believe or feel they are. This idea of choice as elucidated in NALSA has been applied to the institution of marriage as well by Arunkumar.
A contrary perspective
It cannot be denied that Arunkumar is a progressive judgment in as much as it interprets Section 5. However, this particular case can also be viewed from an alternate lens. This lens is the following.
While analyzing the case, it needs to be kept in mind that the marriage in question is that of a man and a transwoman. Even though Ms. Srija is a transwoman, she is still a woman. Thus, the judgment unintentionally reinforces the idea of heterosexuality and how same-sex marriage is still a far-fetched dream. It is only this man-woman relationship that enables the Court to come to the conclusion that it did. It would be interesting to note what the outcome of the case would have been had the parties been a man and a transman or a woman and transwoman. However, to be fair, the High Court would not have been able to rule in favor of the petitioners since 377 judgment explicitly states that they have not legalized same sex marriages.
Keeping this alternate perspective in mind, it becomes important for us to reassess how far we have come as a society. It makes one question that even though we have come a long way, is heteronormativity still the ‘normal’ when it comes to social institutions like marriage? In this context, the Arunkumar case gives one a lot to think about.
Having said that, the Arunkumar case, by recognizing transgenders in the existing Hindu marriage laws has paved way for doing the same in other social institutions as well. It has also set a firm precedent to encourage Courts to interpret personal laws in a more inclusive manner.