Case Analysis: Arunkumar & Other v the Inspector General of Registration & Others

KEY FACTS:

Arun Kumar got married to Sreeja, a transwoman, on 31 October 2018 at a worship place in Tuticorin, according to Hindu ceremonies and customs. At the point when they presented a memorandum for the enlistment of marriage with the Joint Registrar of Tuticorin, the Registrar wouldn’t enrol the equivalent. The petitioners challenged this refusal before the District Registrar of Tuticorin vide procedures dated 16 November 2018, who thus affirmed the Joint Registrar’s decision on 28 December 2018. This decision was brought before the Madras High Court.

ISSUE:

1. Whether the term ‘bride’, as referenced in Section 5 of the Hindu Marriage Act (HMA) implied just women, or included transsexual people also, given that Sreeja was a transwoman.
2. Whether the act of refusal to enlist marriage of person based on sexual orientation or sex of the individual encroaches his/her basic rights ensured under Article 14, 19(1)(a), 21 and 25 of constitution of India?

PROCEDURAL HISTORY:

1. Petitioners presented a memorandum for the enlistment of marriage to the third respondent according to Rule 5(1)(a) of the Tamil Nadu Registration of Marriage Rules. The third respondent did not enlist it.
2. Questioning the decision of the third respondent, the petitioners documented an appeal before the subsequent respondent, by which the second respondent vide procedures in Na. Ka. No. 5876/E2/2018 dated 28th of December, 2018 affirmed the decision of third respondent.
3. In order to challenge the decisions of second and third respondent, petitioners have filed the current writ petition before the Madurai Bench of Madras High CourtARGUMENTS: –

1. Murugan, Government Advocate for the State of Tamil Nadu defended the Registrars’ refusal on two grounds:
2. According to the Tamil Nadu Registration of Marriage Act, 2009, a Registrar could decline to enlist a marriage if they were fulfilled that the marriage was not performed under the individual or personal law, custom, or convention as the case might be. In the current case, the State contended that the Temple authorities didn’t affirm the marriage, giving legitimate grounds for refusal. As mentioned previously, the judgment did not focus on this dispute by any means. In any case, if comparable enrolment Acts exist in different States also, at that point, one may sensibly expect that this may turn into a ground of conflict for a situation. In this circumstance, the court should direct its concentration toward whether this action of the temple can be subject to constitutional scrutiny, and if so whether the criteria that the temple has held for giving such certificates are protected under the constitution.
3. Section 5 of the Hindu Marriage Act, 1955 prescribes the conditions for the solemnization of a Hindu marriage. In spite of the fact that the Section doesn’t express that a substantial marriage can be gone into just between a man and a woman, the Section has been legitimately perceived to infer this. The Section uses “bridegroom” and “bride” just to express the minimum age that these people must be to go into marriage however don’t express that they should wed each other. Notwithstanding, “bride” is not defined in the Act. The counsel for the State contended that a bride is a “woman on her wedding day” [as characterized in the Oxford Advanced Learner’s Dictionary of Current English]. As Sreeja was not a lady but rather a transsexual (Transwoman), she could not be a bride under the Act, and hence the marriage was not solemnized according to the provisions of the Act.

CASES REFERRED:

The reasoning of the court was prefaced by recapping certain propositions of law recognized in some previous cases: –

• National Legal Service Authority vs. Union of India ((2014) 5 SCC 438) : The court referred this case (NALSA) in which the Supreme Court has seen that transgender people have been mulling in the edges. As an empowering archive, the Constitution is welcoming them to join the mainstream. Also, henceforth it will be absurd to deny transsexuals the advantage of social foundations as already in the mainstream. The Court additionally expressed that transsexual people had the right to choose their self-distinguished sexual orientation, as maintained by the Supreme Court in NALSA v Union of India.
• Right to Equality: the court likewise referred to NALSA to repeat that the fundamental right to equality was accessible to “all people” and not simply man and woman. Consequently, Article 14 (balance) discovers discrimination based on gender unconstitutional.
• Dignity and Privacy: the court additionally discovered, following NALSA, that gender identity discrimination affronts the principal right to dignity and privacy ensured under Article 21.
• Fundamental Right to Gender Expression: the court additionally reiterated the NALSA case in saying that gender expression and presentation are secured under Article 19(1(a) of the constitution, and the State could not “prohibit, restrict or interfere” with a transsexual individual’s expression of the equivalent.

• Shafin Jahan vs. Asokan K.M. and Ors ( (2018) 16 SCC 368  ): The court referred to Shafin Jahan v Asokan K.M. and Ors. where one’s preferred option to wed an individual was held to be indiscernible to Article 21 of the Constitution of India. Just as Article 16 of the Universal Declaration of Human Rights, which incorporates the right to marry as a human right.
• S. Puttaswamy vs. Union of India ( (2017) 10 SCC 1) : The Court likewise proceeded to refer to Justice K. Puttaswamy’ Case where the Supreme Court referred to the US Supreme Court case in Obergefell v Hodges in which the Court had noticed that it is conflicting to perceive a privilege a right to privacy concerning different issues of family life and not regarding the choice to enter the relationship that is the establishment of the family in the public eye. Since the Constitution of India is an empowering record that is welcoming transsexual people to join the mainstream and they can’t be prevented from the advantages of getting social establishments that are already in place in the mainstream.

DECISION: –       

• The Hon’ble Judges saw that sexual morphology, sexual character, sexual direction, and sexual self-perception fit during physical and social improvement to come full circle in typical sexuality. It doesn’t imply that any such deviation is bothersome or unreasonable. The court saw that sex and gender are different things. An individual’s sex is biologically decided at the hour of birth which isn’t so on account of sex.
• The Court expressed that a marriage solemnized between a male and a transwoman, both proclaiming Hindu religion, was a lawful marriage. The Court expressed that transsexual people have the right to choose their self-recognized sex, as maintained by the Supreme Court in NALSA v Union of India, which has been emphasized in Justice K. Puttaswamy v Union of India and again in Navtej Singh Johar v Union of India.
• The Court likewise held that the word ‘bride’ in the Hindu Marriage Act can’t have a static meaning and must be deciphered considering the general set of laws as it exists today. Subsequently, the term “bride” under Section 5 of the Hindu Marriage Act incorporate transwoman moreover. The Court at that point referred to Article 16 of the Universal Declaration of Human Rights, which incorporates the option to wed as common liberty just as Shafin Jahan v Asokan K.M. and Ors. where one’s preferred option to wed an individual was held to be fundamental to Article 21 of the Constitution of India.
• Guiding Principle of Interpretation: the court additionally noticed that the constitution is an empowering document and decided on its guidelines, it “would be absurd” to deny to the transsexual populace rights which effectively accessible to the standard.
• The Court, hence, held that refusal to enlist the marriage of Ms. Sreeja would add up to an infringement of her fundamental rights under Articles 14, 19(1)(a), 21 and 25 of the Constitution of India and suppressed the orders of the Joint Registrar No. II and the District Registrar of Tuticorin and directed the Joint Registrar No. II to enlist the marriage of the Petitioners.

ANALYSIS AND CONCLUSION: –

• The word ‘bride’ encompasses within meaning a transwoman if she perceives herself as a woman. Hence, a marriage solemnized between Hindu male and a Hindu transwoman is substantial Hindu Marriage according to Section 5 of Hindu Marriage Act.
• This is the first judgment in India where the right to marry under Article 21 of the constitution has been insisted for transsexual people and holding that ‘bride’ under the Hindu Marriage Act would cover transsexual people who identify as women. It confirmed the incorporation of intersex/transsexual people who distinguish as women, within the meaning of ‘bride’.
• The Court also expressed its appreciation for recent Tamil films that involved transgender characters. “Recent Tamil Films such as “Peranbu” where Mammooty marries a transgender and “Super Deluxe” where Vijay Sethupathi plays the role of a transgender and is also a parent to the child, he has fathered are encouraging trends”, remarked Justice Swaminathan.

SUGGESTION: –

• Even though the hon’ble court has given judgment in Sreeja’s favour but the mental trauma which Sreeja has faced during such proceedings should be taken into consideration for future reference. Because no one other than Sreeja can imagine the pain which she felt.
• “Remember this, whoever you are, however you are, you are equally valid, equally justified, and equally beautiful.” This line said by Juno Dawson, which remind us that transgenders are also a person we should understand their feelings and take care of their dignity and respect.
• Societies and Authorities including the court should take care of the mental health of these people.

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