Marriage between man and transwoman is valid: Madras HC

Marriage solemnised between a man and a transwoman is valid and authorities should register it, the Madurai Bench of the Madras High Court has ruled in a path-breaking judgement that will be music to the ears of hundreds of such couples.

Justice G R Swaminathan of the Madurai Bench upheld the marriage of Arun Kumar and Srija, a transwoman, held in October 2018 under Section 5 of the Hindu Marriage Act, 1955 by ruling that the court was not breaking any ground, but merely stating the obvious.

“Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart,” Justice Swaminathan wrote in his 28-page order on Monday. He also ruled that any marriage between a man and a transwoman both professing Hindu religion is a “valid marriage” and the Registrar of Marriages is bound to register the same.

The judgement is indeed path-breaking as many such couples would now be able to register their marriages – DH had reported in March 2018 that a transsexual couple Preethisha and Premkumaran had embraced self-respect marriage conceived by Dravidian legend Periyar E V Ramasamy after they were shunned by temples which refused to solemnize their coming together.

Justice Swaminathan was delivering judgement on a petition filed by Arun Kumar and Srija who wanted a direction to authorities to register their marriage which was solemnised at the Arulmigu Sankara Rameswara Temple in the port city of Tuticorin on October 31, 2018.

The Tamil Nadu government had argued that the registrar can reject any application if he is satisfied that the marriage between two parties was not performed in accordance with the “personal laws of the parties, any custom or usage or tradition.”

Quoting the 2014 Supreme Court judgement that upheld transgender persons' right to decide their self-identified gender, the judge said when the right of the transgender persons to marry has been upheld by the apex court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act.

In his judgement, the judge also termed as “encouraging trends” recent Tamil films like Peranbu and Super Deluxe which deals with the issues being faced by third gender. Contending that sex and gender are not one and the same, the judge said while a person’s sex is biologically determined at the time of birth, it is not so in the case of gender.

“The Hon’ble Supreme Court held that Article 14 of the Constitution of India which affirms that the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India would apply to transgenders also,” Justice Swaminathan ruled.

On the marriage between Arun Kumar and Srija, the judge said one can have a civil marriage or a sacramental marriage. “The petitioners' marriage was solemnized in a temple. Therefore, their fundamental right under Article 25 has also been infringed in this case,” he ruled and asked the Health and Family Welfare Department to issue a G.O prohibiting the performance of sex reassignment surgery on intersex infants and children.

The judge also opined that the running of any inter-sex child from the family to the margins and beyond is a fatal journey that must be arrested and that parents must be encouraged to feel that the birth of an intersex child is not a matter of embarrassment or shame.

“Time has come when they are brought back from the margins into the mainstream. This is because even though the transgender community is having its own social institutions, the stories we hear are horrendous,” he wrote and asked the Government to launch a sustained awareness campaign in this regard.