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The judgment of this case is considered as one of the landmark judgments for the LGBTQ community. The honorable Madras High Court delivered this landmark judgment on the 22nd of April, 2019. This case dealt with the civil rights of the LGBTQ community, mostly in the field of marriage. In this case, a writ petition was filed by Arunkumar and Sreeja before the honorable Madras High Court. The petition was filed to make their marriage a valid one.
The facts of the case arose in this way that on 31st of October, 2018, Shri Arunkumar and Ms. Sreeja got married at Arulmighu Sankara Rameswara Temple, Tuticorin. The marriage was solemnized as per Hindu rites and customs. The village administrative officer had also stated that this marriage was performed, and both the parties to the marriage did not marry anyone before i.e. this marriage was not falling under bigamy for either of the parties. The temple authorities who permitted the performance of the marriage yet declined to confirm it. The parties to the marriage submitted a memorandum of registration of marriage under Rule 5(1) (a) of the Tamil Nadu Registration of Marriage Rules in Form I before the Joint Registrar No. II of Tuticorin District, who happens to be Respondent No. 3 for this case. On submitting the memorandum for registration, respondent no.3 refused to register. Thus being aggrieved by the action of respondent no.3, the parties to the marriage appealed before the District Registrar of Tuticorin District and he happens to be the respondent no.2 for this case. However, the second respondent also agreed with the third respondent and confirmed his decision. Therefore, the petitioner filed this case before the honorable Madras High court challenging the refusal to register the marriage.
The learned Government Advocate for respondent no. 1 to 3 stated that as per Section 7 of the Tamil Nadu Registration of Marriage Act, 2009 the Registrar has the power to refuse registration of marriages. He can do so if he is not satisfied by the fact that the marriage solemnized was according to the personal laws of the parties to the marriage. And also according to Section 7(1) (c) of the Act states that if the documents produced before the Registrar does not prove the married status of the parties, then the Registrar can refuse the marriage. In regard to this particular case, the place where the marriage was solemnized was the temple. But the temple authorities had not issued any certificate which indicates the performance of the marriage. The learned Advocate of the respondents further stated that according to Section 5 of the Hindu Marriage Act, the bridegroom must complete 21 years at the time of marriage, and the bride 18 years. To define the term bride, he referred to the Oxford Advanced Learner’s Dictionary, where a bride is defined as a woman on the wedding day. But in this case the second petitioner i.e. Miss Sreeja is transgender and not a woman. Thus, the Registrar had refused as it was contrary to the provision of the Hindu Marriage Act.
The learned counsel for the petitioners stated that previously there had been judgments by the honorable Supreme Court where the third gender was recognized. He referred to the National Legal Service Authority v Union of India (2014), where the honorable Supreme Court upheld the transgender person’s right to decide their self-identified gender. The SC in N.L.S.A case also stated that the existence of the third category outside the male-female binary has been recognized in the Hindu Tradition. To emphasize his statements, he also referred to the mythological characters. He stated about Sikhandi of an epic Mahabharata. He also referred to another character of the epic i.e. Arjuna who has assumed the form of transgender in the epic at a point in time. He also referred to some books like The Tell-Tale Brain. He further added in his contention that sex and gender are not one and the same. A person’s sex is biologically determined at the time of birth, but in gender, it is not. Thus in Article 14 of the Constitution, the SC held that by the term any person, it refers to al. And all also includes the transgender within the territory of India. And like all, they are also entitled to legal protection. Thus discriminating against them will be a violation of Article 14, Article 19(1) (a), and Article 21 of the Constitution.
The court after hearing both the advocates started to analyze the facts of the case. The Court opined that the second petitioner has chosen to express her gender identity as that of a woman, and as per the SC it falls within the domain of personal autonomy. Thus, the authorities cannot put questions on that. For the term bride that is mentioned in the Hindu Marriage Act, the Court stated that it does not convey that it is static. By referring to Justice G.P. Singh’s Principles of Statutory interpretation, The Court can apply the meaning as per the condition of the present day. Article 16 of the Universal Declaration of Human Rights was also referred to. In this present case, the bride not only restricts to a woman but also extends to transgender. As she identifies herself as a woman she will be referred to that. In 2018, Shafin Jahan v Asokan K.M. and ors, the Sc held that the right to marry a person of one’s own chicer was an integral part of Article 21 of the Constitution. Also in NLSA Case, the right of a transgender person to marry was recognized. As the right to marriage has been recognized, and both the parties profess Hindu Religion thus their personal laws also recognize it. Another aspect of this case was observed, that the parties were intercaste, but the Government of India has introduced a scheme known as Dr. Ambedkar Scheme for Social Integration through inter-caste marriages to encourage intercaste marriages. Thus, there is no hindrance in this aspect. By seeing all the facts, The Court finally stated that it has been observed that the fundamental rights of the second petitioner have been infringed in the light of Article 14, Article 19(1)(a), Article 21, and Article 25. Thus, the third respondent is directed to register the marriage. By this judgment, the honorable Madras High Court had stated what is obvious and as per the Court to see obvious one needs not only physical vision in the eye but also love in the heart.
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