HC upholds marriage between man, transwoman

Asks government to prohibit sex reassignment surgery

April 23, 2019 12:11 am | Updated 07:32 am IST - Madurai

In a significant judgement, the Madurai Bench of the Madras High Court on Monday held that the marriage solemnised between a man and a transwoman was valid and ordered its registration.

Taking into account the plight of inter-sex persons, the court directed the Health and Family Welfare department to issue an order prohibiting the performance of sex reassignment surgery on inter-sex infants and children. The court also directed the government to launch an awareness campaign in this regard.

Justice G. R. Swaminathan observed that the marriage solemnised between the couple was valid and the Registrar of Marriages was bound to register it. “By holding so, this court is not breaking any new ground. It is merely stating the obvious. Sometimes, to see the obvious, one needs not only physical vision in the eye but also love in the heart.”

The court was hearing the case of a couple from Thoothukudi who sought a direction to the Joint Registrar to register their marriage that was solemnised at a Hindu temple as per Hindu rights and customs.

The Village Administrative Officer had certified the marriage as performed and not bigamous. The temple authorities too permitted the marriage but declined to vouch for it. However, the Joint Registrar refused to register the marriage, which was challenged before the court. When it was contended that the expression ‘bride’ referred to a ‘woman on her wedding day,’ the court observed that sex and gender were not one and the same. “A person’s sex is biologically determined at the time of birth. Not so in the case of gender.”

Referring to Articles 14, 19 and 21 of the Constitution, the court said that they affirm that the State shall not deny ‘any person’ equality before law or equal protection within the territory of India, which would apply to transgenders also. “They fall within the expression ‘person’ and hence are entitled to legal protection of laws in all spheres of State activity as enjoyed by any other citizen of this country.”

“Discrimination on the ground of sexual orientation or gender equality therefore impairs equality before law and equal protection.” When the gender identity is chosen to be expressed to be that of a woman, it is not for the State authorities to question this self determination, the court said.

“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.”

The court, while observing that one must not be forced to undergo medical procedures as a requirement for legal recognition of their gender identity, said, “Any inter-sex child is entitled to and must stay within the folds of its family.”

“Running away from the family to the margins and beyond is a fatal journey that must be arrested. Time has come when they are brought back from the margins into the mainstream. Parents must be encouraged to feel that the birth of an inter-sex child is not a matter of embarrassment or shame,” the court said. Taking into account that the couple belonged to different castes, the court said that they would be entitled to the benefits of Dr. Ambedkar scheme for social integration to encourage inter-caste marriages.

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