Published: 24th April 2019
Register marriage between man and transwoman from Thoothukudi, orders Madras HC
The Court has also directed the Health Secretary to issue a G.O prohibiting sex reassignment surgery on inter-sex infants and children
The Madurai Bench of Madras High Court ordered registration of marriage between a man and transwoman from Thoothukudi following a petition filed by them seeking direction to authorities to register their marriage.
The Court has also directed the Health Secretary to issue a G.O prohibiting sex reassignment surgery on inter-sex infants and children. The landmark judgment was passed on April 22 by Justice G R Swaminathan on a petition filed by one Arunkumar and Sreeja of Thoothukudi seeking direction to the Registration department after the department refused to register their marriage. The department stated that Sreeja, being a trans-woman and not a woman, cannot be placed under the category of 'bride' in Hindu Marriage Act, 1955 and that the word 'bride' only refers to 'woman' on her wedding day.
However, Justice Swaminathan rejected the contentions by observing, "Transgender persons who are neither male nor female fall within the expression 'person' and hence 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 identity, therefore, impairs equality before the law and equal protection of the law and violates Article 14 of the Constitution of India, he added.
The Judge also referred to the epics Ramayana and Mahabharata and further held that the existence of a third category outside the male-female binary has been recognised even in the indigenous Hindu tradition. Hence the expression 'bride' occurring in Section 5 of the Hindu Marriage Act, 1955 would have to include within its meaning not only a woman but also a transwoman, he stated and directed the authorities to register the marriage solemnised between the petitioners. Pointing out that one of the petitioners Arun Kumar belonged to Scheduled Caste, the Judge also recommended that they can avail financial incentive under Dr Ambedkar's Scheme for Social Integration through Inter-Caste Marriages.
Sex reassignment surgery on inter-sex infants Justice Swaminathan also noted that inter-sex children must be given their time and space to find their true gender identity. -"But the parents make the infant undergo sex reassignment surgery (SRS), without providing them the opportunity,-" he stated and directed the Health Secretary to issue a G.O prohibiting the performance of sex reassignment surgery on intersex infants and children.