“She, who never knew which box to tick, which queue to stand in, which public toilet to enter (Kings or Queens? Lords or Ladies? Sirs or Hers?). . . She, who knew she was all wrong, always wrong. She, augmented by her ambiguity.“— Arundhati Roy, The Ministry of Utmost Happiness
By Aastha Khanna and Danveer
India broke out of the gender prison in 2014 when the Supreme Court of India ventured to adopt an all-embracing approach to categories of sex and gender by recognizing transgender as the “third gender” and conferring the right of self-perceived gender upon non-binary individuals. Since then, India has seen a catena of remarkable judgments weaving transgender rights into its legal fabric. In one of those judgments, the Court recently prioritized a liberal rather than literal interpretation of the term “bride,” and transferred the abstract right of self-perceived gender of a transgender person into a tangible civil right to marry. This case, Arunkumar v. Inspector General of Registration, serves as a beacon of light for gender equality. As the first judgment of its kind in India, the decision bestowing the right to marry upon persons with self-identified gender has spurned all dogmas that impede civil rights for the transgender community.
On October 31, 2018, Arun Kumar married Sreeja, a transwoman, at Arulmigu Sankara Rameshwara Temple, Tuticorin, in accordance with Hindu rites and customs. The temple authorities, however, refused to register the marriage. After an unsuccessful appeal before the District Registrar, the decision was challenged before the Madras High Court. At issue was whether the term “bride” in Section 5 of the Hindu Marriage Act, 1955 includes transwomen, and whether the State’s refusal to register the marriage violates Articles 14, 19(1)(a), 21, and 25 of the Constitution of India, 1950.
The State argued that the temple authorities did not certify the marriage, providing valid grounds for refusal, and that Sreeja did not fulfill the statutory requirement for a “bride” under an implied meaning of only cisgender women under Section 5 of the Hindu Marriage Act, 1955, rendering the marriage invalid. The word “bride” was not defined in the Act, and the State contended that a “bride” is a “[cis]woman on her wedding day.” Ultimately, the Court found that the term “bride” does not have a “static or immutable meaning” and embraces ciswomen, transwomen, and intersex persons, equally.
The Court further opined that impinging on a person’s right to marry curtails their fundamental rights under the Indian Constitution, as referenced in Shafin Jahan v. K.M. Ashokan, which recognized the right to marry as a fundamental right of Article 21. Moreover, the Court held that denying two practicing Hindus the right to marry under Hindu law invades their freedom of religion protected under Article 25. The Court also heeded the call to privacy as a fundamental right in the United States Supreme Court’s landmark case on same-sex marriage, as discussed in Justice K.S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. Lastly, the Court held that the State’s refusal to register the marriage amounts to a watering-down of the NALSA ruling, and thusly violates the aforementioned fundamental rights of the couple.
By one reckoning, the Court’s decision has a far more revolutionary and inclusive scope than the Transgender Persons (Protection of Rights) Act, 2019, which balks at the right to self-identification by affixing inhibitors with limiting language and definitions. The Court’s ruling redefined the legal connotation attached to the terms “bride” and “bridegroom,” and demonstrated a rare application of the NALSA judgment that shunned the State’s meddling of transgender rights. The decision also adopted an inclusive approach in statutory interpretation that aids in the continued legal battle for a progression from the gender binary to the gender spectrum in matters concerning gender equality. Overall, this case serves as a colossal stride forward on an international level for all genders seeking equality under the law.
Aastha is an LLB candidate at Law Centre-I, University of Delhi. She obtained her bachelor’s degree in Commerce from GGS, University of Delhi. Her areas of interest are human rights, free speech jurisprudence, and criminal law. She can be reached at firstname.lastname@example.org.
Danveer is an LLB candidate at Campus Law Centre, University of Delhi. He obtained his bachelor’s degree in Commerce from Punjab University. His areas of interest are human rights and IPR.