“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 said.

Madras HC shuts down TN govts problematic argument upholds trans womans marriageImage Courtesy/ Twitter: @ramnellai
news Law Tuesday, April 23, 2019 - 17:48

When Sreeja and Arun Kumar arrived at a temple in Thoothukudi for their wedding in October last year, the temple management opposed their wedding. The reason? Sreeja is a transgender woman who wanted to marry a cisgender* man. However, they managed to get married after a friend – also a trans woman – who used to work as a temple priest, officiated their wedding. However, the couple has not been able to get their wedding registered all these months because the registrar has refused.

On Monday, the Madras High Court stood up for Sreeja’s rights, and shut down the Tamil Nadu government’s transphobic arguments for why the couple’s wedding cannot be registered.

The advocate for the government said, "The term ‘bride’ can only refer to a ‘woman on her wedding day’. In the case on hand, the second petitioner Srija is a transgender and not a woman."

Debunking the government advocate's argument, the court held that the expression “bride” occurring in Section 5 of the Hindu Marriage Act, 1955, will have to include within its meaning a trans woman.

"It would also include an intersex person/transgender person who identifies herself as a woman. The only consideration is how the person perceives herself," Justice GR Swaminathan said, and ordered that the government must register the couple’s wedding.

Read: How a trans woman officiated another trans woman’s wedding at a TN temple

“I am unable to agree with the stand of the learned Government Advocate,” Justice Swaminathan said, calling on the Supreme Court’s landmark in the National Legal Services Authority v. Union of India judgment of 2004 (henceforth, NALSA judgment). “The Hon'ble Supreme Court upheld the transgender persons' right to decide their self identified gender. The central and State governments were directed to grant legal recognition of their gender identity such as male, female or third gender,” the court said.

“A marriage solemnised between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same,” Justice GR Swaminathan said.

“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,” he added.

Justice Swaminathan observed, “For too long, the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream.”

Reminding the Tamil Nadu government of the praise it has received for being progressive in the past, the court said, “In Karnataka, Akkai Padmashali, a transgender activist could officially register her marriage with V Vasudev and receive the certificate in the matter of few hours in January, 2017...But in State of Tamil Nadu which has been lauded and praised by the Supreme Court for its progressive measures in the NALSA judgement, there is a refusal by the authorities to recognise the validity of the marriage that has taken place between the petitioners herein.”

The judge also quoted Dr BR Ambedkar's speech in the Constituent Assembly on November 25, 1949, “There is yet another aspect of the matter. Arunkumar, the first petitioner is a Hindu Kuravan. It is a notified Scheduled Caste community. The second petitioner belongs to Saiva Vellalar community. The Government of India has introduced a scheme known as Dr Ambedkar Scheme for Social Integration through Inter-Caste Marriages to encourage intercaste marriages. As observed by Dr.B.R.Ambedkar in his speech in the Constituent Assembly delivered on 25th November, 1949 castes are anti national. Intercaste marriages alone will ultimately lead to social integration and fulfill the preambular promise of fraternity. The petitioners are clearly entitled to get financial incentive as set out in the said scheme. The petitioners are permitted to submit an application to the fifth respondent who shall on being satisfied about the eligibility of the petitioners disburse the incentive amount to them.”

NOTE: A “transgender person” or “trans person” is someone who does not identify with the gender they were assigned at birth. A “cisgender person” or “cis person”, on the other hand, identifies with the gender they were assigned at birth.

Also read: Ban sex reassignment surgeries on intersex infants, Madras HC tells TN govt

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