RIGHTS OF TRANSGENDER TO MARRIAGE AND ADOPTION
Transgender community in our country has a great history where, during one period they enjoyed dignity and privileges and abolishment of the same during other. According to Hindu mythology there are three identified genders;Male, Female, and Trans but the laws mainly give protection to male and female. Third gender people have their own struggle for their rights as a human being. One such right and an important one is the right to Marriage and Adoption.Transgenders, from the beginning have suffered a lot for their rights and privileges. With the landmark “NALSA judgement,” a ray of hope was given to third gender people. Further, with the landmark decision by the honourable Supreme Court, partial slashing of section 377 of the IPC led to further happiness and hope for a better tomorrow. However, there is a lot of lacuna in the legislation which affects the enforcement of the rights of Transgenders. The Transgender (Right to Protection) Bill of 2016, 2018 and 2019 only scratch the surface of what needs to be done and do not get to the nitty gritties.This research paper will make an attempt to highlight the gaps and also provide suggestions to overcome those lacuna with reference to the right to marriage of transgenders. The Right to Marriage is a basic human right but there is no law or legislation which would help transgenders enforce this right. This paper will further make an attempt to first of all understand the term transgender or third gender people and compare the laws relating to marriage or lacuna in the laws for transgenders and how this can be
- Hindu law
TABLE OF CONTENT:
- Right To Marry: A Constitutional Right
- Recognition Of Third Gender In India
- Recent Legislation
- Marriage Under Hindu Customary Law
- Amendment To Section 5 Of Hindu Marriage Act, 1955
Transgender is a person who is neither completely male nor completely female. Transgender can be a combination of both male and female or neither male nor female.Transgender” is an umbrella term that describes people whose gender identity or expression does not match the sex they were assigned at birth. For example, a transgender person may identify as a woman despite having been born with male genitalia. ‘Trans’ is used as shorthand for “transgender” very often. Transgender are considered to be socially and economically backward classes throughout the world. They have existed since the 9th century BC and are considered to be known as ‘Eunuchs’. During
Mughal period, they were regarded as castrated men who were in popular demand to take care and guard the royal women quarters. The Transgender were treated with huge respect and dignity in the courts of Mughal Emperors as they used to hold reputated and high positions in the court. There were many rights guaranteed to them, they were given right to hold and acquire property but unlike the other gender they were not given right to inherit from their blood relations and right to marriage was also not present there.They were permitted to collect revenues from the land and were justified in carrying out business of begging, etc.
When the Britishers arrived in India, the transgender right to life with dignity and property and the right to be recognized and earn livelihood was abolished. During the early period of Britisher’s rule in India transgender were given benefits in the provision of lands by rulers of various states which was latter on taken away by the Britishers. In the presidency of Bombay, the Britishers were very heavy on the transgender, the land was taken away from the on the ground that such lands were not inherited from blood relations under the Bombay Rent-Free Estates Act, 1852.1
1.Bombay Rent-Free Estates Act, 1852
They were pushed under the ambit of Criminal Tribes Act, 1871 and since 1871,the tag that transgender carried hindered their growth and rendered them to such a status that they were left in a condition where acceptance of their existence was absent in not just their parents but in themselves also. This lack of recognition in the family and society sphere was a major hurdle in any kind of rights to be created for them including the Right to Marriage, Adoption, Inheritance. During contemporary time also, this mentality of Indian society of not considering the transgender as an integral member of the society has not changed completely. Also, the laws governing them had amended from time to time but they are not treated with full respect and dignity even now which is a part of fundamental right to life under Article 21 of Indian Constitution.2
2.Article 21 – Constitution of India
RIGHT TO MARRY: A CONSTITUTIONAL RIGHT
The right to marry is now a constitutional right in India which permits persons to make the choice of spouse according to their own choice, free will, and this right cannot be infringed by the state or any other person.3 In the Indian context, the right of life and personal liberty which is guaranteed under Article 21 of the Constitution does not merely provide for a physical existence, rather it implies the existence of human life which is qualitative and meaningful.4 The recognition of inherent human dignity is a prerequisite for the warranting of rights under Article 21.5 The right to marry being such crucial for retaining individual dignity and for enjoying a meaningful human existence, Indian courts in many judgements have therefore interpreted marriage to be an essential right under Article 21 of the Indian Constitution.6
When marriage is such an important civil right that is fundamental every single citizen of the country, is it justifiable to exclude people specially on the grounds
of their denial to a stereotyped differentiation of binary genders? Disappointingly, even though the right to marry as per one’s own choice has been recognized as a fundamental right, the contemporary social scenario which third gender people are facing strips them of this basic right. The personal law which recognises Hindu marriage and law enforcement agencies on the other hand make no effort to guarantee third gender people their fundamental right to marry any individual of their own choice.
3.Loving v. Virginia :: 388 U.S. 1 (1967) :: Justia US Supreme Court Center
4.Olga Tellis & Ors vs Bombay Municipal Corporation & … on 10 July, 1985
5.Maneka Gandhi v. Union of India, 1978 AIR 597 1978 SCR (2) 621 197
6.Mr. “X” vs Hospital “Z” on 10 December, 2002 – Indian Kanoon
RECOGNITION OF THIRD GENDER IN INDIA:
The gender of an individual as opposed to the sex of that individual,is not merely restricted to the heteronormative idea of existence as male or female. The entire concept of gender is not only related to the physical characteristics of a person, but also related to the subtle psychological traits and a unique consideration of social interaction.Thus, gender is an inclusive umbrella term which includes variety of gender schemes between the two poles of heterosexual males and females. Since the ancient era, Vedic and Puranic literature have recognized the presence of majorly three genders, i.e. heterosexual male, heterosexual female and the tritiya prakriti or the third sex.28 The third gender people, commonly
known as Hijras, in India and can be defined as a natural combination of both male and female features to such an extent that they cannot be categorised within the separate classification of either male or female, two distinct binary genders, i.e. male and female. Hijras are not men by virtue of physical appearance, and on the other hand ,psychologically they are also not women, though they are like women but have no female reproductive organs and they do not even menstruate like women .In Hindu culture, they were socially recognized and held a special position,they were specially invited on auspicious occasions to give their blessings, occasions such as, marriage or the birth of a child. With a passage of time, however, this special position of the Hijra community fell down, relegated to the dust, and incarceration. During the British period, third gender people were likened to a deadly disease that could infect the entire society. In consequence, the Criminal Tribes Act was enacted in 1871, which ultimately granted powers in the hands of the government to apprehend transgender for the mere apprehension of promiscuous activities.During this period the Hijra community suffered a lot at the hands of law enforcement agencies that grossly abused their powers. Ultimately, the Act was repealed in August1949.However, the after effects of the Act still continued in India. Third gender people were deprived of the basic rights given under Part III of the Indian Constitution and were constantly subjected to humiliation.Even today, society degrades and ridicules people from the third gender community. Heavy discrimination is directed against them merely because of their transsexual or intersex nature. As a result of this they join the secluded and ostracized Hijra community. But even there they live under the guru-chela system where, once again, they have to be subservient and submissive, this time to the gurus.
Across the world, only seven countries have recognized the third gender community as a separate category of people fitting into neither male nor female categories. These include the states of Pakistan,Nepal,Bangladesh, Australia, Germany,New Zealand. India got influenced by these states and as well as by international obligations under various conventions, a major breakthrough came in 2015 through NALSA V. UNION OF INDIA judgement, when the Indian Supreme Court recognized the existence of a third gender community. This step was taken to satisfy state obligations under international conventions and principles in respect of an individual’s right against discrimination based on sex guaranteed under Article 15, Right to equality guaranteed under Article 14 and Right to life and personal liberty guaranteed under Article 21. Furthermore, this ruling reinforced the idea that individuals have the option of choosing their own identity and that it is the state’s duty to respect, protect and fulfil the human rights of these persons irrespective of their genders.
The Court, in National Legal Services Authority, case recognised third-sex people as a separate class of people apart from the straightjacket classification of
gender as male and female. Supreme Court also recognised their
- Civil right to vote
- To receive education
- To marry
- To receive inheritance
- To adopt children
Thus, gender recognition is the first step towards admitting the need and creating an enforcement mechanism for the array of human rights that
every citizen including third-sex people are entitled to. Multiple problems faced by the third gender community with respect to marriage and other rights necessitate a variety of solutions and actions which need to be reflected in policies and the laws,
and in the attitude of the government and the general public. Further, decriminalisation of Section 377 of Indian Penal Code gave array of satisfaction to the third gender people.
Transgender people in India are allowed to change their legal gender post-sex reassignment surgery under legislation passed in 2019, and have a constitutional right to register themselves under a third gender.In 2018, in a landmark decision Navtej Singh Johar v. Union of India, the Supreme Court of India decriminalised consensual homosexual intercourse by reading down Section 377 of the Indian Penal Code and excluding consensual homosexual sex between adults from its ambit.Homosexuality was never illegal or a criminal offence in ancient Indian and traditional codes but was criminalised by the British during their rule in India.
MARRIAGE UNDER HINDU CUSTOMARY LAW:
Under Hindu law, marriage has a divine origin and is performed to mean a sacred union of two individuals for the performance of religious duties.
Marriage, as per Vedic scriptures, is known to exist in eight different forms as, brahma, asura, daiva, arsha, prajapatya, paisaca, rakshasa and gandharva.
Amongst above mentioned forms, Gandharva vivaha is considered to be the most pious and widely used form of marriage because it is marriage based on mutual love and attraction between two persons. This type of marriage supports the third gender people marrying each other as the only qualification it demands prior to solemnization is only mutual love and attraction between the two individuals marrying each other, accompanied by the performance of relevant ceremonies and customs. In Hindu rituals, common customs include the exchange of garlands and an invocation before the sacred fire known as saptapadi.
These ceremonies holds an important position even in the legislation codifying Hindu marriage wherein the absence of the such customary ceremonies or rituals will have the effect of not solemnizing the marriage in its true sense and would be considered void.Gandharva marriage is a form of marriage primarily performed with mutual consent of both the individuals taking part in the marriage and, such marriage, requires no witnesses, no parental consent and no ceremonial official. Despite its disputed status as a suitable form of marriage in Hindu sacred texts, the literary masterpiece Kamasutra of the 4th century accepts Gandharva vivaha as the best and pure form of marriage because it is mainly based on mutual attraction. In the Hindu texts, one’s choices, known as samskara, are the cumulative outcome of the desires and wants of an individual’s past lives, a pattern representing one’s conditioned as well as innate tendencies. The word samskara is also understood to mean a rite of passage, that is, a rite by exercise of which one attains to almost near completion or self-fulfilment. Hinduism believes life’s objective to be four-fold, and the four tenets that form the basis of this belief are artha, kama, dharma and moksha. Hindus believe in the rebirth of human life so as to be able to work through the unfulfilled attachments of previous births and, thus, ultimately move towards liberation from the attachments along with freedom from the cycle of birth and death. This urge to work through one’s attachments constitutes one’s individual and eternal dharma, and it is considered inborn, innate and inerasable. It is in this context that it can be said, since marriage is an essential requisite for the fulfilment of one’s individual dharma, that a person possessing an innate desire to love another person may do so without considering the gender of that person. Individuals, irrespective of their sex or gender, should have the right to express such desire in the form of marriage if they wish to do so.
Amendment To Section 5 Of Hindu Marriage Act, 1955;
In a landmark case that came up before the the High Court of Madras in 2019 wherein a male and a transgender identifying as a woman, both belonging to Hindu community solemnized their marriage in a temple. The temple authorities, while performing the ceremony, refused to vouch for the “authenticity” of the marriage. As a result, the Marriage Registrations Officer (MRO) refused to register the marriage.
The petitioner made an appeal against the decision. During the hearing, the State, while supporting the refusal to register the marriage argued that a “bride” under the Hindu Marriage Act, 1955 can only refer to a “woman on her wedding day”. The main contention of the argument was that since a transgender person is not a woman, the marriage can not to be registered.
The High Court reiterated that the expression “bride” in the Hindu Marriage Act, 1955 cannot have a static meaning and that a statute must be interpreted according to present-day conditions. The Court also referred to the case of K. S. Puttaswamy v. Union of India to state that the right to marry a person of one’s choice is an integral part of Article 21 of our Constitution.The Court finally decided that “bride” under Section 5 of the Hindu Marriage Act, 1955 will include a woman, a transwoman or an intersex woman because the only consideration is how the person perceives herself and nothing else.While, in this instance, the happy couple finally obtained a marriage registration certificate under the Hindu Marriage Act, 1955 after a long fight, in another case an interesting issue was listed in front of the High Court of Himachal Pradesh concerning a question of the mode of succession.
The crucial yet most fascinating questions with respect to third gender people’s right of
marriage, inheritance and adoption can only be answered by a wider judicial interpretation, most
importantly by introducing the much needed change in the law, in the aftermath of the recognition of third gender people in the National Legal Services Authority judgment. As enumerated, the lack of clarity under Hindu personal law, in addition to the absence
of legislation recognizing marriage and inheritance rights of third-sex people, subjects them to indefinite discrimination even though the Supreme Court in its landmark judgement has recognized their right of equality under Article 14 of the Constitution of India. Indian laws relating to marriage, adoption, inheritance and other welfare legislation merely recognize the paradigm of binary genders of male and female which is based on a person’s sex assigned at birth. However, this is a flawed approach especially in the contemporary scenario where third gender rights have been recognized globally and domestically. The doctrine of incorporation which stands at the base of India’s international obligations mandates legislators to enact laws for implementing those recognized international principles so long as they do not contravene domestic provisions.The Yogyakarta Principles address a broad range of human rights standards and their application to issues of sexual orientation and gender identity. These principles even embody the duty on states to include interpretations and amendments to legislation so as to ensure equality and non-discrimination on the basis of gender identity or sexual orientation.Furthermore, these principles
have been endorsed by the UN Special Rapporteur,regional human rights bodies, national courts, government commissions and commissions for human rights, and the Council of Europe as a human rights standard for protecting and fulfilling the human rights of all persons, regardless of their gender identification.Against this backdrop, it is the duty of Indian legislators to amend the current legislation governing Hindu personal law so as to bring it into consonance with India’s international obligations as well as with its duty to protect the fundamental
rights of the third gender community.