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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

An Unconventional Right: Right of Transgender to Marriage

INTRODUCTION:

The present world is characterized by dynamism. We reached all the technological progress but still, we are none prosperous at the theory of the LGBT[i] community. The third gender, the unrecognized community is all between us but invisible.                                                                                                   

                                     
“What if I’m not like u, what if I’m few of few. A third most gender that nobody wants, but I too have a desire to be at home, to get married, but so sorry I can’t!” 

Transgender people are those who choose not to go with the so-called noble notion of the community and assigned themselves the gender opposite to the gender that is affixed with them at the time of their birth. These people have the self-identification of who they are and not what they are stamped with.

RIGHT OF TRANSGENDER IN INDIA:

In ancient times, transgender was venerated in society and used to consider as oracular but with the passage of time, they are reduced to dust and imprisoned. The present scenario is that they got certain right, the right through the resistance!

Transgender in India are given many rights in the explicit form. Many landmark judgments had been passed so that transgender can walk freely and without being ashamed of their identity in the allies of society. In the case of national legal service authority v. union of India, a precedent judgment was passed by the bench[ii] of Supreme Court and it was held that transgender is the third gender other than two socially declared genders is male and female. In this case, it was also asserted that fundamental rights will be equally applicable to them.

Further in the case of Arun Kumar and another v. the inspector general of registration and ors. , the madras high court held that “a properly solemnized marriage between a male and Tran’s woman is valid under the Hindu Marriage Act, 1955, and the Registrar of Marriages is bound to register the same. The judgment also quotes NALSA v. Union of India (2014), which held that transgender persons have the right to decide their “self-identified gender”.

PREVALENT PROBLEMS OF TRANSGENDER :

Transgender basically faces problem such as-

  • lack of medical facilities
  • discrimination 
  • homelessness 
  • unemployment 
  • lack of educational institution 
  • marital problem 

Right to vote, the constitutionally enforced legal right was given to the transgender in the year 1994. voter id card which is instrumental in the right to vote privilege had the gender bifurcation only in terms of male and female and therefore right to vote was “ no right to vote “ for them. Other aspects where these communities face problems are the adoption of child and property rights. Hence we can say that a transgender inflicts with the thought of society that they are neither male nor female when it should be “transgender are male and female, hence human”.

CHALLENGING SECTION 377: AN END TO DISCRIMINATION:

Section 377 states that- “Unnatural offenses: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section”, is a much-debated section. It gets all the limelight from the 2009 Delhi high court case Naz Foundation and others v. Government of the national capital territory of Delhi where it was held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India’s Constitution.

Further 2013 case Suresh Kumar koushal and another v. naz foundation and other which was a two judge bench[iii] where the Supreme Court struck down the decision by the High Court in the NAZ Foundation Case and deals with the constitutionality of Section 377 of the Indian Penal Code which criminalizes sexual activity ‘against the order of nature’ that is criminalizes any sexual activity other than the heterosexual penile-vaginal.

Finally, the 2018 case which was navtej Singh johar v. union of India[iv] overturned the Suresh Kumar koushal case’s judgment and decriminalized section 377[v], and hence these events open grills for the transgender to have the right as the human being.

STATUS OF TRANSGENDER MARRIAGE IN INDIA:

Marriage laws are trans-nationally changing because of the changing attitude and opinion of the people.
at this point, a very genuine question arises whether a trans-women when married can be called a bride? Madras high court[vi] in this regard recognized trans-women as a bride under section 5 of the Hindu marriage act, 1955.

CONCLUSION:

In the end, one thing that can be pointed out even after all the rights given to the transgender is that these rights, the right by mass resistance are not going to work unless dismal sight on them is washed away. 

[i] LGBT community includes four different communities –lesbian, gay, bisexual, and transgender.
 lesbian – homosexuality in women gay- homosexuality in male Bisexual-“sexually attracted not exclusively to people of one particular gender; attracted to both men and women”.
 Transgender-“denoting or relating to a person whose sense of personal identity and gender does not correspond with their birth sex”.
[ii] national legal service authority v. union of India was the two-judge bench of the supreme court
[iii]“ Supreme Court bench consisting of G. S. Singhvi and S. J. Mukhopadhaya”
[iv] was the five-judge bench case
[v]“ But portions of Section 377 relating to sex with minors, non-consensual sexual acts such as rape, and bestiality remain punishable”
[vi] “Justice G.R. Swaminathan in his ruling held that a transsexual was also a “bride” and the term applied in the Act would not significantly indicate only to a woman. “A marriage consecrated between a male and a trans woman, both are having Hindu religion and it will be a valid marriage under Section 5 of the Hindu Marriage Act, 1995 and the Registrar of Marriages is obliged to record the same.”

Author: Ananya Bharti, Vivekananda institute of professional studies 

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