Is India Ready to accept Transgender Marriage with reference to Marriage related Laws in India?
The judgment passed by the Supreme Court has spurred up the debate that, is
the Indian legal system ready to accept transgender marriage? With the
Abrogation of section 377, India has joined fists of a handful of countries
recognizing same-sex marriage. This decision has shown huge support from the
LGBTQ+ community but some communities are opposing the same as it is evident in
opinion poll 2019.
On September 6, 2018, five judges constitutional bench of the Supreme Court
comprising of erudite judges the then CJI Dipak Misra, R. F Nariman, AM
Khanwilkar, DY Chandrachud, Indu Malhotra unanimously passed a decision
repealing colonial-era section banning homosexual intercourse. Section 377 of
IPC criminalizes consensual sexual acts of adults (i.e. persons above the age of
18 years who are competent to consent) in private, is violative of Articles 14,
15, 19, and 21 of the Indian Constitution.
Gender identity refers to an individual‘s self-identification as a man, woman,
transgender, or other identified category. Dealing with the legality of
transgender identity, Justice Radhakrishnan once pronounced that - The
self-identified gender can be either male or female or third gender. Hijras are
identified as persons of the third gender and are not identified either as male
or female. Gender identity, as already indicated, refers to a person‘s internal
sense of being male, female, or transgender.
Lesbian, Gay, Bisexual, Trans, Queer, and many other unrecognized communities
are better known as the LGBTQ+ community. They have faced prolonged ignominy in
India. We have always been taught there are two genders, you are either a male
or a female, the third gender has never been a part of our lives to the extent
Indian educational material is concerned. Although, the term transgender, which
is an umbrella term for people whose gender identity is different from the sex
assigned, at birth was coined in 1949 and was popularized in 1966 by Harry
Let us have a look at does Indian marriage law recognizes same-sex marriages?India being a secular country has established three separate statues to
recognize marriages among two Hindus, Muslims, and a statute that legalizes
marriage without reference to religion. The law which governs Hindu marriage is
the Hindu marriage act, 1955. Section 5 of the said Act contains conditions for
a valid Hindu marriage which says marriage may be solemnized between any two
Hindus if the following conditions are fulfilled.
If we notice there has been no mention that the parties solemnizing marriage
have to be a male and a female but they have added a stipulation in Section
5(1)(b) that the parties shall be fit for procreation of a child. I believe this
happened because when this act was being framed, framers did not anticipate that
anything like ‘transgender marriage' could happen at a later time.
Ceremonies and rituals of the said act are taken from Hindu shastras, etc and
there are shreds of evidence that Hindu mythology also recognizes transgender in
the form of Brihanala in the Mahabharata epic, Ardhnareshwar form of shiva, and
transgender sexual intercourse in the sculptures of Kama sutra.
Special Marriage Act which was enacted to provide a special form of marriage
irrespective of faith or religion parties follows has the same stipulation under
section 4 as it was under section 5(1)(b) of Hindu marriage act.
A marriage in Muslim law is a civil contract which legalizes sexual intercourse
and legitimate procreation of a child. The purpose of Muslim marriage is to
provide company to each other, procreate child and live peacefully and in
tranquility to the commandments of Allah. The whole purpose of child procreation
is defeated in transgender marriage. Further, we may conclude that neither Hindu
nor Muslim nor does special marriage law recognize Transgender marriage.
Statistics of public opinion 2019 poll stated that only 24% accept same-sex
marriage and 62% of people don't. Although there is an increase of 22 points
since 2014 when the first time this question was asked but people are still
reluctant to accept a transgender person. The decision of Section 377 was taken
considering the international perspective of Canada, UK, US, etc but the irony
is the US itself is struggling to pass equality act prohibiting discrimination
based on gender identity and sexual orientation in its parliament.
Scrapping Section 377 was an appreciable step towards homosexuality recognition
with this decision, a lot of people are coming out as trans embracing their
individuality but at the same time, we still need to bridge the gap of homo and
heterosexuality. Recently, Noida Metro Rail Corporation (NMRC) renamed Noida's
sector 50 as Rainbow station to honor the Trans community. The month of June is
celebrated as Pride month mainly in the US to promote equality, visibility to
the LGBTQ+ community. Where India is adopting foreign festivals and days, pride
month shall also be celebrating with the same zeal and enthusiasm.
A movie like Shubh Mangal Zada Savdhan focusing on same-sex marriage is again an
appreciating step to educate citizens about same-sex marriage but the reality
hit us hard as there was no real transgender casts the same as in the case of
Laxmi bomb or other movies of a similar genre, where the lead is a transgender
but there is no place for a real trans. In the future, maybe India will be ready
to accept transgender marriage but not today. India requires more concrete
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