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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 Benjamin.

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 steps.

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