This article deals with the status quo of the
transgender community in India and laws governing their marriage as compared to
those in other countries.
A transgender person is identified as a person whose sense of personal
identity and gender does not correspond with their birth sex.¯ Basically,
transgender persons are those who do not identify with the gender they were
assumed to be at birth. A transgender is not limited to the idea of only sexual
preferences, but it includes the whole spectrum of gender. In most countries,
they are recognized as the third gender'.
Historically, the transgender community has been neglected. However, in India,
the recognition of transgender people takes us as far as 3000 years ago. They
also find their mention in the holy Vedas. Today, due to the rise in
individuality and the express freedom given on expression, the rights of
transgender people have been recognized and respected more than ever before in
history. Some steps have been taken in the positive direction to ensure the
basic rights of these people, who are often stereotyped by the society.
Recently, 13 transgender people were recruited as police officers in the state
of Chhatisgarh. Back in October 2017, the district administration of Bhopal
inaugurated a public toilet exclusively for transgender people.
Gradually, transgender people are being recognized as members of the society at
an equal footing. The Supreme Court has, through its various landmark judgements
established that recognition of transgender rights is important. The most
significant judgement is the NALSA v. Union of India judgement, in which the
Supreme Court affirmed the position of transgender people as legally being the
third gender¯ and therefore, they are entitled to all fundamental rights
guaranteed by the Constitution.
Another notable case is Navtej Singh Johar v. Union of India which abolished
S. 377 of the Indian Penal Code and paved way for legalizing sexual
relationships between people of all genders. After this judgement, the next step
for the community was to ask for a law that would allow them to register their
marriage under the law, thereby legalizing the concept of third-gender
marriages. However, that has not been the case yet.
Problems Faced by the Trans Community
Transgenders have been forced to face a horrendous journey in their life for
decades and decades. The stigma attached to sexual orientation and gender
identity that fall outside the expected heterosexual, nontransgender norm
relegates many Transgender people to the margins of society.
marginalization has led to them being grossly discriminated against, marginalised to the extent of having little control over their lives, have not
been able to have equal access to resources and opportunities such as in
employment, education, healthcare, housing and so on. They have been socially
excluded and continuously stigmatized by society time and again to the point of
predominantly having a low self-esteem and other mental health problems because
of having to face racism, sexism, poverty alongside homophobia or transphobia.
They lack even the most basic facilities such as separate toilets, making them
prone to sexual assault and harassment and are regular victims of hate crimes
and violence. Transgenders are also rejected by their own families, who feel
abashed by the birth of an intersex child, and parents eventually force them
these children to undergo sex reassignment surgery (SRS) or intersex genital
mutilation (IGM) without providing an opportunity to such children to understand
and identify their gender and sexuality. The trans community has been oppressed
beyond thought and an attempt must be made to bring them back from the margins
to the mainstream society.
The Indian Constitution enshrines notions of justice- socially, economically and
politically. Article 14 of the constitution provides for right to equality,
Article 15 prohibits discrimination on the ground of religion, race,
nationality, gender or place of birth, Article 21 guarantees the right to
privacy and personal dignity to all citizens and Article 23 prohibits human
trafficking and other forms of forced labour.
Moreover, the Universal
Declaration of Human Rights provides that all people, irrespective of sex,
sexual orientation or gender identity, are entitled to enjoy the protections
provided for by international human rights law, including in respect of rights
to life, security of person and privacy, the right to be free from torture,
arbitrary arrest and detention, the right to be free from discrimination and the
right to freedom of expression, association and peaceful assembly. However,
the sad truth remains that despite the existence of ample rights to safeguard
the human rights of transgenders both internationally and in the Constitution of
India, they remain unenforced.
An Overview of Transgender Marriage in India
In a landmark judgement in 2019, the Madras High Court interpreted the word bride¯
under S. 5 of the Hindu Marriage Act and held that it includes transgender
persons as well. Hitherto, a bride¯ was a woman that too only on the day of
her wedding. But with this judgement, a new ground has been established. The
Madras HC relied on the three most important judgements for LGBTQ+ rights: the
NALSA judgement, the K.S. Puttuswamy Case
 (privacy under A. 21) and the Navtej Singh Johar judgement
., The Court opined that they were only
stating the obvious, and that they did not interpret anything additionally,
since the right to marriage for transgender persons has always been present in
this statute. This interpretation has paved way for the transgender community to
lobby for their marriage rights.
Despite this judgement, the government has included no provisions related to
marriage of transgenders in the 2019 Transgender Persons (Protection of Rights)
Bill that has been introduced by it as a protection mechanism of the trans
community and aiming to pave the way for a more progressive legal system.
The Union Government has clarified its stance regarding LGBTQ+ marriages. In a
2021 case before the Delhi High Court, the government has said that the
judgements of the Supreme Court in Navtej Singh Johar and K.S. Puttuswamy case
do not mean that homosexuality has been legalized, contrary to popular
belief. The Government has said that these judgements have only
de-criminalized a particular human behavior. It also pleaded that it is in the
legitimate interests of the state to limit marriages of same-sex individuals, as
the conduct of marriage should be in the most natural way¯, implying that
marriages should result in the procreation of a child. The Union also added that
Courts cannot give legal recognition to LGBTQ+ marriages when the statute does
not provide for it.
This takes us to the existing provisions and whether there is any scope of
amendment in these existing provisions to account for transgender marriages. S.
5 of the Hindu Marriage Act mentions several conditions for a valid marriage
under the law. One of these conditions is that the parties should not be within
the degrees of prohibited relationship unless the custom or usage governing each
of them permits of a marriage between the two¯.
The degree of prohibited
relationship¯ can be prima facie interpreted as a relationship that is not
approved or allowed by the caste, sect, community or society. If this was the
case, then it would've been easier to legalize same-sex and transgender
marriages since the Courts would interpret it liberally, and hold that LGBTQ+
relationships are not prohibited¯.
However that is not the case. Degree
of prohibited relationship¯ is defined under S. 3 (g) of the Act and mostly
refers to close relatives and lineal descendants. Since prohibited
relationship¯ is clearly defined, it cannot be interpreted liberally to
include marriages in the LGBTQ+ community.
S. 4 of the Special Marriage Act discusses the conditions for a valid marriage.
This Act was mainly enacted to give legal protection to inter-faith marriages if
they are not recognized under the respective marriage laws of that religion. S.
4 (b) (ii) mentions that neither party, though capable of giving a valid
consent, has been suffering from mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of children¯. This
provision also does not leave any scope for LGBTQ+ marriages, since it places a
condition that the parties should be fit for procreation, which is not always
possible in such marriages.
Therefore, the biggest challenge before the transgender community and the LGBTQ+
community in general is to secure marriage rights against the general notion of
marriages for procreation of a child. This can only be addressed by the society
accepting that marriages are not solely for raising children and families. The
problem is mainly the society's stigma regarding transgender persons, which has
hindered them from securing marriage rights. They however have advanced their
positions in the society due to the liberalization of society, but there is
still a long way to go.
Status of Transgender Marriage Laws in Different Countries
Transgender marriage cases were first discussed in the 1970 British decision
on Corbett v. Corbett. Here, a petition to legally annul a marriage was
filed after one of the spouses who were born male had undergone hormonal
treatment and sex reassignment surgery. The issues primarily involved
determining true sex¯ of the spouse and capacity to consummate the
marriage. It was held that consummating the marriage using an artificial
¯ constructed by a doctor could not be described as natural intercourse.
This ruling was further codified and sparked a huge debate for transgender
At present, the Gender Recognition Act of 2004 allows people to gain full
recognition of their acquired gender. This legal recognition enables people to
obtain a new birth certificate that shows their acquired gender enabling them to
adopt almost all of the legal rights which are afforded to that sex, including
equal marriage rights.
United States of America
In the USA, anyone can marry in any of the 50 states, regardless of their gender
and whether or not the officials in their state of residence recognise their
gender. It was in the landmark case of Obergefell v. Hodges, that the US
Supreme Court recognised the right of same-sex couples to marry. It was iterated
that merely decriminalizing the same-sex acts is not sufficient, legal
recognition of same-sex relationships as heterosexual unions is equally
Quilter v Attorney-General (1994) is a landmark where New Zealand denied the
right of marriage to same-sex couples. However, subsequent legislations did not
comply with this stance. The Civil Union Act 2004, legalised civil
unions for both same-sex and opposite-sex couples, where couples had been
granted several rights including those of marriage.
Currently, New Zealand is one of the most liberal countries in the world when it
comes to the rights of the LGBT community. Trans people have the same rights as
the general population and marriage for them has been legal ever since 19 August
2013, after the passing of a legislation allowing the same.
LGBT rights including that of transgender marriages are not recognised in Saudi
Arabia and the community faces a lot of social as well as legal challenges in
the country. Governed by extremely conversative Muslim ideologies, Saudi Laws
recognises homosexuality and being a transgender as an immoral and indecent
activity. Therefore, this is criminalised with severe punishments up to that of
the death penalty.
South Africa is a prime example of how one country that considered LGBTQ
relationships a taboo changed its stance and formally enacted a legislation to
give marriage rights to all people irrespective of their gender. For this, the
basic necessary condition of procreation was held discriminatory. In the case
of Minister of Home Affairs v. Fourie, the Constitutional Court of South
Africa held that the condition of procreation excludes people that are not
heterosexuals, and enforces that they are not normal. It also means that such
people are not at an equal footing with the heterosexuals, and thus it is
discriminatory and against the provisions of the Constitution. The Court held
that there is much more to relationships than procreation, and that is love,
which cannot be determined by the sex of the parties. Consequently, in 2006 the
National Assembly passed a law allowing same-sex couples to legally solemnise
Statutory changes that must be incorporated to concretely decide on the rights
of the transgender community in relation to marriage are as follows:
- The Special Marriage Act, 1954 has currently been drafted in a way to
allow the marriage of only heterosexuals under it which seems to be
violative of Article 15 of the Constitution. It must be read down by the
courts to permit same-sex couples to marry under it.
- If not so, the Transgender Persons (Protection of Rights) Bill 2019,
should deal with the question of marriage, partnership, adoption, divorce,
custody of child, succession and inheritance conclusively.
- Marriage should be defined as the legal union of a man with a woman, a
man with another man, a woman with another woman, a transgender with another
transgender or a transgender with a man or a woman. Also, their union
without marriage should also be legally recognized as partnership under the
- The Act must be specifically provided that the religious or customary
practices are unable to prohibit the occurrence of such marriages. Moreover,
adequate police protection must be granted when they are being solemnized if
- Transgender couples must also explicitly be given the legal right to
adopt a child without their sexual orientation being a hindrance in the
- Rights of divorce, custody of child, succession and inheritance must be
addressed alongside the provisions for right of marriage.
Transgenders are a part of our society and the issues faced by them are
countless. However, despite the progressive judgements by the Hon'ble courts,
the transgender community in India is still oppressed and does not find
sufficient protection under the statutes. The current laws relating to
transgender marriages, both in personal laws and ones especially designed for
them such as the 2019 bill seem to be grossly inadequate in providing proper
inclusive definitions and addressing the issues faced by them in a humane
India is a signatory to the Yogyakarta Principles, principle 24(E) of which
encourages states to recognise same-sex marriage and accord it equal status to
different-sex marriage, which, though non-enforceable, is a progressive path for
the country to follow. It is the duty of the government to empathise with
the problems of this oppressed community, grant them the rights they deserve,
and articulate a comprehensive legislation that clearly outlines the
governmental position on transgender marriage and their rights as partners and
spouses. There exists an urgent need for the government to clarity on this issue
to allow for the formation of a coherent policy framework.
The transgender community deserves a heartfelt apology from the society for the
way they have been mistreated and the delay they have had to suffer in obtaining
a redressal for all that they have suffered. They must not be subject to more of
this ostracism owing to the majoritarian norm and should be granted the
Fundamental Rights that they have been guaranteed under the constitution of
- Oxford English Dictionary (Online Ed)
- Serena Nanda, Gender Diversity (2014, ISBN 147861546X), p. 28
- National Legal Services Authority v. Union of India, (2014) 5 SCC 438
- Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
- 2018 IJCRT | Volume 6, Issue 1 January 2018 Pg 6
- Arun Kumar and Another v. Inspector General of Registration and Ors.
WP(MD)No.4125 of 2019
- Supra note 4
- K.S. Puttaswamy, J. v. Union of India, (2017) 10 SCC 1
- Supra note 5
- Devika Sharma, https://www.scconline.com/blog/post/2019/04/25/madras-hc-transgender-female-is-a-bride-under-hindu-marriage-act-no-impediment-in-registration-of-transgenders-marriage/
- Corbett v. Corbett , 2 All ER 33
- 2015 SCC OnLine US SC 6 : 192 L.Ed.2d 609 : 576 US _ (2015), Director,
Ohio Department of Health, et al.
- CNLU LJ (9)  158 Legal Recognition of Same-Sex Marriage Rights in
India by Shivam Garg.
-  ZACC 19
- Yogyakarta Principles, Principle 24 provides for: (E) Take all necessary
legislative, administrative and other measures to ensure that in States that
recognise same-sex marriages or registered partnerships, any entitlement,
privilege, obligation or benefit available to different-sex married or
registered partners is equally available to same-sex married or registered
(F) Take all necessary legislative, administrative and other measures to
ensure that any obligation, entitlement, privilege, obligation or benefit
available to different-sex unmarried partners is equally available to
same-sex unmarried partners'
- (2019) 6.1 IJLPP 1 The Transgender Persons (Protection of Rights) Bill
2019 Divergent Interpretations and Subsequent Policy Implications by
Abhimanini Sawhney and Sara Grover
- Trisha Agarwala, 4th Year Students of UPES, Dehradun and
- Surbhit Shrivastava, 4th Year Students of UPES, Dehradun.