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Transgender's identity & Position in Family Law

Johann Wolfgang von Goethe said, "I am who I am, so I accept who I am." In the same way, philosophers held, "No one will escape their individuality."[1]

Self-expression is one of the most significant and necessary aspects of a person's existence.

The term gender would generally denote to something of mere sexual identity of a person. Physically, ever since, people identified themselves with either of the two genders that are assigned to them at birth i.e., male and female. But later on, people started identifying themselves to be someone outside the ambit of traditional classification, based on their inner sexual feelings rather physical attributes.

It was not that long that an individual began to perceive oneself to be a someone different who isn't the part of classical gender classification. We term it as cisgender. We are prejudiced by the messages we receive from our social surroundings about what is acceptable and permissible for everyone to either do or not to do, be and perform based on the gender with which we identify ourselves.

The term cisgender refers to being what we think of as normatively gendered. Man or woman, masculine or feminine, and aligned with the assignment of sex that we were given at birth, taking into consideration the physical appearances.

The abbreviation 'LGBTQ' has so many interpretations. One of the prominent ones is - Lesbian, Gay, Bisexual, Transgender and Q may be assigned to Queer sometimes and is read for Questioning.

The word lesbian is an expressive term which is used to refer women who endures oneself with other women in physical, sexual, romantic, and affectional attraction.

Gay is an adjective that is being used to describe people who endures for above mentioned attributes with people of same sex and gender.

People who looks on to both men and women for fulfillment of their various feelings of attraction are generally called as bisexual.

Transgender is a person who identifies himself or herself with the opposite gender than what is usually assigned to them at birth according to their physical appearance i.e., not identifying with culturally conventional gender roles and categories of male or female.

The term 'transgender' is derived from Latin words 'trans' which means 'across/beyond'. Whereas, gender is a compound word which denotes and divides people into several categories taking into consideration their physical attributes., according to the World Health Organisation, Gender refers to "the socially constructed features of women and men - such as norms, and roles and relationships of and between groups of women and men." Therefore, a transgender is an individual who is beyond the socially and culturally defined difference between men and women.

In India, there is a wide range of individualities related to transgender people, including Hijras, Aravanis, Kothis, Jogtis / Jogappas, Shiv Sakthis. In the past, they have received great esteem.

\Hijra is a Persian word deciphered as eunuch and is used as the common language of the transgender community in India. Kothi is used to play female roles in same-sex relationships, but not people who live in communities like Aravanis. Jogtis / Jogappas found in Maharashtra and Karnataka is male to female transgender persons who are dedicated to serving definite gods. Shiv Shakti's who are found Andhra Pradesh is a man who contemplates he is married to a god, especially Shiva. They usually toil as psychotherapists or astrologers.[2]

Rights of Transgenders in India

The Indian Constitution cherishes notions of justice-socially, economically and politically.
  1. Article 14 of the Indian constitution offers for right to equality.
  2. Prohibition of discrimination on the grounds of religion, caste, sex, place of birth and nationality is guaranteed by Article 15.
  3. Article 21 promises the right to privacy and personal dignity to all its citizens and
  4. Article 23 forbids human trafficking and other modes of forced labour.

Moreover, the Universal Declaration of Human Rights offers that all people, irrespective of sex, sexual orientation or gender distinctiveness, are entitled to enjoy the protections given for by international human rights law, as well as in respect of rights to life, security of person and secrecy, the right to be free from torment, uninformed arrest and detention, the right to be free from discrimination and the right to freedom of expression.

However, the sad truth is same that despite the presence of ample rights to protect and safeguard the human rights of transgenders both globally and in the Constitution of India, they remain unenforced.

Problems faced by Transgenders:

They are often subjected to lot of discrimination and are jeopardized in almost every place. People though recognized themselves to be a part of transgender community, revolve round and round in the same fear of openly expressing one's sexual identity i.e., the sex that they identified themselves into apart from the conventional ones. In countries like India, religion and culture make it difficult for one to accept such people. Transgenders, commonly termed as Hijra's in India are prune to disrespect and abuse.

Prejudices of people make them to think that transgender people are different and odd. The very primary quandary that they face is from the circle of family, relatives, friends and colleagues. Starting with the family, having such member is considered as degrading their family status out in the society. They are ill-treated and get thrown out of their family. From there on, trans people begin to encounter several hurdles.

The educational institutions do not give them an admission into, no company offers them a job, and they find it very difficult to even find a residence for themselves. Families view homosexuality as shameful. People in the epicene community are beheld down upon all the time. Mere involuntary sexual orientation should not decide their fate and force them to travel a long road of discrimination and hatred throughout their life. Being a transgender is not a 'problem', nor is it a 'choice' as such.

So, when normal men and woman are given or conferred right to live harmoniously with human dignity in the society, then why people of transgender community are discriminated?
Article 15 of the Indian Constitution ascertains that no person shall be discriminated based on their region, religion, caste, gender and so on. Hence the legislature and executive wings of the country must ensure the drafting and passing of a bill that would exclusively work for the protection of people of transgender community.

There are even several steps that had already been taken to ensure dignified living for LGBTQ.[3] Various state governments are providing them with reservations in educational institutions, at workplaces, and were also been given pensions. This is a major breakthrough. The honourable supreme court of India also have legalised the marriage of homo-sexual thus repealing the long-standing section 377 of the Indian Penal Code.

But this isn't sufficient. There are also several other issues that still remain unresolved. One such area that requires the attention is regarding the formation of personal laws that govern the matters of marriage, adoption, divorce, etc., among them.

Transgenders and Personal Laws:

The honorable Supreme Court of India have addressed several issues pertaining to the transgender community in National Legal Services Authority v Union of India[4] case. The learned judges ruled out that the people of transgender community must be recognized as a third gender in the traditional gender classification. The court also stated that they (trans) should enjoy all fundamental rights as every other citizen of this land would do and must be protected from several types of discrimination.

Justice K. S. Radhakrishnan, on behalf of the bench have ordered the state to recognize the right of transgenders to decide their personal identity. The bench asked the government to make certain specific benefits for them in areas of education and employment. The supreme court have also made it clear that anyone insisting any person to undergo the Sex Reassignment Surgery (SRS) for declaring one's gender identity is illegal and unethical.

The above case was a major break-through for people belonging to transgender community. Though it opened a gateway for recognition of their rights, the rigid Indian society is hastening this process. People do not accept them to be a part of the very society like they are. In this case, the apex court has divided the transgender community into two primary categories.

They are:
  1. Transsexuals

    The first grouping as listed out by the Supreme Court is normally referred to as transsexuals. It is essentially composed of those individuals who wish to go for a permanent transition of the gender that they identify themselves with. The term transsexual denoted to people who had undergone medical procedures, such as gender-affirming surgery, to match their gender individuality and physical appearances.

    They create a subset of the transgender community whose sense of variance between their gender identity and assigned sex is very strong. Moreover, they are firm that they belong to the gender opposite (on the gender spectrum) to their assigned sex. In NALSA judgement, the honourable Supreme Court recognised the constitutional right of the transsexual people to categorize with their transitioned identity, i.e., their gender identity in the first place.
  2. Third Gender

    The transgenders who discard both male and female as the normative gender categorizations constitute the subsequent sub-set of the transgender community. In the Indian subcontinent, these third genders have presumed a distinct identity due to their behaviour, characteristics, and appearance. Thus, this category is composed of a wide range of transgender-related personalities, cultures, and experiences.

    In India, traditionally and popularly, queer identities such as Hijras etc., are being recognised as third genders.

    Another notable case is Navtej Singh Johar v. Union of India[5] which abolished S. 377 of the Indian Penal Code[6] and paved way for legalizing sexual relationships between people of all genders. After this judgement, the resulting step for the community was to ask for a law that would allow them to enrol their marriage under the law, thereby authorizing the concept of third-gender marriages. However, that has not been the case yet.

Position Of Transgenders In Family Law:

The Madras High Court has delivered a landmark judgement in Arun Kumar and Another v. Inspector General of Registration and Ors case.[7]

The petitioner Arun Kumar has married a transwoman, namely Sreeja at a place of worship following the ceremonies and customs of Hindus on 31st October 2018. Later, both of them in pursuit of registration of their marriage have submitted several documents to the Tuticorin Joint registrar. But he refused to do so.

Therefore, the petitioners challenged the refusal of joint registrar before the District Registrar on 16th November 2018. The District Registrar has thus affirmed the decision of his subordinate on 28th December 2018. It is then that this case was brought to the Madras High Court.

  1. Given that Sreeja being a transwomen, does the term 'bride' as in Section 5 of the Hindu Marriage Act (HMA)[8] include transgender people or only women?
  2. Did the act of refusal of both Joint and District Registrars to enlist their marriage infringe his/her fundamental rights guaranteed under Article 14, 19(1) (a), 21 and 25 of the Constitution.

Contentions of the petitioner:
The petitioner has contended that the term bride in HMA has a broader scope and thus also include the transwomen in it. And, that both the Registrars have encroached on their basic fundamental rights by refusing to register their marriage.

Contentions of the Respondent:
The Government advocate for the State of Tamil Nadu has defended the decision of both Registrars on the below two ground:
  1. The first being that the Registrar according to the Tamil Nadu Registration of Marriage Act, 2009, can refuse/decline to enlist a marriage if he reasonably believes that the marriage was not performed under their personal law or custom. In the present case, he said, that the temple authorities did not affirm the happening of the marriage.
  2. The second ground is regarding the validity of such marriage under HMA. The council for state contended that the term 'bride' and 'bridegroom' were used in HMA just to express the minimum age that the parties must have. The council said that the meaning of 'bride' is a "woman on her wedding day".[9] As Sreeja is a transsexual and not a lady, she could not be a bride under the HMA. Therefore, this marriage was not solemnized according the provision of the HMA.

The Hon'ble Judges opined that both sex and gender are two different things and one cannot be substituted for the other. The court expressed that the marriage which is solemnized between a male and a transwomen, both following Hindu religion, is a valid marriage. The court on referring to the cases of NALSA v Union of India[10], Justice K. Puttaswamy v Union of India[11] and Navtej Sing Johar v Union of India[12] expressed that people who recognize themselves as transgenders have their own right to choose their self-recognized sex as adjudicated by the Supreme Court. Further, the court said that the term 'bride' in HMA must deciphered according to the needs of present society and it cannot be static.

Therefore, it also includes transwomen apart from the conventional gender. The Court at that point referred to Article 16 of the Universal Declaration of Human Rights, which incorporates the option to wed as common liberty just as Shafin Jahan v Asokan K.M. and Ors.[13] where one's preferred option to wed an individual was held to be fundamental to Article 21 of the Constitution of India.

The court thus said that the act of refusal to enlist their marriage by the Registrars amounts to the encroachment of the fundamental rights guaranteed to every individual by the constitution of India.

Applicability of personal laws to Trans people:

In light of the NALSA case, the applicability of existing personal laws to people of different religions needs to be discussed for both of the above classified divisions of transgenders.
  1. Marital laws

    1. Transsexuals:

      Every marriage act, be it the Hindu's, Muslim's, or the special marriage act, the pre-requisite for consideration of a marriage as legal, the primary pre-requisite is that the parties to the marriage must be of opposite sexes and should identify themselves as the bridegroom and bride i.e., male and female.

      With special reference to Mahomedan marriage, being a marriage of contractual nature, the primary aim of such marriage is for procreation and the legalizing of children.
      Therefore, a transsexual who have been operated via SRS can enter into a valid marriage in any of the personal laws. The general marital laws that would apply for any others would equally apply for them too.
    2. Third gender

      People belonging to third gender might have changed their mental perception of themselves as to into what gender they were born into biologically but their physical attributes remain the same. This lies as an impediment in case of third gender people. This is because, for a valid marriage to happen, there has to be two parties of opposite sex. The parties should be in a position to fulfill all their marital obligations and are expected to carry on the family lineage forward. Whereas, in case of people who recognized themselves as third gender are not capable of the same.
    But this is not the same for everyone. Not all transgenders would let themselves get recognized as third gender people legally. Hence, for those who have maintained their legal status the same as their assigned sex can marry someone from the opposite sex (opposite to their assigned sex) and get the marriage validated under any of the personal laws.
    Whereas, individuals who recognises them as Hijras and etc., do not intend to marry generally.

    Applicability of Hindu law:

    As per Section 5[14] of this Act, only a marriage of a bride and a bridegroom is valid and recognised. The terms "bride" and "bridegroom" are gendered terms. It necessarily translates to "woman" and "man" on their wedding day. Thus, it provides no recognition to marriages for the third gender.

    Muslim Marriage Act

    The essential that must be fulfilled under Muslim Law for a contract of marriage is that the parties to such contract should be of opposite sexes. Hence, if a third gender marries a person from opposite sex, the marriage is said to be valid. Therefore, two parties who belong to third gender, but have different assigned sexes could marry under Mohammedan Law.

    Special Marriage Act

    As in the case of the Hindu Marriage Act, the Special Marriage Act also requires a male and a female along with other conditions that are to be fulfilled in order to get the marriage registered. Therefore, in Special Marriage Act, there is no scope for the registration of the transgender's marriage.
  2. Adoption laws

    Personal laws pertaining to adoption only recognises Hindus as legal parents for the adopted child no other personal law recognises adoption. Later on, the Juvenile Justice (Care & Protection of Child) Act, 2000, was framed and this, acting as a secular legislation allows people of other religions too to adopt.

  1. Transsexuals

    Under HAMA:
    The Hindu Transsexual after getting their sex reassigned are eligible for adopting a child. For doing so, every individual who wish to adopt must fulfil the conditions of a valid adoption as mentioned in Section 7[15] and 8[16] of the HAMA.

    Under JJA:
    Section 41(6) [17] allows any person to adopt a child. Being a secular legislation , its open for people of every religion, and gender.
  2. Third Gender
    Under HAMA:
    The Section 7 & 8 of HAMA only recognises male and female as valid parties for adoption. Third genders are out of its purview.

    Under JJA:
    Section 41(6) of this Act is a path breaking reform that provides the right to any 'person' to adopt a child, and not a 'male' or 'female.' Additionally, it also confers the right on the third gender couple to raise a child (if they are recognised as a couple) since they can be classified as a childless couple under the provision.

Transgenders are a part of our society as we are. They needs to be respected and treated equally. The awareness and support for transgender community is increasing day by day and many countries by now have adopted several laws and policies that help in the empowerment of transgenders. It is the part of our culture to respect everyone.

Transgenders have been a part of our history too. But it is very recently that the governments at both state ad centre are recognising the repressions that this community has faced since ages and are bringing out measures to empower them. Supreme Court in various judgements have also stressed upon the point that the fundamental rights enshrined in the Constitution do also extend to them. Hence, it is not too late for the state to enact or amend the personal laws that would also recognise transgenders.

i.e., That is
LGBTQ Lesbian Gay Bisexual Transgender Queer
V Versus
IPC Indian Penal Code
HMA Hindu Marriage Act
HAMA Hindu Adoption and Maintenance Act
JJA Juvenile Justice (Care & Protection of Child) Act
& And
NALSA National Legal Services Authority
SRS Sex Reassignment Surgery
SCC Supreme Court Cases
Etc Et Cetera
S. Section
Ors Others

  1. Navtej Singh Johar v Union of India, (2018) 10 SCC 1
  2. Alizaa Zaidi, 'Transgender Community in India: Rights, Changes, and Challenges' (21 August, 2021) accessed 11 December 2021
  3. Mohd Aqib Aslam, The Position of India's Transgender - Third Gender, <> accessed 15 December 2021
  4. National Legal Service Authorities v. Union of India, (2014) 5 SCC 438
  5. Supra note 1
  6. Unnatural offences.-Whoever voluntarily has carnal inter�course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris�onment 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 offence described in this section.
  7. Arun Kumar and Another v. Inspector General of Registration and Ors. WP(MD)No.4125 of 2019
  8. Conditions for a Hindu marriage.-A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
    1. neither party has a spouse living at the time of the marriage;
    2. at the time of the marriage, neither party:
      1. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
      2. 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; or
      3. has been subject to recurrent attacks of insanity;
    3. the bridegroom has completed the age of 2 [twenty-one years] and the bride, the age of 3 [eighteen years] at the time of the marriage;
    4. the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
    5. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
  9. Oxford Advances Learner's Dictionary of Current English
  10. Supra note 3
  11. K.S. Puttaswamy, J. v. Union of India, (2017) 10 SCC 1
  12. Supra note 1
  13. Shafin Jahan vs. Asokan K.M. and Ors ( (2018) 16 SCC 368)
  14. Supra note 7
  15. Capacity of a male Hindu to take in adoption.―Any male Hindu who is of sound mind and is not a minor has the capacity to takes on or a daughter in adoption: Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the word or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
  16. Capacity of a female Hindu to take in adoption.―Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption: Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.]
  17. Registration of child care institutions:
    The period of registration of an institution shall be five years, and it shall be subject to renewal in every five years.

Written By:
  1. Sai Ram Vinay Godithi
  2. Joshikumar P

Suggested Articles on Laws Related to Transgender:

  1. The Contentious Transgender Act, 2019
  2. Transgender And Rights Of Transgender
  3. Recognizing Transgender Rapes in India
  4. Rights Of Transgender Under The Indian Legal System
  5. Discrimination and Dilemma of Transgender People
  6. Transgender Rights Regime In India
  7. Discriminatory Penal Laws For Transgender Community
  8. Property Rights Of Transgender Community In India
  9. The Transgender Persons (Protection Of Rights) Bill, 2019
  10. Transgender Persons (Protection of Rights) Act, 2019
  11. The Socio-Legal Position Of India's Transgender (Third Gender)
  12. International Transgender Parenting Rights and How India Lags behind it
  13. Supreme Court Of India Granted Legal Recognition To Transgender
  14. Is India Ready to accept Transgender Marriage with reference to Marriage related Laws in India?
  15. Analysis of Transgender Persons (Protection of Rights) Bill, 2019
  16. The Transgender Community in India: Who are they?

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