"A person whose sense of personal identification and gender does not
correlate with their natal sex" is defined as a transgender person. People who
identify as transgender often do not identify with the gender they were expected
to be at birth. A transgender person encompasses the entire gender range and is
not just defined by their sexual preferences. They are regarded as the "third
gender" in the majority of nations.
The transgender population has always received little attention. The acceptance
of transgender persons, however, dates back to at least 3000 years in India.
They are also mentioned in the revered Vedas. Today, more than ever before in
history, transgender people's rights are acknowledged and accepted due to the
increase of uniqueness and the explicit freedom granted on expression. To
protect these people's fundamental rights, who are frequently stigmatized by
society, some beneficial efforts have been done.
Transgender persons are becoming accepted into society on an equal basis
gradually. The Supreme Court has underlined the significance of transgender
rights recognition via its several historic rulings. The Supreme Court's ruling
in NALSA v. Union of India that transgender individuals are constitutionally
considered "the third gender" and are thus entitled to all fundamental rights
protected by the Constitution is the most important decision.
Another significant case was Navtej Singh Johar v. Union of India, which led
to the repeal of S. 377 of the Indian Penal Code and the legalization of
intergender relationships. Following this ruling, the community's next move was
to request a law that would enable them to legally register their marriage,
making the idea of third-gender weddings legitimate. But thus yet, it hasn't
An Overview Of Transgender Marriage In India
The Madras High Court construed the term "bride" under Section 5 of the Hindu
Marriage Act and found that it also encompasses transgender people in a landmark
decision rendered in 2019. Until recently, a woman was only considered a
"bride" on the day of her wedding. However, this decision has created a new
The NALSA ruling, the K.S. Puttuswamy Case(privacy under A. 21), and the
Navtej Singh Johar ruling are the three most significant rulings concerning
LGBTQ+ rights that the Madras High Court relied on. The Court stated that as the
right to marriage for transgender people has always been there in this
legislation, they were only stating the obvious and did not add any new
interpretations. The transgender community has been able to advocate for
marriage equality because to this understanding.
In spite of this ruling, the government's 2019 Transgender Persons (Protection
of Rights) Bill, which it proposed as a safeguard for the trans community and to
pave the path for a more progressive legal system, has no provisions pertaining
to the marriage of transgender people.
The Union Government has made clear its position on weddings for LGBTQ+ people.
Contrary to common assumption, the government asserted in a 2021 case before the
Delhi High Court that the Supreme Court's rulings in the Navtej Singh Johar
and K.S. Puttuswamy cases
do not indicate that homosexuality has been
According to the government, these rulings simply decriminalized a specific type
of human conduct. Additionally, it said that it is in the state's best interests
to restrict same-sex unions since marriage should only take place in the
"natural way," which implies that it should result in childbirth. The Union
further stated that where the law does not provide for it, courts cannot legally
recognize marriages between LGBTQ+ people.
This brings us to the current rules and asks if they may be changed to take into
consideration weddings between transgender people. A legitimate marriage must
meet a number of requirements, as stated in S.5 of the Hindu Marriage Act. The
partners should not be "within the degrees of banned relationship unless the
tradition or usage governing either of them admits of a marriage between the
two," is one of these requirements.
First and foremost, a connection that is not sanctioned or permitted by the
caste, sect, community, or society might be considered a "degree of banned
relationship." If this were the case, same-sex and transgender weddings would
have been easier to legalize since the courts would interpret it broadly and
rule that LGBTQ+ partnerships are not "prohibited."
That is not the case, though. According to S. 3(g) of the Act, "degree of
forbidden relationship" primarily refers to blood relatives and lineal
descendants. The term "prohibited relationship" cannot be broadly interpreted to
embrace weddings in the LGBTQ+ community because it is specifically defined.
The requirements for a legitimate marriage are covered in S.4 of the Special
Marriage Act. This Act was primarily passed to provide legal protection for
interfaith unions that are not recognized by the relevant religion's marriage
rules. According to S. 4(b)(ii), "neither party has been suffering from a mental
condition of such a nature or to such an extent as to be unfit for marriage and
the propagation of children, though capable of providing a legal consent." Due
to the need that the parties be capable of procreation, which is not always
achievable in such weddings, this rule also leaves no room for LGBTQ+ marriages.
Therefore, securing marriage rights in opposition to the widespread belief that
weddings are solely for the purpose of having children is the largest difficulty
for the transgender community and the LGBTQ+ community as a whole. Only if
society recognizes that marriages are for more than just starting families and
raising kids will this issue be solved. The biggest issue is the stigma that
transgender people face in society, which prevents them from obtaining marital
privileges. However, because of the liberalization of society, they have risen
in social standing, but there is still a long way to go.
Our culture includes transgender people, and they deal with a wide variety of
problems. Although the Hon'ble Courts have rendered progressive rulings, the
transgender population in India continues to face discrimination and lacks
adequate legal protection. The present rules governing transgender weddings,
including both general laws and those created specifically for them, like the
2019 bill, appear to be woefully insufficient in terms of giving accurate
inclusive definitions and addressing the problems experienced by them in a
The Yogyakarta Principles, of which India is a member, encourage states to
recognize same-sex marriage and give it equal status to different-sex marriage.
Although this policy is not binding, it represents a step forward for the
nation. The government has a responsibility to understand the issues that
this marginalized minority faces, to accord them the rights they are due, and to
formulate comprehensive legislation that explains the government's view on
transgender marriage and their rights as partners and spouses. To enable the
creation of a cogent policy framework, the government urgently needs to provide
clarification on this matter.
The transgender community deserves a sincere apology from society for the way
they have been treated unfairly and for the hardships they have had in getting
justice for their suffering. Due to the majoritarian rule, they must not
experience this exclusion any more, and they should be given the fundamental
rights that are stipulated in the Indian Constitution.
- National Legal Services Authority v. Union of India, (2014) 5 SCC 438
- Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
- 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
- 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
- (2019) 6.1 IJLPP 1 The Transgender Persons (Protection of Rights) Bill