File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Transgender Legal Marriages: In Respect To Indian Society

"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[1] 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[2], 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 happened.

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[3] 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 foundation.

The NALSA ruling[4], the K.S. Puttuswamy Case[5](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 legalized.

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.

Conclusion
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 compassionate way.

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[6]. 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[7].

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.

End-Notes:
  1. National Legal Services Authority v. Union of India, (2014) 5 SCC 438
  2. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
  3. Arun Kumar and Another v. Inspector General of Registration and Ors. WP(MD)No.4125 of 2019
  4. Supra note 4
  5. K.S. Puttaswamy, J. v. Union of India, (2017) 10 SCC 1
  6. 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 partners.
  7. (2019) 6.1 IJLPP 1 The Transgender Persons (Protection of Rights) Bill 2019 Divergent

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage

Titile

It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Privatisation Of Government Sector

Titile

Privatization of presidency Sector Although in today's time most of the services provided in ou...

Child Custody And Support

Titile

When parents divorce or separate legally, the custody of their children is often a contentious ...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly