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POSITION AND IDENTITY OF TRANSGENDER
UNDER FAMILY LAW IN INDIA
SUBMITTED TO:
Prof. Prama Mukhopadhya
Family Law I
SUBMITTED BY:
Shriya Tandon
21011557
BCOM LLB
Section B
2nd year, 2nd semester
Total Word Count: 2998
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POSITION AND IDENTITY OF TRANSGENDER
UNDER FAMILY LAW IN INDIA
SUBMITTED TO:
Prof. Prama Mukhopadhya Family Law I
SUBMITTED BY:
Shriya Tandon 21011557 BCOM LLB Section B 2 nd^ year, 2nd^ semester Total Word Count: 2998
Table of Contents
- Introduction
- Who are Transgenders?
- Transsexuals
- The Third Gender
- Identities
- Position Under Marital Laws
- Hindu Marriage Act,
- Muslim Marital Laws (Mohammedan Law)
- Special Marriage Act,
- Position Under Adoption Laws
- Hindu Adoptions and Maintenance Act
- Juvenile Justice Act
- Conclusion
Who are Transgenders? The Supreme Court in NALSA v. Union of India, separated the transgender population in India into two groups—transsexuals and ‘the third gender.’ The case enlarged the definition of sex under the Constitution while addressing whether people had the right to be recognized according to their perceived gender. It was decided that because gender expression reflects a person’s inherent identity and character, the right of transgender people to choose their own gender identity was also affirmed under Article 19(1)(a) of the Constitution. Finally, the court noted that the Constitution’s provisions are gender-neutral and cover transgender people under its protection. They are not restricted to precise definitions of man or woman. The federal and state governments were ordered to recognize transgender people’s gender identities, whether they identify as male, female, or third gender^1.
Transsexuals
Transsexuals consists primarily of people who want to permanently transition to the gender with which they identify. They make up a segment of the transgender population who are extremely cognizant of the discrepancy between their gender identity and their biological sex. Additionally, they are confident that they fall under the gender opposite of their assigned sex (on the gender continuum). Sex Reassignment Surgery (SRS) is the treatment that helps these individuals transition into their self-identified gender. It may also include other medical procedures like hormonal therapy^2. After the NALSA judgment, a person undergoing SRS can officially be acknowledged as either a man or a woman and have their gender designation changed on all official documents. Affidavits swearing to a change in gender identity must be signed as part of the procedure. Once it has been signed and approved by a judicial magistrate, it then must be announced in (^1) Karan Gulati and Tushar Anand, ‘Inheritance rights of transgender persons in India’ (2021) NIPFP Working Paper Series 350/2021, 6 https://www.law.ox.ac.uk/sites/default/files/migrated/oscola_4th_edn_hart_2012.pdf accessed 22 April 2023 (^2) Kashish Makkar, ‘Transgenders: Identity and Position in the Family Law in India’ (2018) 5(1) NLUJ Law Review http://nlujodhpur.ac.in/uploads/5(1)%20NLUJ%20Law%20Review%2054%20(2018).pdf accessed 20 April 2023
two newspapers. Consequently, no one holds the right to object to the modification of all or any of the documentation.
The Third Gender
The third gender consists of people who disagree with both male and female gender categorizations as normative. The idea of a ‘third gender’ has existed for millennia in India in a variety of cultural, religious, and historical contexts. Due to their behaviors, traits, and modes of expression, these third genders have developed a distinct identity in the Indian subcontinent. As a result, this category includes a diverse range of identities (Hijras, Eunuchs, Kothis, Jogas/Jogappas, Aravanis, and Shiv-Shaktis), traditions, and experiences relating to transgender. These identities have been accepted by the Apex Court as belonging to the third gender, giving their gender identification legal support^3.
Identities
In NALSA v. UOI^4 , the Supreme Court laid out a brief analysis of the wide range of transgender identities (mentioned under the third gender) (and their customs) in India^5 : Hijras: Biological men who choose to reject their ‘masculine’ identity and instead identify as either women, ‘not-men,’ ‘in-between man and woman,’ or ‘neither man nor woman.’ Hijras have a rich heritage and culture and deep social ties that are formalized through the rite of ‘reet’ (becoming a member of the Hijra society). Hijras earn money by performing their customary work, such as ‘badhai’ (clapping their hands and soliciting alms), blessing newborn children, or dancing at religious events. Eunuch: Denotes an emasculated male. When an individual’s genitalia are determined to be ambiguously male-looking at birth, the child who had previously been classified as a male is reclassified as intesexexd-as a Hijra. (^3) ibid 61. (^4) National Legal Services Authority Vs. Union of India [2014] 5 SCC 438, [2014] 1 SCC OnLine 439. (^5) ibid [44].
Hindu Marriage Act, 1955
Transsexuals The requirements for a Hindu marriage are outlined in Section 5 of the HMA. The marriage of two Hindus, one of whom may be referred to as the bride and the other as the bridegroom, can be solemnized if subsections (iii), (iv), and (v) of the section do not forbid it^6. This implies that transsexual individuals, who have had their sex officially reassigned in all their legal documentation and who are able to identify themselves as either female or male, i.e., the bride or the bridegroom, can get their marriage recognized by the law. Such a marriage cannot be contested by a third party because only the parties to the marriage may file a petition for its nullity or divorce^7. The Third Gender Under Section 5 of this Act, only the union between a bride and a bridegroom is acknowledged as legitimate^8. Here we can see that gender-specific terminology such as ‘bride’ and ‘bridegroom’ are used. It inevitably refers to ‘woman’ and ‘man’ on the day of their marriage. Third-gender marriages are, therefore, not accepted nor recognized^9. Arunkumar v. The Inspector General of Registration Mr. Arunkumar (male) married Ms. Srija (a transwoman) in a temple in Tamil Nadu. The marriage was performed according to Hindu rites and customs and certified as validly performed by the administrative officer of the village. The temple authorities though permitted the performance of the marriage declined to vouch for it. The couple was required to register their marriage under Rule 5(1)(a) of the Tamil Nadu Registration of Marriages Rules. When they approached the Joint Registrar for the same, he opposed to registering it. The couple met (^6) The Hindu Marriage Act 1955, s. 5 (^7) Makkar (n 2) 6 6. (^8) HMA 1955, s. 5 (^9) Makkar (n 2) 68 - 69.
with a similar refusal when they appealed their decision before the Registrar of the District. They challenged this decision in the High Court of Madras^10. The respondents argued that Section 7 of the Tamil Registration of Marriages Act confers power to the Registrar of Marriages to refuse registration, if he is satisfied that the marriage between the parties was not performed in accordance with the personal laws of the parties, any custom or usage or tradition. As per Section 7(1)(c) of the Act, if the documents tendered before the Registrar of Marriages do not prove the marital status of the parties, he can refuse to register the marriage. In this case, the authorities of the temple, where the marriage between the parties was solemnized, had not issued any certificate indicating the performance of the marriage^11. Despite being assigned a female at birth, Srija was registered as a male at her school and had a male name. Her identification was listed as transgender on her Aadhar card. It might be argued that although her gender was listed on her birth certificate as female, she was socially viewed as male. As a result, even if she married a man and took a female name, the problem became one of transgender marriage rather than a social heteronormative one^12. As per the reference made to Oxford Advance Learner’s Dictionary of Current English, the term ‘bride’ can only refer to a ‘Woman on her wedding day.’ Following this, it was argued that because Srija is a transgender and not a woman, the statutory requirement set out in the said section has not been fulfilled. The main issue on the court’s agenda was whether Sreeja, a transwoman, qualified as a bride under Section 5 of the HMA. The Court ruled that the term ‘bride’ used in Section 5 of the HMA must include a transwoman in its definition in addition to women. A transgender or intersex individual who describes themselves as a woman would also be included. A person who falls under the Third Category (^10) Arunkumar Vs. Respondent: The Inspector General of Registration [2019] SCC OnLine Mad 8779, [2019] 1 SCC OnLine 517. (^11) ibid [3]. (^12) Jay Gajbhiye, ‘The Significance of Arunkumar V. Inspector General of Registration’s Case in the Indian Society’ (2020) 3(5) IJLMH <https://www.ijlmh.com/wp-content/uploads/The-Significance-of-Arun-kumar-V.- Inspector-General-of-Registrations-Case-in-the-Indian-Society.pdf> accessed 24 April 2023
The Third Gender A prerequisite for a civil marriage is that the parties must be of opposing sexes, not a man and a woman. Therefore, a union involving an individual of the third gender with a heterosexual is legal if the third gender party marries a person of the opposite sex. Thus, under Mohammedan Law, nuptials between two individuals who identify as third gender but are allocated to separate sexes are permitted. If they constitute a heterosexual pair, a third-gender individual is also permitted to wed a cisgender person. This was especially derived from the scriptural interpretation of Mohammedan law in India. There haven’t been any known disputes with this interpretation yet^16.
Special Marriage Act, 1954
Transsexuals According to Section 4 of the Act, unless sub-section (d) forbids it, any male over the age of 21 and any female over the age of 18 may solemnize their marriage. Because this Act is extremely akin to HMA, a transsexual person’s marriage to a person of the opposite sex can be legally recognized and registered under this Act. The Third Gender According to the Act, a ‘male’ and a ‘female,’ among other requirements, are necessary to register a marriage^17 , much like the HMA. Therefore, marriages between ‘third gender’ partners cannot be registered under SMA. (^16) ibid 69. (^17) SMA 1954, s. 4
Position Under Adoption Laws Adoption is a relationship accepted as falling under the definition of a family, therefore, making it a component of the fundamental right to have a family. The Hindu Adoptions and Maintenance Act (HAMA), 1956, and Juvenile Justice (Care and Protection of Children) Act, 2000, are two pieces of personal and general legislation that govern adoption in India. Previously, only Hindus were permitted to serve as the adopted child’s legal parents under personal laws. However, people of any religious affiliation are now able to adopt a child owing to the Juvenile Justice Act, which functions as a secular legislation^18.
Hindu Adoptions and Maintenance Act
Transsexuals If Hindu transsexuals who underwent SRS meet the standards for adoption under Sections 7 & 8 of the Act for males and females, respectively, they are qualified to adopt a child legally. Under this Act, adoptions are excluded from any formal inspection, and transsexuals are legally allowed to adopt children from their biological parents. They could, however, be subjected to a higher level of scrutiny if the natural guardians are not present during the adoption procedure. Therefore, they must demonstrate to the court that they are qualified to adopt under Sections 7 or 8 of the HAMA^19. The Third Gender Third genders are not covered by the HAMA’s application since the Act only acknowledge adoptions as legal if they are undertaken by a male^20 or female^21. Additionally, following (^18) Makkar (n 2) 70. (^19) Makkar (n 2) 68. (^20) The Hindu Adoptions and Maintenance Act 1956, s. 7 (^21) HAMA 1956, s. 8
Conclusion In India, there is an unfair disparity in the treatment of transgender individuals. They are constantly the target of discrimination on the part of society, conventional norms, and even laws. Even basic rights are not guaranteed to them. Following the NALSA v. UOI, the legislature passed The Transgender Persons (Protection of Rights) Act, 2019, which provides legal protection for transgender persons and acknowledges them as a third gender. The situation is more complicated, though, when it comes to family laws. Marriage laws in India define marriage as the union between a male and a female. The definition disallows same-sex unions, and consequently, unions between transgender people, unless they are of the opposing sexes. As a result, transgender people might be unable to enter legally recognized marriages. Adoption by transgender people is also not explicitly outlined in India’s adoption laws. However, the Supreme Court has ruled that transgender people have the legal right to adopt children into their care and start a family. Inclusionary legislation is necessary to guarantee fundamental rights to society’s weaker and marginalized groups, enabling them to live their lives with dignity and freedom, which could cause a shift in the public’s patriarchal social normative views. Overall, there is still a long way to go before transgender people in India have full and equal rights under family laws, although the country’s legal system does offer them some protections.