April 24, 2019:
Madras High Court has held that a person who is in the Third Category is entitled to remain beyond the duality of male/female or to opt to identify oneself as male or female.
A bench of Justice Swaminathan has passed the order in case titled Arunkumar vs The Inspector General of Registration on 22.04.2019.
Arunkumar got married to Srija on 31.10.2018 at Arulmighu Sankara Rameswara Temple, Tuticorin as per Hindu rites and customs. The village administrative officer has certified that this marriage was in fact performed and that it was not a bigamous one for either. The temple authorities though permitted the performance of the marriage declined to vouch for it. When the parties submitted a memorandum for registration of marriage under Rule 5 (1) (a) of the Tamil Nadu Registration of Marriages Rules in Form I before the authorities refused to register the same.
Ultimately, the couple approached the High Court wherein it observed “In the case on hand, the second petitioner herein has chosen to express her gender identity as that of a woman. As held by the Hon'ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self determination of the second petitioner herein”.
The High Court further observed “The expression “bride” occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning…………… Seen in the light of the march of law, the expression “bride' occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include within its meaning not only a woman but also a transwoman. It would also include an intersex person/transgender person who identifies herself as a woman. The only consideration is how the person perceives herself”.
It expressed its opinion as “The second petitioner appears to have been an intersex person at birth. In the affidavit filed in support of this writ petition, it has been mentioned that she was assigned as a female at birth. But, in the school records, the second petitioner has been described as a male by name Manthiramoorthy. In the Aadhar Card, her gender has been mentioned as “T” (Third Gender). A person who is in the Third Category is entitled to remain beyond the duality of male/female or opt to identify oneself as male or female. It is entirely the choice of the individual concerned”.
The High Court finally passed its order as “A marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same. By holding so, this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart”.
Read the order here:
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