Marriage: A Human Right but Not a Homosexual Privilege: Sparsha S Pai & G. Vidya Kamath

Marriage: A Human Right but Not a Homosexual Privilege

Author: Sparsha S Pai

Co-Author: G. Vidya Kamath

Shri Dharmastala Manjunatheshwara Law College, Mangalore

Affiliated to Karnataka State Law University, Hubballi

ISSN: 2582-3655 

ABSTRACT

The transgender community across the world has faced varied forms of discrimination. India, despite having a Constitution assuring equality, has been unfair to the transgender community in different aspects of life. The transgender community is neglected by the government and by society due to their stagnant thoughts. Not only society but also the families of the transgender community are not accepting them as family members. Many NGOs are working for human rights, but they have ignored the transgender community. In India transgender communities is overlooked in every aspect of life like education, marriage, healthcare that are fundamental rights guaranteed under the constitution to an ordinary citizen and the only reason for all this is “gender identity”. As Ed Murray rightly said, “The Transgender Community deserves the dignity and respect that most people take for granted”.  In 2018, the Supreme Court of India declared section 377 of the Indian Penal Code unconstitutional, so far as it criminalized consensual sexual conduct between adults of the same sex. The government of India has introduced a Transgender Protection Bill in 2019, which guarantees various rights to the Transgender community, which includes the prohibition of discrimination against them in employment, education, housing, healthcare and other services. However, the provisions for transgender marriage are neglected. By writing this research paper, the authors intend to bring out as to who is a transgender and the validity of the transgender marriage under the Hindu Marriage Act, 1955 by referring to certain recent judgments of the different courts in India.

1. Introduction

Biologically, there are two main genders, Male and Female. Transgender is also biologically male or female but consider them to be in the wrong body. The term “transgender”, derived from two words, namely, “trans” and “gender”. While the Latin term “trans” means across “ or beyond “,^[1]The term “gender” is a complex concept. “Gender”, according to the World Health Organisation, refers to “the socially constructed characteristics of women and men – such as norms, and roles and relationships of and between groups of women and men”.^[2]A common misconception is that a transgender person is gay. However, being transgender focuses on gender identity and not sexual interest. A transgender person may identify with any sexual orientation. Another important misconception is that individuals who cross-dress are transgender. However, many cross-dressers are comfortable with their assigned sex.^[3]According to Merriam- Webster’s Dictionary, transgender means, a person whose gender identity differs from the sex the person had or was identified as having at birth especially: of, relating to, or being a person whose gender identity is opposite the sex the person had or was identified as having at birth.^[4]

According to Oxford Dictionary Transgender means, “describing or relating to people whose sense of gender identity does not match their biological sex or does not easily fit in with the usual division between males and females”.^[5]

According to section 2(k) of Transgender Protection Act 2019 India, “transgender person” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), the person with intersex variations, genderqueer and person having such socio-cultural identities as Kinner, hijra, aravani and jogta.^[6]

 Transgender is confused with many other gender concepts such as Intersex, Lesbian, Gay, Bisexual, etc. as transgender is an “Umbrella” term used to describe people whose gender identity is different from that of their assigned sex. Their anatomy, gender identification, sexual attraction differ from one another. According to Oxford Dictionary Intersex is a condition of having both male and female sex organs and other sexual characteristics.^[7] People having intersex conditions have anatomy, which is considered not to be typical male or female but whereas Transgender is usually people who are born with typical male or female anatomies but identify or feel as if they are in the wrong body.

The next type of gender concept, which is confused with transgender, is Lesbian. According to the Oxford dictionary, Lesbian means a woman sexually attracted to other women^[8]. Thus, a lesbian is born with typical female anatomy and even identifies them as female but they prefer a woman as their sexual partner.

Gay is not the same as transgender, According to the Oxford dictionary, Gay means men sexually attracted to people of the same sex^[9]. Thus, a gay is born with typical male anatomy and even identify them as male but they prefer a man as their sexual partner.

According to the Oxford dictionary, bisexuals are people sexually attracted to both men and women.^[10] Transgender also includes a person who intends to undergo Sex Re-assignment Surgery (SRS) or who has already undergone SRS. SRS is a process where transgender undergo a surgical procedure (or procedures) by which a transgender person’s physical appearance and function of their existing sexual characteristics are altered to resemble that socially associated with their identified gender^[11]. They are called Transsexual persons. Further, some people cross-dress; dressing like the opposite gender, they are called transvestites. Thus from all the gender concepts, it is understood that Transgender is mostly a psychological gender concept rather than biological.

1. Locating Transgender in the History of Literature

According to the renowned writer Devdutt Pattanaik in his book ‘Jaya’, in the great Mahabharata war, Aravan came forward to sacrifice himself to ensure the victory of Dharma. However, he insisted that he must have a wife who would weep for him when he died. In keeping with the rules of the ritual, it was mandatory to fulfill the last wish of the Aravan. The Pandavas were obliged to get Aravan married but no woman was willing to be his wife. Who would want to marry a man doomed to die at sunrise? When all attempts to get Aravan a wife failed, Krishna rose to the occasion, transitioned himself into a female form known as Mohini, and married Aravan. The next day when Aravan was beheaded at dawn, Krishna wept for him like a widow. This tale of Aravan’s human sacrifice comes from north Tamil Nadu’s oral traditions where Aravan, worshipped as Kuthandavar, a form of Shiva. Aravan’s sacrifice is re-enacted each year ritually where he becomes the divine husband of all men who have womanly feelings. Through Aravan’s mythology, the existence of Transgender people in society is acknowledged, explained, and validated.

The Indian mythology witnessed a great rage of many prominent characters that broke down the mentality of the gender norm and respected those combatant men for their selfless service. While one such historical character that defeated the fear of stigma and stood for the epitome of excellence is warrior “Shikandi”. In the great saga of Mahabharata, Shikandi remains one of the oldest documented Transgender who portrayed herself to immense dynamism. Shikandi in her previous life was born to King Kashi as his youngest among the three daughters born to him known, Amba, Ambika, and Ambalika. Along with her sisters, she was abducted by Bhishma (defender of Hastinapur) from their Swayamvara (Practice in ancient India, of girl choosing a husband from the list of suitors), as a punishment to Kingdom of Kashi for not inviting Hastinapur nobility to the event[12]. As a token of gratitude, Bhishma presented the three sisters before Vichitravirya (the crown prince of Hastinapur); he got married to two of her sisters while Amba rebelled against this marriage and told she loved Salwa, (the king of Saubala). Bhishma sent her back Amba to the love of her life, but in shame of losing the warfare, he rejected her. After losing Salwa she returned to Hastinapur with rage to destroy the kingdom and asked Bhishma to marry her. As Bhishma was bind to follow his pledge of celibacy, he refused. Nowhere to go she did severe penance to Lord Shiva for a boon to cause Bhishma’s death[13]. With her new life came into reform she was born as Shikandi. Shikandi (Drupada) was male but born female, sometimes whole and sometimes a eunuch but a Transgender, since Panchal does not practice gender discrimination she was trained as a warrior. Her identity was hidden from the family and he got married to daughter Hiranyavarman. When she came to know her husband is a woman she informed her father, who in fierce sent a message to Drupada.[14] Alarmed by this Shikandi left home and moved into the jungles, wherein he met a Yaksha named who exchanged sex with her. The kuveras learn the truth after the death of Bhishma, cursed Yaksha to remain female until Sikhandi’s death[15]. The historical warriors respected the character of Shikandi for who he was in spite of his gender and his marvelous combat in Kurukshetra, while in Kalyug(Current Era) the stories turn out to be struggles of Mankind.

During the last year of exile, Pandavas had to hide their identity. Arjuna is said to have assumed the form of a transgender. Disguising himself as a dancer named Brihannala to receive shelter with King Virata. Lord Iyappa is also a syncretic deity born of the union between Lord Shiva and Lord Vishnu who took the form of Mohini. Ramayana also talks of an encounter between Lord Rama and Transgenders. Rama is said to have especially blessed the community^[16].

While many examples can be seen for Transgender in history, other sources are proscriptive. Hindu scriptures are divided into two groups: “Shruthi”, very words or Deity; and “Smriti”, Secondary scriptures, usually known to be recollections of Rishis handed down to us. Many of the criticisms against homosexuality arise from the Smriti. Manusmriti is one of the texts, which deals with one individual’s sacred duties, known as dharma. The central idea of dharma in Manusmriti is the need to produce children or offspring for the continuation of society. It states, “Men do not copulate for the sake of progeny are unworthy of making offerings to gods and ancestors”. Those who swear by the Manusmriti, believe that those who do not participate in gender roles to promote procreation and sexual relationships can be considered as failing the objective of Hindu life^[17].

Many instances can be located during the period of ancient, medieval, and modern ages. Transgender or transvestite priests known as gala were found in the Sumerian and Akkadian texts from 4500 years ago document. They were specialized in singing lamentations and they appeared in temple records dating back from the middle of the third millennium BC. Before European colonization, Americans traditionally recognized third gender or multi-gender roles, such as the Navajo nádleehi gender spectrum or the Zuni lhamana. During the Mediterranean age, around 9000 to 3700 years ago there were female transgender priests Galli and records of women who passed as men to vote, fight, or study during times when these things were forbidden for women.  Elagabalus, the Roman emperor preferred to be called a lady, not a lord, sought sex reassignment surgery, and has been seen as an early transfigure. Thailand has formed trans-feminine third gender social and spiritual communities since ancient times and also mentioned Tran’s male figures. Religious emblem and cultures include depictions of androgynous figures with bodies that are male on one side and female on the other. India, Bangladesh have legally recognized as a third gender as a part of the community.^[18]

In middle ages, a Jewish philosopher Maestro Calo’sgrief for being born as a man instead of a woman was an early note of gender dysphoria. Gender dysphoria (GD) is the distress a person feels due to a mismatch between their gender identity and their sex assigned at birth. People with gender dysphoria are typically transgender. The diagnostic label gender identity disorder (GID) was used until 2013 with the release of the DSM-5. The condition was renamed to remove the stigma associated with the term disorder. Eleanor,a person with male anatomy was arrested in 1934 for living and doing sex work as a woman, has been seen as a trans-woman. Since the 1400s Balkan sworn virgins are women who take a vow and start dressing like a man to live as men in patriarchal society appeared in Albania. In colonial Virginia, Thomas Hallwas an English intersex person and a servant who’s wearing of female attire and association with a maid provoked public controversy in 1629. Jennie Junea Trans auto biographer organized the Cercle Hermaphroditos which was a transgender advocacy organization back then in 1895^[19].

In Modern times, which is from the 18^th century until now, there are many examples concerning transgender. In 1900s, a musician named Billy Tipton assumed male gender identity. Tipton’s female sex was not revealed publically until his death. Lucy Hicks Anderson is another example who was backed by her parents and society in being a woman. Karl M. Baer, Alan L. Hart and Michael Dillon had female to male sex reassignment surgeries. In 1930 and 1931, Dora Richter and Lili Elbe had male to female sex reassignment surgeries along with an ovary and uterus transplant. In 1952, Christine Jorgensen an American Trans woman brought awareness regarding reassignment surgery through her public transition. In Iran, the government partly funded sex reassignment surgeries, and now performs more surgeries than anywhere else. In the 1990s and 2000s, Transgender Day of Remembrance was initiated in the reminiscence of those who have been murdered due to transphobia. Trans people like Georgina Beyer, Shabnam Mausi were elected as government officials. The Judiciary started recognizing Tran’s people’s rights and privileges in some countries such as India, South Africa and few countries in the west. In India, Sathyasri Sharmila became India’s first transgender judge, Manabi Bandopadhyay became India’s first transgender college Principal, who has proved all deserve equal opportunities to flourish and reach success. At the same time, other counties such as Central Asia, Arabia and the rest of Africa are belligerent of Transgender people’s rights.[20]

1. Transgender Discrimination in Society

Children from a young age are brought up in a heterosexual atmosphere within their own homes and schools. Transgender faced discrimination within their families, school, employment, and even by the government. Society differentiates the transgender community and they are often treated as untouchables, forgetting that the moral value lies within us and not the society. The mind-set of the generation should not be stagnant and the generation should come out from their confined mind-set.

At the workplace, transgender has been facing difficult times coping with traditional gender norms. Among co-workers, teasing, or discrimination arises, affecting the mental status of transgender. They have been rejected and denied jobs mostly in all sectors of the workplace, forcing them to poverty and pushing into petty and awful jobs like prostitution, begging and illegal dealings, discouraging and lowering their self-esteem to choose the career path they like. One such example is Tee an Afro- Latino who grew up in Brooklyn, New York. Her family members disowned her when they found out about her transphobia. Due to which she was homeless before she could find supportive housing. Tee’s struggle was immense to find a job due to transphobia. Tee, was sexually harassed at workplace by her supervisor, who fiddled with her from behind. She was even quizzed regarding her genitals just for the fact that she was a gender-fluid person.[21]

Identifying as transgender at an early age becomes troublesome when their gender identity conflicts with traditional school and college norms. Discrimination may come from classmates who tease, physically harm transgender students. One of the major examples is deciding what bathroom to use in the public. Transgender individuals face ambiguity in stepping into the washroom according to their assigned sex or gender identity. Mental and physical strain is a result of this discrimination by their peers on transgender students, which in turn sabotages their personality as a whole. Apart from being identified as who they are, transgenders face many crises when they are discriminated against because of their race. Black transgender discrimination is the highest reported crime.

Transgender people also face harassment in health care. Few doctors refuse to treat transgender patients leaving them with no other option apart from suicidal intentions, losing hope to make a shelter for themselves in society. Mickey a transgender is the best example, who was tormented by the healthcare providers. Mickey explored an orchiectomy to surgically remove her testicles and was sanctioned aid from her health insurance provider. However, the hospital refused for the surgery because it was against gender-affirming surgeries. Not a lot of surgeons perform this surgery and the surgeon Mickey found refused to carry out the surgery because he had surgical privileges at this hospital.[22]

The transgender community faces a huge roller coaster ride in all phases of their life from their childhood to hitting puberty. It is bewildering when their legitimacy regarding marriage is questioned, irrespective of their choice.^[23]

1. Marriage: General View

Marriage was first seen in Middle English in around 1250-1300 CE. Marriage is the union of two people making their relationship an official affair. A bond of two people putatively lasts until death wherein the partners respect each other, recognizing the interpersonal relationship usually sex which will be acknowledged or sanctioned by the society as a pure bond.

Definition of marriage – According to Merriam-Webster Dictionary “the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law”[24]

The dictionary defines marriage as “The legal union of a man and a woman as husband and wife”. From a legal perspective, marriage has been defined as “the state of being united to a person of opposite sex generally husband and wife which is sanctioned and dissolved only by law”. Usually in many parts of the world marriage is recognized as a contract between two humans wherein they share their income, possessions, and lives. A marriage ceremony is called a wedding, matrimony or wedlock, creating rights as well as obligations between them; they are in-laws and family, in general, considering equal partnership between a man and a woman.  The view of marriage varies around the world, not only in cultures but also in religions. Marriage is the beginning of a life-long commitment and cohabitation between the two. It also provides an opportunity to grow in selflessness, maintaining the financial stability to the ultimate goal of being “a family”, to carry on your religious obligations in the future, making it a spiritual and an emotional union between the couple.

India being a wide country with different linguistic citizens, different religions, and cultures we remains against one’s freedom. The predominant few religions are Christianity, Islam, and Hinduism, Jainism, Parsi, Sikhism.

1. Christian Tradition of Marriage

Christian’s affairs of marriage have holy matrimony divinely blessed for a lifelong commitment and a monogamous union between a man and a woman. According to the Episcopal Book of Common Prayer (1979), reflecting the traditional view, “Christian marriage is a solemn and public covenant between a man and a woman in the presence of God”.[25] Christians considered marriage as ideal and believed it to be a divine relationship according to the purpose of God. Marriage is a companionship, mutual understanding between the two individuals giving full freedom and sanction of intimacy. According to the Christian sources, the two main objectives of marriage are:

•The good of the spouses themselves

• Procreation and education of children

While some reformed, churches and other denominations recognize neither support nor perform a same-sex marriage. Many communities limit the term marriage only to a man and a woman and not to that of same-sex couples making it a heinous crime in the religion. While it does not scrutinize it be a sacramental marriage between the same sex as they do not recognize it within the boundaries of marriage, curtailing it only a man and a woman and not the same sex but blesses it them with the specific liturgy.

• Islamic Tradition of Marriage

The Islamic marriage is a legal contractual bond between a man and a woman, wherein both the groom and the bride have to consent to the marriage with their own free will. In Arabia before the advent of Islam in the 7th century BC, a vast variety of practices regarding marriage ceremonies existed. While through the different ways the marriages were being through agreement, capture, mahr, inheritance, “Mota” or temporary marriage. The Islamic marriage required consent, offer, acceptance, and consideration accordingly to make it to the marriage ceremonies. The groom, the bride, and the consent of the custodian (wali) is mandatory, while the custodian should be a Muslim pertaining him to the same base of religious background. The bride is usually provided at the signing of the marriage contract considering it to the religious validation to the ceremony and laying down the guidelines of their matrimonial rights and responsibilities. Before the ceremonies, verbal or written the Qubul (consent) is required of the man and the woman that is the bride and the bridegroom, custodian (wali) in certain exceptional cases.

While Heterosexual marriages are approved worldwide by all customary practices, Homosexual acts are forbidden. Traditional Islamic jurisprudence not only prohibits the marriage but also makes them liable to different punishments, including the death penalty, depending on their situation and legal schools of Muslim law (Sunni or Siya) making the marriage completely null under Mohammedan law

• Hindu Tradition of Marriage

According to Hinduism, marriage is a sacred relationship between a man and a woman, being a private ceremony within the social realm. With the traditional point of marriage framework, it is the most important transitional point containing the life cycle rituals named “Sanskar” which is followed by all Hindus.

The term Hindu has a wider perspective combining the viewpoints of many religions like Buddhists, Jains, and Sikhs, governed within the domain of Hindu law.

Hindu marriage is a blend, a companionship, a mutual attachment of two individuals performing the religious ceremonies for ultimate eternity so that one can pursue Dharma (Truth), Arth (meaning), and Kama (physical desires) wherein all these are recognized and approved by Hindu Marriage Act, 1955. According to the Shastric concept of Hindu life, the average life of a human being was hundred years, which is to be divided into four parts for attaining salvation namely Brahmacharya, Grihastha, Vanaprastha, and Sanya. Brahmacharya was the first of four ashramas, life from childhood up to twenty-five years of age. This stage concentrated on education and included the practice of chastity.[26]Grihastha was considered as the second stage and one of the important stages wherein man produces food and wealth that nurses people in other stages of life. In this stage, human beings get married and procreate for the continuation of mankind.[27] Vanaprastha is the third stage, or more likely a transition phase of a householder who gives up worldly pleasures (wealth, pleasure, and sexual needs) to attain Moksha (spiritual liberation).[28] The fourth and the last stage is Sanya, a stage of renunciation. Men or women at later stages of their lives discard materialistic pursuits and devote their lives to spiritual pursuits.[29] The Hindu Dharmashastras gave importance to these Ashramas to lead a happy life. When marriage in Hindus is considered Jatakam or Kundali is drawn as a base for any Hindu couple to get married, which is based on the placement of the stars and planets at the time of one’s birth. The maximum points for any match can be 36, making it a perfect match for the couple. Any match with points under eighteen is not considered, as an auspicious match for a harmonious marriage. It is a union of two individuals as spouses and is recognized by liveable continuity making it valid only after the consummation of the marriage.

Under Hindu law, marriage is a divine origin between two individuals for the performance of religious duties. Marriage, as per Vedic scriptures has known to be existed in eight different forms of marriage, providing meaning to one’s personal life namely, Brahma, Asura, Daiva, Arsha, Prajapatya, Paisaca, Rakshasa and Gandharva.

Gandharva Vivaha is the holiest and widely used form of marriage amongst all. That is a marriage between a man and a woman with the free consent of the bride based on the mutual love and attraction between the two.

Then the Hindu Marriage Act was enacted in 1955, which is the legislation governing marriage under Hinduism. The main intent of the act was to codify the law relating to marriage among Hindus. Besides codifying the Sastrik Law (the law on which Hinduism is based), it imported separation and divorce laws that did not exist in Sastrik law.^[30]

Section 5 of the Hindu Marriage Act specifies the conditions for a valid marriage between two Hindus, which can be listed as follows;

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
   1. though capable of giving 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;
3. the bridegroom has completed the age of twenty-one years and the bride the age of 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^[31]

From this, it is clear that for a marriage to be valid under the Hindu Marriage Act, the bride and bridegroom are required. However, the definition of bride and bridegroom is not mentioned in the enactment of Hindu marriage. Now the question arises if the bride and bridegroom under Hindu Marriage Act are inclusive of transgender?, If it doesn’t include, what happens to a transgender person (Hindu) who wants to get married, will it be accepted in society. Shouldn’t there be a law that codifies transgender marriage? or shouldn’t the provisions of a Hindu Transgender Marriage add to the Hindu Marriage Act?

• Need for Acknowledging Transgender Marriage

Marriage is considered one of the most essential and sacramental vows in a person’s life, usually requiring a bridegroom language. This sets a general notion in the mindset of the people regarding marital status and procreation. The union categorizes and specifies it to be within the domain of male and female with the free consent of both the parties to make it a valid marriage. Generally in many countries around the world do not allow a transgender person to his or her assigned sex to their psychological identity about themselves. Despite more than 70 years of formal equality, India does not recognize same-sex marriage or civil union between the two transsexual people curtailing it only between a man and a woman. Society stands stagnant throughout these conceptual ideas about two transgender getting married.

One of the fundamental rights guaranteeing equality to throughout the state stands in question every time in events of the transgender marriage. Courts in most of the countries have determined the right to marry is more of a personal right than a heterosexual norm continued throughout our society. India is one such country where the right to marry is guaranteed under article 21 of the constitution-making it a part of one’s life and liberty. Therefore, the right of one citizen to get married under heterosexual norm is considered a part and practice of society but the same comes into question when transsexuals get married.

The absolute right of an individual to choose a partner is considered an internal part of himself and the matters of faith, religion, and gender should not affect society. While most of the developed countries promise the right to every citizen of the country, irrespective of who they are and what gender they belong to, but the same countries act as a barricade to the acceptance of transgender marriage excluding them from the rights guaranteed to every citizen. One such country is India, where same-sex marriages and same-sex relationships are considered to be against the societal norm, which considers marriage to be a communion between a man and a woman. Lately, there have been few decisions by different courts of India, which have changed the mindset of people towards homosexual couples.

One of the major decisions given by the Supreme Court of India constitutes a prodigy by decriminalizing Section 377 of the Indian Penal Code and giving a glorious win to many around the state. By this amendment sexual acts between two homosexuals were legalized and no third party could question their relationship. But marriage between homosexuals or Transgender is still a debatable point. This makes it necessary for the government to take new provisional measures and encourage the transgender in all chapters of their life.

If these measures bring out a productive result, it would be an advantage to the entire transgender community in connection with social, economic, and psychological resources that cannot be obtained from other types of relationships. Transgender individuals who marry are socioeconomically privileged. Higher levels of economic resources boost the sense of control and enable them to have a better living which gives reduces exposure to stigma and discrimination. Transgender voice is often suppressed and ignored by society which makes them isolated and also lack support from their family members. Erstwhile it becomes necessary to have a companion wherein it minimizes public fears and increases social security and safety making them the courage to face the world.

As rightly mentioned in our Vedas that marriage is not only treated as a sacrament, it is a recognized civil right, thus recent judgments of the Supreme Court of India have got a considerable remark, which acts as a precedent and breaks down the common perception of marriage under Hindu Marriage Act, 1955.

• Recent Developments Regarding Transgender Marriage and their rights

Transgender people in India as discussed are facing social and legal difficulties that are not faced by non-Transgender people. The country has repealed its traditional laws that directly discriminated against gay sex and transgender identification. Since 2014, transgender can change their gender without Sex Re-assignment Surgery and are guaranteed a constitutional right to register them under the Third Gender. The transgender who reject both male and female as the normative gender categorizations constitute the second sub-set of the transgender community known as the Third Gender.^[32]In 2018, the Supreme Court of India decriminalized homosexuality by declaring Section 377 of the Indian Penal Code unconstitutional about consensual sex between homosexual adults.^[33]There are also various developments about Transgender marriage in recent times, which has a revolutionary change in the idea of transgender marriage.

In 2014, NALSA v Union of India

This is a landmark case by the Supreme Court of India, which asserted transgender people to be the ‘ third gender’, guaranteed that fundamental rights acknowledged under the Constitution of India will be uniformly applicable to the Transgender people, and gave them the right to self-identification of their gender as male, female or third gender. This verdict is a considerable step towards gender equality in India.^[34]

In recognizing the third gender, the court identifies that fundamental rights apply to the third gender in the same way as they are to males and females. In addition, non-recognition of the third gender in both criminal and civil laws such as those relating to marriage, divorce, adoption, etc. is prejudicial to the transgender community.^[35]

The Supreme Court of India added, Section 5 of this Hindu Marriage Act prescribes the essentials of a Hindu marriage. As per this section, two Hindus, one of whom can be identified as the bride and the other the bridegroom, can solemnize a marriage, unless it is barred by subsection (iii), (iv), and (v) of the section. Thus, the transgender who have their sex reassigned in all of their official documents and can legally identify them to be female or male, i.e., bride or bridegroom, can get their marriage legally recognized. Such a marriage is also not a subject matter of challenge by a third person since a petition for nullity of marriage or only the parties to the marriage can bring divorce.^[36] The Supreme Court also recognized Trans gender’s “right to marry” is a fundamental right under the constitution. The main source for this decision was the Yogyakarta Principles, which speaks concerning sexual orientation and gender identity.

In 2018, Shafin Jahan v Ashokan KM

The three bench judges of Supreme Court held that Right to marry a person of one’s choice is an integral part of right to life and liberty after setting aside the judgment of the Kerala High Court. The roots of the case began when Akhila Ashokan (Hadiya) was converted to Muslim religion after she fell in love with Shafin Jahan during her medical studies in Coimbatore.[37] She got married to him at the age of 25. When her father K. M. Ashokan found out about the marriage, he filed a complaint in S. P. Malappuram District. Since there was no progress with the investigation, he moved before the Kerala High Court. He alleged that Hadiya was misled and forced to be a Muslim and he contended that Shafin Jahan had links with many Muslim organizations. Hadiya was present throughout the court proceedings and admitted that she converted as a matter of faith. After 7 months, Ashokan put another petition that Hadiya had been subjected to forceful conversion and was likely to be sent outside India. On 24th May 2017, the Kerala High Court annulled the marriage.[38] Shafin Jahan filed an appeal in the Supreme Court of India challenging the verdict, with the arguments on both sides and many factors of age and choice taking into consideration, the Court held that its one integral personal choice to get married to the person they like with full liberty without any intervention.

With the forthcoming of many cases related to the marriage of “ones” own choice, the Supreme Court pronounced a notable change by including the right to marry person of one’s choice is integral under Article 21. However, despite the remarkable verdict the society has often acted as a barricade in controlling one’s life. In 2019, the Arun kumar v Inspector General of Registration case attracted many limelight with the validation of Hindu Transgender Marriage will include the term “Bride”. The Madras High Court said the expression “Bride” occurring in section 5 of the Hindu Marriage Act, 1955 will have to include not only a woman but also a Transwoman; it would also include an intersex person or a transgender person who identifies herself as a woman. The Court also held that a properly solemnized marriage between a male and a transwoman is valid under the Hindu Marriage Act, 1955, the Registrar of marriage is bound the registrar the same.[39]

From all these judgments, it is very clear that there is a strong need to provide marriage provisions for transgender

• Conclusion

Therefore taking the plight of the transgender, intersex, and other forms of genders who have been brutally rejected for their distinguishing appearance than the normal Homo sapiens, yet transgender found their way and bloomed into various fields changing the perception that “It’s not the gender that counts”. The current regime makes it impossible for the transgender community to work, often forcing them into illegal transactions by which they earn their daily nourishments.

While the ongoing debates for Section 377 exist, it has become a hot-button issue for LGBT activists to fight over a right, which is designated to every citizen in India but the transgender community is somewhere neglected because of their gender, which violates article 14, 19, and 21 of Indian Constitution. In a marriage, they say it is a companionship between two partners for equal competency. The Hindu Marriage Act, 1955 provides the need for bride and bridegroom for a Hindu Marriage while breaking down the same dilemma of who is involved under the term “Bride” –The Supreme Court in Arun Kumar’s case said that bride involves the trans-woman, making a path-breaking judgment for many across the world. In the case of history, though society did not approve transgender community and recognize their rights over marriage and other affairs of life. However, the Hindu folks did recognize the role of many iconic characters in the saga of Mahabharata like Shikandi and Mohini. While the 21st century still takes a dig on the transgender community and their rights and liberties, contrarily the Hindu mythology has resolved many ongoing debates, by unconditionally accepting transgenders as any normal human beings. Thus with India fighting against its Transgender Identity crisis,  it is necessary that the court not only decriminalizes section 377 of The Indian Penal code but also makes a provision for transgender marriage irrespective of their sex and gender, which makes the society a place that unites and fights all the odds.

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[37]  Shafin Jahan v. Ashokan K.M , Crl.A 366/2018 (arising out of SLP (Crl.) 5777/2017),

https://www.scobserver.in/court-case/hadiya-marriage-case

[38] Shafin Jahan v. Ashokan K.M , Crl.A 366/2018 (arising out of SLP (Crl.) 5777/2017,

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[39] Manuraj Shunmugasundaram ,Breaking New Trend ,( APRIL 26, 2019 00:15 IST), https://www.thehindu.com/opinion/op-ed/breaking-newground/article26946299.ece#:~:text=In%20the%20judgment%20delivered%20in,bound%20to%20register%20the%20same.