RESEARCH PAPER SUBMITTED TO SVKM’S
NMIMS, SCHOOL OF LAW, NAVI MUMBAI,
INDIA.
PROJECT SUBMITTED ON-
TRANSGENDER MARRIAGE – LEGAL STATUS OF
TRANSGENDER MARRIAGE IN INDIA
SUBMITTED TO FACULTY:
PROF. RIMA HORE
MADE BY -
NAME – SARRAH KAPASI
SUBJECT – LEGAL METHODS
SAP I 81012200007
ROLL NO. – D005
COURSE – [Link]
BATCH - 2022-27
ACKNOWLEDGEMENT
I would wish to categorical my special thanks of feeling to my Prof. Rima Hore who
gave me the golden chance to do this excellent project on the topic “TRANSGENDER
MARRIAGE = LEGAL STATUS OF TRANSGENDER MARRIAGE IN INDIA”. that helped
me a lot in knowing on how to analysis on a subject. And not to ignore the very fact
that I need to comprehend such a lot of things, I’m very grateful to her.
NAME- [Link]
SAP ID- 81012200007
INDEX
[Link] TITLE PAGE NO.
1 ACKNOWLEDGEMENT 2
2 ABSTRACT 4
3 INTRODUCTION 5
4 STATEMENT OF 7
PROBLEM
5 OBJECTIVES 8
6 HYPOTHESIS 9
7 RESEARCH QUESTION 8
8 RESEARCH 9
METHODOLOGY
9 ANALYSIS 10
10 CONCLUSION 12-13
11 REFERENCES 14
ABSTRACT
This paper is the study of legal status of transgender marriage in India.
Within the Vedic and Puranic texts, male, female, and Tritiya Prakriti are all mentioned.
Inside, Indian hijras, who naturally combine male and female traits, are indistinguishable
from one another. Hijras do not experience menstruation or have genitalia despite their
gender. Hijras are mistreated and denied their Part III rights. According to Section 5 of the
Hindu Marriage Act of 1955, the Supreme Court of India has ruled that a Hindu man and a
Hindu woman may marry legally.
If a woman does not meet the criteria for a "bride," she will not be permitted to marry. This
decision does not legalise same-sex marriage, and members of the LGBTQIA community and
those in same-sex partnerships cannot marry.
Key Words
Indian constitution
Transgender individuals
Register of marriages
Transgender
INTRODUCTION
The 2008 Transgender Identification and Gender Expressions Act defines transgender people
as "a person whose sense of personal identification and gender does not coincide with their
biological sex. Transgender people don't identify with their gender. Transgender includes
gender expression beyond sexual orientation. Many states recognise them as the "third
gender". Transgender people have been neglected. Transgender people have been recognised
in India for 3,000 years. The sacred Vedas mention them. Individualism and free expression
have made transgender rights more widely recognised and appreciated than ever before. The
public mischaracterizes these people, although some progress has been achieved to defend
their fundamental liberties. Chhattisgarh hired 13 transgender police personnel. In October
2017, Bhopal introduced a transgender restroom. Transgender people are becoming accepted
part of society. The Supreme Court's major rulings have established transgender rights.
Throughout human history, marriage has been common across nations and religions. As
cultural practise and legal jurisprudence evolved, its complexities changed, usually for the
better, but no more revolutionary challenge to traditional marriage norms has been mounted
than homosexual and transgender marriage. Most people believe that marriage is between
two people. This study looks at one aspect of that viewpoint. Public restrooms, sex change
treatment provided by the state, and other transgender rights issues are hotly debated. This
research looks into transsexual marriage. Transgender marriage may be more similar to
traditional marriage than same-sex marriage, making it an excellent starting point for
legalising and culturally accepting homosexual marriage.
Changing the marriage laws to permit transgender marriages would be the quickest way to
resolve this issue. This would eliminate the need to determine how to interpret transgender
marriages, and providing this solution in a research paper would be relatively simple. It
would be the optimal option. It would be ideal because people would have more freedom to
marry rather than less, and everyone would be treated equally. Given the politics of marriage
and the fact that most governments do not place a high priority on LGBT rights, it would be
unrealistic to suggest this optimal solution. The most significant decision is NALSA v. Union
of India, in which the Supreme Court ruled that transgender people are legally "the third
gender" and, as a result, possess all the fundamental rights guaranteed by the Constitution.
STATEMENT OF PROBLEM
Transgender people face discrimination, unemployment, a dearth of educational
opportunities, homelessness, a scarcity of HIV treatment and sanitization services,
depression, suicidal ideation, substance abuse (including hormone replacement therapy),
cigarette and alcohol dependence, marriage problems. Although transgender people were
granted voting rights in 1994, voter identification cards continued to be distributed based
on gender. They were not given cards in the sex categories they liked [Link] are
underemployed. Transgender people cannot use public restrooms. Change is stigmatised;
thus, bathrooms and public spaces are inaccessible. Prisons, hospitals, and schools have
similar issues.
Many families reject their son's feminine or gender-inappropriate behaviour. Thus, family
members may threaten, criticise, or abuse that person for acting like a girl or woman. Some
parents may reject their child for breaking community rules and not acting like a guy. Parents
may do so to embarrass and disgrace the family, lower the odds of their child marrying a
woman and ending their generation (if they have no male children), and prevent their child
from caring for the family. Thus, deceased women may have trouble inheriting their half of
the property legally. A youngster or young person may run away from a family that cannot
tolerate discrimination or does not want to embarrass their family. They may become
illiterate and unemployed. Opposite-sex people call some community members "strange" and
even hostile. They face physical and verbal harassment, forced sex, extortion, building
materials, and fake allegations from police.
Social Development offers many initiatives to disadvantaged people. Other than rare Tamil
Nadu Aravani initiatives, there are no hijra programmes. Andhra Pradesh ordered the
Ministry of Social Development to treat "Hijra" as a minor and offer benefits. Valid
procedures, address verification, identification proof, and income certificate requirements
restrict eligible people from using existing schemes. Hijra/transgender communities are very
well-versed in social programmes. The Tamil Nadu Societal Development Department
created the "Aravanigal/transgender Women Welfare Board" to handle Aravani/Hijra social
issues. No other government has followed suit.
It goes without saying that the government needs to change the Transgender Act, since it says
nothing about this and leaves a lot up to the courts to decide. Along with these changes, the
local government should also do more to help transgender people with the problems they face
every day. A central act can only serve as a guideline. In the end, it will be local efforts in
partnership with NGOs that will make difference.
RESEARCH OBJECTIVES
To give legitimacy to transgender marriage should be considered as special case.
To consider them as a special gender as this is their natural birth.
To judge their marriage as a special case and not consider them as same sex marriage.
RESEARCH QUESTIONS
1. Are they given a special position which is being discussed from years?
2. Has the discussion and research helped to change their position?
3. Are the fundamental rights providing special amendments to these human beings?
RESEARCH METHODOLOGY
The research approach used to perform this thesis is doctrinal analysis and analytical of
nature. The doctrinal material will be in the context of secondary data collection, which the
researcher will have access to. Along with resources at the state and national levels, including
publications, information, and other etymology.
HYPOTHESIS
1. Years have passed while their position has been argued over without any
consideration being given to them. Their status has improved at times and worsened at
others; at times they have been degraded to the point where they have abused
members of the opposite sex; at present, however, their status is improving; they are
accepted as full members of the human race; however, no special legal protections or
laws have been enacted on their behalf as of yet..
2. Studies have not helped them change their social status; only they have been able to
determine the unique factors that account for their out-of-the-ordinary actions. They
have never held regular jobs, and instead make ends meet through beggaring, dancing,
and collecting gifts on special occasions like weddings and [Link] today's more
enlightened era, people have learned to accept them as full members of the human
race, and many Indian states have extended to them all the rights and privileges
normally reserved for the average citizen. A steady income makes it possible for them
to provide for their families on a daily basis, and they are now able to find work in a
variety of fields thanks to increased access to education. These days there are also
marriage regulations in place. The government of Tamil Nadu, India, has enacted and
implemented such measures.
Analysis
According to scientific evidence, a person who identifies as non-binary is capable of living as
a man or a woman. Sexuality is influenced by both mental and social factors. This indicates
that sexual preferences within the sex community are diverse. Male, female, and Tritiya
Prakriti are all mentioned within the Vedic and Puranic texts. Inside, Indian hijras, who are a
natural synthesis of male and female characteristics, are indistinguishable from one another.
Male and female are the only possible sexes, so the options are black and white. Despite their
gender, hijras do not experience menstruation or have genitalia.
The Hijra was revered by Hindus because it blessed marriage and childbirth. Eventually, this
Hijra leadership fell and was imprisoned. A third of males in the United Kingdom were
compared to a fatal disease. The Criminal Tribes Act of 1871 authorised the government to
sexually arrest third parties for fear of immorality. During this time period, the intersex Hijra
community was mistreated by police authorities. The Act was repealed in August 1949, but
its odour lingered. Hijras are mistreated, and their Part III rights are denied. Still, society
shuns and mocks transgender people. They are subject to severe transphobia. They were
persecuted for joining the hijra society in secret. Even in a guru-chela system, individuals
must submit to authority.
The nation's marriage laws are changing rapidly as a result of how people feel about gender
and sexual orientation, and how these feelings evolve over time. The replacement of outdated
laws and policies with new ones. As provinces attempt to keep up with the rate of change,
this may cause legal issues.
Transgender individuals typically do not identify with the sex on their birth certificate.
Additionally, they may act differently based on their gender identity. Transgender individuals
may or may not decide to use hormones or undergo surgery to change their actual gender. As
part of becoming a new person, some transgender individuals change their legal names. They
may also legally change their gender on their birth certificates and driver's licences in certain
states. Due to the rapid rate of change, this may result in legal complications.
The Madras Court, in Arun Kumar and Another v. Inspector General of Registration and
Ors., upheld the basic freedom of transgender individuals to marry whoever they want. After
the Register of Marriages in Tuticorin had declined to register the Hindu marriage between
Arun Kumar and Sreeja (a transwoman), the couple took their case to the Supreme Court. If a
woman does not meet the requirements of a "bride" as set forth in Section 5 of the Hindu
Marriage Act of 1955, she will be denied the right to wed. In upholding the rights of
transgender individuals, the court considered factors outside the specifics of the case at hand,
including the importance of freedom of expression and the right to make one's own decisions.
The court initially established that a marriage agreement between a Hindu man and a Hindu
woman would be valid under Section 5 of the Hindu Marriage Act.
Court further said that discrimination based on sexual orientation or gender identity might
violate equality before the law and Article 14 of the Indian Constitution, which sex offenders
have the right to reveal if they want to do so. It used the NALSA case to argue that the
freedom to choose one's own sexual orientation falls under the umbrella of Article 21's
protections for all people. Therefore, the Applicant's decision to identify as a woman is a
personal choice.
It is essential to remember that while this decision represents a significant legal and social
victory for transgender people, it only expands the ability to marry for those who identify as
heterosexual. This decision does not legalise same-sex marriage, and under Article 21 of the
Indian Constitution, members of the LGBTQIA community and those in same-sex
partnerships do not have the right to [Link] to the legalisation of marriage between those
of the same sex, transgender couples may have been impacted by:
Existing gender restrictions in legal instruments.
The establishment of a "same-sex" marriage is illegal.
A transgender woman may be negatively impacted if she is unable to marry a guy
because his home province does not recognise his gender transition and treats him as a
woman.
A transgender woman may be negatively impacted by this sort of prohibition if she is
unable to marry a lady in her province who accepts her gender transition and treats
her as a woman. To solve this problem, several states have actually reversed their
prohibition on same-sex marriage.
If a man or a woman discovers that their spouse has had sexual relations with another
person before or during the marriage, the marriage may be dissolved.
Conclusion
According to studies on the topic, transgender issues are complex and multifaceted.
Transgender individuals posed a difficult problem for Indian policymakers and economists. If
a problem's definition is contested, its magnitude cannot be assessed accurately. Due to the
plethora of potential obstacles, planning is ineffective. There must be an immediate
consensus regarding the definition of the term "transgender." Similar to converters, they must
overcome their own unique challenges. Due to these differences, different approaches,
methods, and strategies are required to meet the needs of the numerous types of transgender
individuals in the contemporary world. Transgender individuals may be subjected to
harassment because of their perceived sexuality or gender expression. An individual's level of
stress is largely determined by how that individual interprets his or her own experiences. To
discriminate against oneself (due to a negative social attitude and its effect on one's level of
depression), to discriminate against another (due to the perception of rejection and the
future's ability to induce a state of constant vigilance), and to hide another person are all
distinct concepts and experiences.
One spouse in a later-married heterosexual couple made the transition to the opposite gender.
On the birth certificate, it is either a reincarnation or a sexual change, depending on the state
law regarding a person's sexuality for marriage purposes. The law must immediately address
and acknowledge the issue of same-day weddings. Since marriage is so fundamental and
important, the same mechanism should be developed to explicitly define "sexual" in the
context of transgender marriage. A deceased man who marries a woman in one state may be
regarded as a man in that state, whereas a deceased woman who marries a man in another
state may be regarded as a woman in both states.
