Slamming the State government authorities for refusing to recognise the validity of a marriage between a male and a transwoman, both professing Hindu religion, the Madurai bench of Madras High Court has held that the Registrar of Marriages is bound to register the same in terms of Section 5 of the Hindu Marriage Act, 1955.
“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,” the judge said.
Also, on noting that since it has come to the notice of this court that the mandate issued by the Supreme Court that no one shall be forced to undergo medical procedures including SRS, sterlisation or hormonal therapy as a legal recognition of their gender identity, Justice Swaminathan said, “this court has to necessarily direct the Government of Tamil Nadu to issue a Government Order enshrining the aforesaid mandate of the Supreme Court so as to effectively ban sex reassignment surgeries on intersex infants and children.”
Based on this, the judge directed the Secretary of the Health and Family Welfare Department to file a compliance report before the registry within eight weeks.
Stating that he was not breaking any ground by ruling on the validity of marriage between a man and a transgender, Justice Swaminathan said he was merely stating the obvious. “Any intersex child is entitled to and must stay within the folds of its family. The running away from the family to the margins and beyond is a fatal journey that must be arrested. Time has come when they are brought back from the margins into the mainstream,” he said.
“The parents must be encouraged to feel that the birth of an intersex child is not a matter of embarrassment or shame. It lies in the hands of the government to launch a sustained awareness campaign in this regard,” the judge added.