In a landmark verdict, the Madras High Court has held that the term ‘bride’ mentioned in the Hindu Marriage Act would also mean transgender woman, and that it would not just refer to a born-woman on her wedding day.

The court also ordered the Tamil Nadu government to issue an order banning sex reassignment surgeries on intersex infants and children.

Justice GR Swaminathan, quoting from the Supreme Court judgments and epics like Ramayana and Mahabharata, said the expression ‘bride’ in the Hindu Marriage Act could not have a static or immutable meaning.

Holding that the expression ‘bride’ in the Hindu Marriage Act would have to include not only a woman, but also a transwoman, the judge directed the authorities to register a marriage between Arun Kumar and Sreeja, a transwoman.

Transgender laws
Transgender laws

They had moved court after the registration department refused to register their marriage, held on October 31 at a temple in Tuticorin, and issue a certificate.

In the process, Justice Swaminathan also comprehensively rejected the government’s contention that the registrar of marriages had powers to refuse registration and stated that since one of them was a transwoman, they did not meet statutory requirement of the Section 5 of the Hindu Marriage Act, as the term ‘bride’ can only refer to a ‘woman on her wedding day.’

In this regard, the judge referred to landmark judgment by the Supreme Court, which upheld transgender persons’ right to decide their self-identified gender.

BANS SEX RE-ASSIGNMENT SURGERIES ON INTERSEX CHILDREN

 Transgender persons fall within the expression “person” and hence entitled to legal protection of laws in all spheres of State activity as enjoyed by any other citizen of this country”, said the judgment. Justice Swaminathan observed that “gender identity 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 court also gave directions to ban Sex Reassignment Surgeries on Inter-Sex Infants Based on the works on intersex activist Gopi Shankar of Madurai, the Court took note of the issue of rampant practise of compulsory sex reassignment surgeries performed on inter-sex infants and children. “When a child is born it is usually endowed with male genitalia or female genitalia. But there are children who are born with a genitalia that belongs to neither category. They are known as intersex children”, explained the Court.

 The Court said that they must be given their time and space to find their true gender identity. But the parents make the infant undergo sex reassignment surgery (SRS). Gopi Shankar had highlighted this practise in a complaint to the National Human Rights Commission, which was forwarded to the Ministry of Health. The Health Ministry’s response, which the Court termed “strange”, stated that the process was done with the consent of parents/guardian of the child and that isolated cases of abuse can be addressed by appropriate authorities. In this regard,the Court said “consent of parent cannot be regarded as the consent of the child”. “…neither the father nor the mother can claim suzerainty over the child and in the ultimate analysis, the children are not the children of their parents”, the judgment quoted Justice Chandru.

The Court took notice of a report of the World Health Organization calling for deferment of intersex genital mutilation (IGM) until the intersex persons are old enough to make decisions for themselves. “the Hon’ble Supreme Court in NLSA case categorically stated that no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal theraphy, as a requirement for legal recognition of their gender identity. But, what is happening in reality is more in breach of this judgement given by the Hon’ble Supreme Court”, said the Court.

On this basis, it ordered : “Since it has come to the notice of this Court that the mandate issued by the Hon’ble Supreme Court is not being honoured, this Court has to necessarily direct the Government of Tamil Nadu to issue a Government Order enshrining the aforesaid mandate of the Hon’ble Supreme Court so as to effectively ban sex reassignment surgeries on intersex infants and children”. The parents must be encouraged to feel that the birth of an intersex child is not a matter of embarrassment or shame, added the judgment.

This post is written by Dipti Prakash (PU). For more info on subject, please dial 99888-17966.

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