Transgender Persons In Heterosexual Relationships Have Right To Marry Under Existing Laws: Supreme Court

While refusing to grant legal recognition for queer marriages in India, the Supreme Court today affirmed that transgender persons in heterosexual relationships have a right to marry as per the existing statutory laws or personal laws. The Constitution bench pronounced four judgements– written by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively, with Justice Hima Kohli concurring with the view of Justice Bhat.The bench has unanimously held that transgender persons in heterosexual relationships have the right to marry under the existing laws or personal laws. In this context, the CJI, in his judgement, stated that gender of a person was not the same as their sexuality. Therefore, since a transgender person could be in a heterosexual relationship, a union between a transman and a transwoman or vice versa could be registered under the Special Marriage Act and other existing laws. Justice Kaul concurred with the Chief Justice on his opinion. CJI wrote :"The gender of a person is not the same as their sexuality. A person is a transgender person by virtue of their gender identity. A transgender person may be heterosexual or homosexual or of any other sexuality. If a transgender person is in a heterosexual relationship and wishes to marry their partner (and if each of them meets the other requirements set out in the applicable law), such a marriage would be recognized by the laws governing marriage. This is because one party would be the bride or the wife in the marriage and the other party would be the bridegroom or the husband. The laws governing marriage are framed in the context of a heterosexual relationship. Since a transgender person can be in a heterosexual relationship like a cis-male or cis-female, a union between a transwoman and a transman, or a transwoman and a cisman, or a transman and a ciswoman can be registered under Marriage laws. The transgender community consists of inter alia transgender men and transgender women. A transgender man has the right to marry a cisgender woman under the laws governing marriage in the country, including personal laws. Similarly, a transgender woman has the right to marry a cisgender man. A transgender man and a transgender woman can also marry. Intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage would also have a right to marry. Any other interpretation of the laws governing marriage would be contrary to Section 3 of the Transgender Persons Act and Article 15 of the Constitution"Justice SR Bhat, in his judgement, which was concurred with by Justice Hima Kohli, disagreed with the view of the CJI on various issues. However, he too, along with Justice Hima Kohli recognised the right of a transgender person in a heterosexual relationship to marry. Speaking on behalf of himself and Justice Kohli, he stated–"We agree with the CJI on the right of transgender persons in heterosexual relationships to marry as per existing laws."Justice PS Narasimha also did not dispute the same in his judgement. It may be noted that in his judgement, the CJI also asserted that the institution of marriage was not one that remained static or stagnant. To the contrary, he stated, it changed with the characterisation of the institution. "From Sati to widow remarriage, from child marriage to intercaste and interfaith marriages, marriage has changed. The institution that we know today is perhaps unrecognisable to our and sisters from 200 years ago," he said. However, the Constitution bench unanimously held that there was no fundamental, unqualified right to marry. CJI DY Chandrachud, in his judgement, while recognising the right of queer couples to enter into unions of their own choice, stated that the right to marry was not a fundamental right. On similar lines, while Justice SK Kaul too has stated that queer unions are to be recognized as unions of "partnership and love", he did not recognise the right to marry as a fundamental right. Justice SR Bhat and Justice Hima Kohli both concurred with the CJI to stated that there cannot be an unqualified right to marry which is to be treated as a fundamental right. Justice PS Narasimha, agreeing with Justice Bhat's judgement has also stated that the right to marriage is a statutory right, flowing from a custom, and is not an unqualified right.Further, all the five judges in the Constitution Bench unanimously held that the Supreme Court cannot strike or read down the provisions of the Special Marriage Act and Foreign Marriage Act to recognise queer marriages. The bench stated that the same lies within the domain of the parliament and the legislature and the court cannot step into the same. While the CJI and Justice Kaul have cited "institutional limitations", Justice Bhat, Justice Kohli, and Justice Narasimha have too stated that the Court could not create a legal framework for queer couples as it was for the legislature to decide owing to several aspects...

Transgender Persons In Heterosexual Relationships Have Right To Marry Under Existing Laws: Supreme Court

Padmakshi Sharma

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