Breaking new ground

The Madras High Court’s recent judgment is truly path-breaking for the LGBTQ community

A judgment of the Madras High Court, sitting in the Madurai Bench, has extended enjoyment of civil rights, especially those pertaining to marriage, by trans persons. While this is pathbreaking for Tamil Nadu, and much of the rest of the country, the judgment also opens doors to LGBTQ community for availing civil rights including marriage, succession and inheritance. 

In the judgment delivered in the case of Arunkumar and Sreeja vs Inspector General of Registration and Others 2019 (WP(MD) 4125 of 2019), the Madras High Court has held that a valid marriage solemnized between a male and trans woman is valid under Hindu Marriage Act 1955 is bound to be registered by the authorities.  The judgments quotes NALSA vs Union of India (2014), which famously held that the transgender person has the right to decide their “self identified gender”.  This position has been repeatedly upheld by the Supreme Court through subsequent judgments in Justice (Retd.) K.S. Puttaswamy vs Union (2018) and Navtej Singh Johar vs Union (2018).

The present judgment breaks new ground when it comes to the interpretation of the statutory terms found in the Hindu Marriage Act 1955, especially that of bride and groom. The judgment states that “the expression “bride” occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning. As noted in Justice G.P.Singh’s Principles of Statutory Interpretation, the court is free to apply the current meaning of a statute to present day conditions.”  

The nine-judge bench in Justice (Retd.) K.S. Puttaswamy vs Union (2018) made a telling reference to the landmark judgment Obergefell vs Hodges 576 US  – (2015) wherein the Supreme Court of the United States of America held that the “fundamental right to marry is guaranteed to same-sex couples by both Due Process Clause and Equal Protection Clause of the Fourteenth Amendment.“

Taken together, the present judgment of the Madras High Court read along with the Supreme Court’s explicit reference to the guarantee of right to marry to homosexual couples, there cannot be a legal bar to extending civil rights such as marriage, succession or inheritance to LGBTQ couples, who have decided to get married consensually, married in accordance with the existing laws and are not in violation of any other laws. 

It is of particular interest to note that at the preliminary hearings before the Supreme Court in the Navtej Singh Johar vs Union (2018 case, the Solicitor General, representing the Government of India, sought the curtailing of the scope of the case to that of the decriminalization aspect or the constitutional validity of Section 377 of Indian Penal Code 1860 alone.  The Supreme Court did not have an opportunity to examine the bundle of rights that were to naturally arise from the striking down of Section 377. Therefore, in this context, the present judgment is truly pathbreaking for the LGBTQ community who have been unfairly denied of equal protection of laws with regard to civil rights. By implementing this judgment in letter and spirit, India would finally honour Article 16 of the Universal Declaration of Human Rights which reads:

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”

Manuraj Shunmugasundaram

Advocate and Spokesperson, DMK  

Link to the Article: https://www.thehindu.com/opinion/op-ed/breaking-new-ground/article26946299.ece

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