Searching For Solace: The Plight of Third Gender Marriage Rights in India
The blog focuses on the following:
How India could possibly amend its personal laws to permit the marriage of the third gender and the exigency for those amendments.
The incorporation of different judicial interpretations to fulfil the void made by the absence of local enactment or domestic legislation by various milestone decisions.
The case of Butler’s theory of inclusive interpretation of marriage.
It is the fundamental right of a person to marry as laid down by the Apex Court of India in the landmark case of Shafin Jahan vs. Ashok K.M.  It is an issue of grave prejudice if a whole group or class of society is precluded from the right to marry on the grounds that they did not fit the definitions of male and female and any corollaries. At present, there is no law in India that explicitly supports third gender marriage.
The legality of marriage
The Transgender (Protection of Rights) Bill, 2016 and then amended and reintroduced in 2018 talks about the protection of rights of transgender people. In neither of these cases is there any mention of the rights of transgender people to marry. According to Section 5 of the Hindu Marriage Act, 1955 only a marriage between a bride and a bridegroom is perceived as legitimate.  The expressions bride and a bridegroom are gendered terms and the fundamental conditions of a legitimate Hindu marriage under Section 5 of the Act give no acknowledgment of marriage with the third gender. Section 4 of the Special Marriage Act, 1954 requires a ‘male’ and a ‘female’ among different conditions to register a marriage.  Accordingly, there is no degree for enrolment of marriage for “third gender” under the Special Marriage Act.
Need for amendment
Presently, there is an urgent need to make amendments in these Acts in order to protect the rights of Transgender individuals. The word “man” and “woman” should be replaced with the word “person” in order to bring the third gender under that ambit. The courts proclaim that the third gender has rights as per the Indian Constitution under Articles 14, Article 19 (1)(a),and Article 21. No statutory laws exist that go against this way of thinking. However, these individuals often have no real way to implement those rights. Thus, the Report on Law Commission of India Consultation Paper on Reform of Family Law, 2018 contended that marital rights ought to be accessible to everyone who possessed the now widened (post NALSA decision) definitions of ‘man’ and ‘woman’. Being a signatory to the Yogyakarta Principles, India can facilitate amendments to the already existing laws and achieve an enormous change for individuals of the third gender community. The Yogyakarta Principles corresponding to Sexual Orientation and Gender Identity embody the duty of states to include interpretations and amendments to legislation so as to address the maltreatment of the basic human rights of transgender individuals and ensure equality. Principle 3 of the Yogyakarta Principles clearly states that: “…No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity.”
The fundamental right of transgender people to marry people of their choice was attested by the Madras High Court in Arunkumar and Another vs. the Inspector General of Registration and Ors.  Upholding a Hindu marriage among Arunkumar and Sreeja (a transwoman) which the Registrar of Marriages, Tuticorin had previously not enlisted, the Court identified issues of self-assurance, individual independence, and freedom of self-expression, as basic tenets of transgender people’s entitlement to marriage. Accordingly, the court decided that the construction of the “bride” must be deciphered according to the prevailing conditions. Given that transgender people have the fundamental right to a self-identified gender; “bride” under sec 5 of the Hindu Marriage Act, 1955 ought to be perused to include a transgender person that identifies as female.
The Court additionally counted upon the judgment of the Supreme Court in NALSA vs. Union of India, which had anticipated that marriage could be made accessible to transgender populace only after their gender identity is given due acknowledgment in law.  Even after the most celebrated case of Navtej Johar vs. Union of India, which sought to bring this LGBTQ group the same recognition as other citizens, problems persist.  In the The much coveted privacy judgment of K.S. Puttaswamy vs. Union of India, wherein the apex court observed that the fundamental right to privacy would cover the following perspectives- (i) privacy of the individual, (ii) informational privacy and (iii) privacy of choice. Moreover, the court also laid out that privacy incorporates the safeguarding of personal intimacies, the sacredness of family life, marriage, and sexual orientation etc. Additionally, it accommodated an implied acknowledgment of to marriage equality and its activity in India as a natural outcome of right of privacy.  Although the Madras HC judgement accommodates a breathing space to the good mass of India’s populace, nonetheless, the law actually does exclude them in the legislative outlining of the provisions.
Applying Butler’s Theory
When confronting the test of deciding the legitimacy of marriage dependent on the sex or gender of the parties focused on the marriage, the court must think about the legal sex of every single person. Various conditions in the legal setting call for various methods for managing the question, such ways not really required to intersect. As per Butler’s theory, each individual is fundamentally playing out a “gender” role of their own construction or decision, in view of social desires, and especially regarding the particular relationship that the individual in question shares with someone else, particularly a relationship in an evidently sexual setting.  It might be put forward for presumption that, in a marriage existing between two partners, any of the two partners in a marriage may decide to attempt either a feminine or a masculine gender role. Furthermore, this theory likewise advances that one ought not to streamline complex structures by categorising them into discrete and recognisable classes.
Implications of non-acknowledgement of marriage rights for the third gender community
Non-affirmation of third-gender marriage rights can have complex repercussions. The master- servant (Guru & Chela wherein the former is the influential figure whereas the latter is the disciple) relationship is a useful example. Under the prevailing conditions, a transgender person is exposed to extraordinary social and monetary control by his master (a relationship dependent on familial ties and affiliations), who consequently of this compliance, provides the mere survival necessities. In this vein, any genuine presence by a third gendered individual appears to be improbable except if a social acceptance is given in the form of enactments accommodating for fundamental rights like marriage.
Indian laws dealing with marriage, inheritance and adoption rely on binary genders of males and females which depend on an individual’s sex allocated at birth. at birth. However, this is an imperfect methodology. The suitable course ought to be for the legislature to volunteer to make the imperative changes in the marriage laws for consideration of the third gender community. Until then, the judiciary ought to consider the relationships in the community, as was done in the recent Madras HC judgment.
Anisha Singh is a final year B.A LL.B (Hons.) student at Chanakya National Law University Patna (CNLU), India. Her research interests include Gender Studies, Human Rights and
International Humanitarian Law. Ankit Singh is a final year B.A LL.B (Hons.) student at Chanakya National Law University Patna (CNLU), India.