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MOOT COURT , ALIGARH MUSLIM

UNIVERSITY, MALAPPURAM CENTRE,
KERALA

( 2019-20)

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

Appellate Jurisdiction

Appeal no.______/2020

Appellant Reeta & Geeta and other transgender organizations.

Versus.

Respondent Kutamba Samiti.

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BEFORE SUBMISSION TO THE HONOURABLE CHIEF JUSTICE AND

HIS COMPANION JUSTICES OF THE HONOURABLE SUPREME
COURT OF INDIA.

TABLE OF CONTENTS

TABLE OF CONTENTS ____________________________________________________2

 
TABLE OF ABBREVIATIONS _________________________________________3
 
TABLE OF AUTHORITIES_____________________________________________4
 
STATEMENT OF FACTS____________________________________________ 5
 
STATEMENT OF JURISDICTION_________________________________________7
 
QUESTIONS PRESENTED____________________________________________________ 8
 
SUMMARY OF ARGUMENTS ____________________________________________9
 
ARGUMENTS ADVANCED _________________________________________________ 10
  
Issue 1. Whether the conditions for a marriage under Hindu Marriage Act,1955 is for
‘bridegroom’ and a ‘bride’ only?

 Transgender person’s Fundamental Right to marry.

 Ban on sex reassignment surgeries on children, not on adults.

Issue 2. Whether the term ‘bride’ under Section 5 of the Hindu Marriage Act,1955 include
‘transgender’ or not?

Issue 3.Whether the appellants are entitled the right to have a family or not?

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PRAYER _______________________________________________________________ 16

 
Table of Abbreviations

 AIR………………………..All India Reporter.

 Anr…………………………Another.

 Art…………………………..Article.

 SCC………………………….Supreme Court Cases.

 SCR…………………………..Supreme Court Reports.

 V……………………………….Versus.

 Govt……………………………Government.

 Hon’ble…………………………Honourable.

 i.e………………………………..That is.

 No……………………………….Number.

 Ors……………………………….Others.

 HMA……………………………...Hindu Marriage Act.

 W.E.F…………………………….With Effect From.

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Table of Authorities.

 Arunkumar and Another.  v  The Inspector General of Registration and Ors.  (WP (MD) No. 4125
of 2019 and WMP (MD) No. 3220 of 2019).

 NALSA  v. Union of India.

  Justice K. Puttaswamy v Union of India.

  Navtej Singh Johar v Union of India.

 Shafin Jahan  v  Asokan K.M. and Ors.

 Obergefell v. Hodges.

 Article 16 of the Universal Declaration of Human Rights.

STATUTES REFERRED

 CONSTITUTION OF INDIA.

 HINDU MARRIAGE ACT,1955.

DICTIONARY

 P. RamanathAiyaris, Concise Law Dictionary, 5th Edition, 2014.

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OTHER SOURCES.

 Devdutt Pattanaik’s book 'Jaya'

 'The Tell-Tale Brain' : “TRANSEXUALITY : DOCTOR, I'M TRAPPED IN THE WRONG KIND OF
BODY!

Statement of Facts
1. Reeta and Geeta are transgender. Geeta had undergone sex-reassignment surgery (SRS)at the
age of nineteen. Reeta was born male however she identifies herself as a female.Both are thirty-
five years of age and work as office assistants in different corners of the city. Reeta and Geeta
live in Perinthalmanna with other transgender in a remote part of the city, and manage their
affairs through meager salaries and begging in the train which runs in between Nilambur &
Ernakulam.

2. Reeta was abandoned by her parents when she turned twelve and Geeta decided to run away
from her home, due to her effeminate behaviour and masculine identity she was unable to
understand her sexuality and being traumatized by the constant discrimination by her friends and
family. She was stopped from attending school after 9th standard although she was a bright
student and excelling in academics and sports.

3. Both found a safe refuge after encountering Laxmi, a renowned transgender in Perinthalmanna
area. She asked them to stay with her and made efforts to provide them a job using her contacts.
Since then, Reeta and Geeta live together along with twenty other trans- genders in their house
called Prakriti for the last 10 years.

4. Reeta and Geeta fall in love with each other over the course of time and used to go for movies,
parks, and restaurant and sometimes they go on vacation for spending quality time. They do
these acts discreetly without informing anyone. They had also made a plan to live together and
adopt a child.

5. Meanwhile, Geeta's family finds her where she was living, through some relatives who had
seen her in the vegetable market. Geeta's family searched her and decided to visit her. After
knowing this very fact that she had undergone sex-reassignment surgery and about her
relationship with Reeta, they got provoked. Consequently a scuffle brock out between Geeta's
friends and family, and they further threatened Reeta & Geeta with dire consequences. Shocked
by this development, both became cautious and decided to get married and to move from there as
early as possible.

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6. Reeta‟s uncle Shyamu used to visit Reeta‟s parents regularly and took a keen interest on
Reeta‟s wellbeing. When Reeta was abandoned, she stayed with Shyamu for few years and
continued to remain in touch with him. It was only in October 2019, Reeta told Shyamu about
Geeta and their plan to get married and live together as couple. Shyamu was surprised on this
new development but being a well-wisher, wanted to help her out. After hearing about the
scuffle, Shyamu went along with Reeta to the Perinthalmanna Police Station to seek protection
for Reeta and Geeta both, if they were to encounter any danger.

7. Two weeks after the incident, Reeta and Geeta along with their friends met at theGuruvayur
temple and got married with Hindu rituals & customs. As soon as marriage photos became viral,
a pro binary gender family organization called „Kutumba Samiti‟ began to harass and threaten
the newlywed couple that they are violating the institution of marriage as they claimed that trans-
genders cannot tie the Mangalasutra. Kutumba Samiti also put out an advertisement in the
newspaper about the sanctity and importance of Hindu Marriage.

8. Further Kutumb Samiti approached to the High Court of Kerala for nullification of marriage.
After hearing the matter the Court held “while the marriage was solemnized according to Hindu
rituals & customs therefore we cannot nullify marriage solely on those grounds, but the law
defines marriage between two Hindus where „bridegroom‟ has completed the age of twenty one
years and the “bride” the age of eighteen years at the time of marriage. Even if we include trans-
genders within the ambit of „bride‟, the definition of „Bridegroom (the man)‟ cannot be
changed. On these very grounds, we declare the marriage invalid.”

9. Kutumba Samiti celebrated the verdict. Aggrieved by the judgment, Reeta and Geeta decided
to go in appeal before the Supreme Court. Therefore along with other transgender organizations
in the country, they approached to the Supreme Court of India to validate their marriage, extend
marital rights and to quash the judgment of the Kerala high court.

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court is vested with jurisdiction, to hear the present matter under Article
132 of the Constitution of India.

Constitution Of India Article 132 - Appellate jurisdiction of Supreme Court in appeals from
High Courts in certain cases.

(1) An appeal shall lie to the Supreme Court from any judgement, decree or final order of a High
Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court
certifies under art. 134A[1] that the case involves a substantial question of law as to the
interpretation of this Constitution.
[2]
[3](3) Where such a certificate is given, any party in the case may appeal to the Supreme Court
on the ground that any such question as aforesaid has been wrongly decided.

Explanation: For the purposes of this article, the expression final order includes an order
deciding an issue which, if decided in favour of the appellant, would be sufficient for the final
disposal of the case.

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-----
1. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s.17. (w.e.f. 01-08-1979).
2. Omitted Clause(2) by s.17, ibid. (w.e.f. 1-8-1979).
3. Omitted Words by s.17, ibid.(w.e.f. 1-8-1979)

Questions Presented
Issue 1. Whether the conditions for a marriage under Hindu Marriage Act,1955 is for
‘bridegroom’ and a ‘bride’ only?

Issue 2. Whether the term ‘bride’ under Section 5 of the Hindu Marriage Act,1955 include
‘transgender’ or not?

Issue 3.Whether the appellants are entitled the right to have a family or not?

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Summary of Arguments
1. Whether the conditions for a marriage under Hindu Marriage Act,1955 is for
‘bridegroom’ and a ‘bride’ only?

It is humbly submitted before the hon’ble court that the conditions for a marriage under Hindu
Marriage Act,1955 is not only for ‘bridegroom’ and a ‘bride’. Discrimination on the ground of
sexual orientation or gender identity would impair equality before law and would violate Art.14
of the Indian Constitution. Self-determination of gender is an integral part of personal autonomy
and self-expression and falls within the realm of personal liberty guaranteed under Art. 21.

The term ‘bridegroom’ and ‘bride’ in Section 5 of the Hindu Marriage Act cannot have a ‘static’
or ‘immutable’ meaning and that statutes must be interpreted in light of the legal system as it
exists today. 

2. Whether the term ‘bride’ under Section 5 of the Hindu Marriage Act,1955 include
‘transgender’ or not?

It is humbly submitted before the hon’ble court of law that the Petitioner’s choice to express her
gender identity as a woman would therefore fall within the domain of her personal autonomy. It
would be absurd to deny them the benefits of social institutions already in place in the
mainstream. “A marriage solemnized between transgenders, both professing Hindu religion, shall
be a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955.

Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the
heart. And therefore there shall no exclusion of transgender from the term Bride under section 5
of Hindu Marriage Act separately.

Issue 3.Whether the appellants are entitled the right to have a family or not?

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It is humbly submitted before the hon’ble court that the appellants are entitled the right to have a
family as they are also the human beings and part and parcel of the society. The definition of
‘family’ is not a fixed one. Advances in medical techniques and reproductive technology
require the law to adapt and keep pace. Social advances embracing, for example, same-sex
families and the rights of transgender people also require the law to be flexible and evolve
with the times.

Arguments Advanced
Issue 1. Whether the conditions for a marriage under Hindu Marriage Act,1955 is for
‘bridegroom’ and a ‘bride’ only?

 Transgender person’s Fundamental Right to marry.

It is humbly submitted before the hon’ble court that the conditions for a marriage under
Hindu Marriage Act,1955 is not only for ‘bridegroom’ and a ‘bride’. Discrimination on the
ground of sexual orientation or gender identity would impair equality before law and would
violate Art. 14 of the Indian Constitution. Self-determination of gender is an integral part of
personal autonomy and self-expression and falls within the realm of personal liberty
guaranteed under Art.21.

The term ‘bridegroom’ and ‘bride’ in Section 5 of the HMA cannot have a ‘static’ or
‘immutable’ meaning and that statutes must be interpreted in light of the legal system as it
exists today. 

A marriage solemnized between a male and a transwoman, both professing Hindu religion, is a
valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of
Marriages is bound to register the same. By holding so, this Court is not breaking any new
ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only
physical vision in the eye but also love in the heart.” –  Madras High Court.
 
The fundamental right of transgender persons to marry individuals of their choice was recently
affirmed by the Madras High Court in Arunkumar and Another.  v  The Inspector General of
Registration and Ors.  (WP (MD) No. 4125 of 2019 and WMP (MD) No. 3220 of 2019). The
High Court upheld a Hindu marriage between Arunkumar and Sreeja (a transwoman) which the
Registrar of Marriages, Tuticorin had previously refused to register. The ground for refusal was
that a transwoman would not qualify as a ‘bride’ under Section 5 of the Hindu Marriage Act,
1955 (HMA). The Court looked beyond the facts of the case to address issues of self-
determination, personal autonomy and freedom of self-expression, culminating in the recognition
of transgender persons’ right to marry. So it clearly means that the conditions for a marriage
under Hindu Marriage Act,1955 is not only for ‘bridegroom’ and a ‘bride’.

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At the outset, the Court clearly stated that a marriage solemnized between a Hindu male and a
Hindu transwoman would be a valid marriage in terms of Section 5 of the HMA. The Court
relied on the decisions of the Supreme Court in NALSA  v. Union of India, Justice K.
Puttaswamy v Union of India and Navtej Singh Johar v Union of India to reiterate that
transgender persons have the right to self-identify their gender. It held that sex and gender are
distinct, where a person’s sex is biologically determined at the time of birth, which is not the
case with gender.
 
Drawing on transgender persons’ right to self-identify their gender, the Court went on to state
that discrimination on the ground of sexual orientation or gender identity would impair equality
before law and would violate Art. 14 of the Indian Constitution. It quoted NALSA to state that
self-determination of gender is an integral part of personal autonomy and self-expression and
falls within the realm of personal liberty guaranteed under Art. 21. The Petitioner’s choice to
express her gender identity as a woman would therefore fall within the domain of her personal
autonomy, which State authorities are not entitled to question.

The Hon'ble Supreme Court in N.L.S.A Case noted that the existence of a third category outside
the male - female binary has been recognised in the indigenous Hindu tradition.

“According to the renowned writer in Devdutt Pattanaik his book 'Jaya', in the great
Mahabharata war, Aravan came forward to sacrifice himself to ensure the victory of Dharma.
But, he insisted that he must have a wife who will weep for him when he died. In keeping with
the rules of the ritual, it was mandatory to fulfil the last wish of the sacrificial victim. The
Pandavas were obliged to get Aravan married but no woman was willing to be his wife. Who
would want to marry a man doomed to die at sunrise?. When all attempts to get Aravan a wife
failed, Krishna rose to the occasion and transitioned himself into a female form known as
Mohini and married Aravan. The next day when Aravan was beheaded at dawn, Krishna wept
for him as a widow. This tale of Aravan's human sacrifice comes from north Tamil Nadu's oral
traditions where Aravan is worshipped as Kuthandavar, a form of Shiva. Aravan's sacrifice is re-
enacted each year ritually where he becomes the divine husband of all men who have womanly
feelings.

Through Aravan's mythology the existence of those who call themselves Transgender is
acknowledged, explained and validated.

Shikhandi is another important character in Mahabharata. She was born as a female but grew up
to be a male. During the last year of exile, Pandavas had to hide their identity. Arjuna is said to
have assumed the form of a transgender. Lord Iyappa is also a syncretic deity born of the union
between Lord Shiva and Lord Vishnu who took the form of Mohini. Ramayana also talks of an
encounter between Lord Rama and Transgenders. Rama is said to have specially blessed the
community”.

Now let us take a leap from mythology and traditional lore to modern neuroscience. Professor
V.S.Ramachandran who has been lauded as “The Marco Polo of neuroscience” by Richard
Dawkins has this to say in his book 'The Tell-Tale Brain' : “TRANSEXUALITY : DOCTOR,
I'M TRAPPED IN THE WRONG KIND OF BODY ! The self also has a sex: You think of

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yourself as male or female and expect others to treat you as such. It is such an ingrained aspect of
your selfidentity that you hardly ever pause to think about ituntil things go awry, at least by the
standards of a conservative, conformist society. The result is the “disorder” called transsexuality.
As with somatoparaphrenia, distortions or mismatches in the SPL can also explain the symptoms
of transsexuals. Many male-to-female transsexuals report feeling that their penis seems to be
redundant or, again, overpresent and intrusive. Many female-to-male transsexuals report feeling
like a man in a woman‘s body, and a majority of them have had a phantom penis since early
childhood. Many of these women also report having phantom erections. In both kinds of
transsexuals the discrepancy between internally specified sexual body image— which,
surprisingly, includes details of sexual anatomy—and external anatomy leads to an intense
discomfort and, again, a yearning to reduce the mismatch. Scientists have shown that during fetal
development, different aspects of sexuality are set in motion in parallel: sexual morphology,
sexual identity (what you see yourself as), sexual orientation (what sex you are attracted to), and
sexual body image (your brain‘s internal representation of your body parts). Normally these
harmonize during physical and social development to culminate in normal sexuality, but they can
become uncoupled, leading to deviations that shift the individual toward one or the other end of
the spectrum of normal distribution.

 Ban on sex reassignment surgeries on children.

The Supreme Court in the NALSA case categorically stated that no one shall be forced to
undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement
for legal recognition of their gender identity. The High Court, however, noticed that the mandate
in NALSA Case  was not being honoured. The Court directed the Government of T.N. to issue a
Government Order so as to effectively ban sex reassignment surgeries on infants and children.
The Secretary to Government, Health and Family Welfare Department was directed to file a
compliance report within 8 weeks. But here Reeta at the age 19 had undergone SRS
without any compulsion.

 
2.Whether the term ‘bride’ under Section 5 of the Hindu Marriage Act,1955 include
‘transgender’ or not?

It is humbly submitted before the hon’ble court of law that the Petitioner’s choice to express her
gender identity as a woman would therefore fall within the domain of her personal
autonomy.“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 duty consideration is how the person
perceives herself.”

Next, the Court addressed the issue of marriage. It held that the term ‘bride’ in Section 5 of the
HMA cannot have a ‘static’ or ‘immutable’ meaning and that statutes must be interpreted in light
of the legal system as it exists today.

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The Court relied on Article 16 of the Universal Declaration of Human Rights on the right to
marry and on the Supreme Court’s decision in Shafin Jahan  v  Asokan K.M. and Ors. where the
right to marry a person of one’s choice was held to be integral to Art. 21 of the Constitution.
 
The Supreme Court of the United States in Obergefell v. Hodges in 2015 guaranteed same-sex
couples the fundamental right to marry. The Supreme Court of India referred to the said
judgment in Justice K. Puttaswamy v Union of India, to hold that the right to privacy applies to
”the decision to enter the relationship that is the foundation of the family in our society”.
In NALSA, the Court pointed out that transgender persons have the right to marry, which falls
squarely within Article 21. Noting the same, the Madras High Court observed that since the
Constitution is an enabling document that invites transgender persons to join the mainstream, it
would be absurd to deny them the benefits of social institutions already in place in the
mainstream. Additionally, since Arunkumar and Sreeja were practicing Hindus who had
solemnized their marriage in a temple, the Court held that the Registrar’s refusal to register their
marriage amounted to infringement of their fundamental right to freely practice their religion
under Article 25 of the Constitution of India. Finally, noticing that Arunkumar was from a
Scheduled Caste, the Court encouraged the couple to submit an application to avail of the Dr.
Ambedkar Scheme for Social Integration through Inter-Caste Marriages.
 
This is the first judgment in India where the right to marry under Article 21 of the constitution
has been affirmed for transgender persons and holding that ‘bride’ under the Hindu Marriage
Act would cover transgender persons who identify as women. The Court affirmed Ms.
Sreeja’s self-identification as a woman and recognised her right to self-identify her gender and
be included, along with other intersex/transgender persons who identify as women, within the
definition of ‘bride’. It noted the violation of her fundamental rights by the State authorities that
refused to register her marriage. 
 
In April 1954 when the proposed Special Marriage Bill was being debated in Rajya Sabha a
Congress MP from Bihar, Tajamul Hussain, raised the question of how the law might deal with
sex change. According to the report in the Times of India (ToI) Hussain asked "if the husband
changed into a woman and the wife into a man what should happen to such a marriage? Would it
become void?"
Hussain’s query was brushed off as irrelevant at that time, but it is not irrelevant today. With
easier availability of medical services for transitioning and greater visibility and acceptance of
transgender people, their marriages too are now happening. Some involve transmen and
transwomen marrying each other, as with Tista Das and Dipan Chakraborty, who married in
Kolkata last year after meeting in a trans legal clinic. Others are cases like that of Lalit Salve,
who transitioned from being Lalita while employed as a police constable in Maharashtra. This
February Salve’s marriage to his wife Seema was announced in Aurangabad.

It is no surprise that something once considered not even worth discussing is now quietly taking
place in India. Marriage matters in India, as we are reminded incessantly by films and TV, by the
wedding industry’s excesses, by print and online matrimonial ads, by the way even perfect

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strangers, leave alone family members, feel able to ask questions about our marital status. And
then there is the quiet courage of those who brave the horrific risks of caste and community
outrage to marry those they love.
Even those who choose to walk away from marriage, like certain unmarried spiritual leaders and
politicians, subtly reinforce the importance of marriage with the implication that they are
sacrificing the fulfilment that, apparently, only marriage can bring, in service to some larger
cause.
So when Ayushmann Khurrana, whose recently released film Shubh Mangal Zyada Savdhan
deals with both same sex relationships and marriage, was interviewed earlier this year it probably
seemed just obvious to say he was proud that same sex marriages had been legalised in India.
Khurrana quickly corrected himself with a tweet saying he wished it would soon happen, but it
does suggest he managed to make the whole film assuming that the Supreme Court’s
decriminalisation of homosexuality in 2018, which features in the film’s climax, automatically
allowed same sex marriage.
Because what would be the point of being able to be openly gay or lesbian in a society like India
which puts such a huge value on marriage and still be unable to get married to the partner of your
choice? Nikesh Usha Pushkaran and Sonu MS, who both live in Kerala, certainly thought that
way. This was why in July 2018, even before the Supreme Court had finished its hearings, they
had gone to Guruvayur Temple and quietly exchanged rings to mark their commitment to each
other But they knew, when the verdict came in September that year, that while it was welcome it
did nothing to make their marriage legal. And since a religiously sanctified and legal marriage
did not seem remotely possible at the moment, they opted for the solution that has been
available, in some form, for Indians since 1872 – a civil marriage under the Special Marriage
Act.

Issue 3.Whether the appellants are entitled the right to have a family or not?
It is humbly submitted before the hon’ble court that the appellants are entitled the right to have a
family as they are also the human beings and part and parcel of the society. The definition of
‘family’ is not a fixed one. Advances in medical techniques and reproductive technology
require the law to adapt and keep pace. Social advances embracing, for example, same-sex
families and the rights of transgender people also require the law to be flexible and evolve
with the times.

Discrimination is not unknown in India when it comes to inclusion of transgender people in

society, especially in terms of employment opportunities and family planning. Consistent efforts
by activists over the past several years, has resulted in the passing of the landmark order by the
Supreme Court, in 2014 in the case of National Legal Services Authority vs. Union of India. The
Court emphasised that discrimination and ill-treatment of the transgender community is common
in India, particularly in sectors such as education and employment and family matters.

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Consequently, the Court recognised the rights of the third gender to life with dignity, which
is enshrined under Article 21 of the Constitution. In an attempt to provide legislative backing
to the recommendations enunciated by the National Legal Services Authority of India, the
Transgender Persons (Protection of Rights) Bill, 2016 has been drafted, and currently awaits
Parliamentary approval to become law.

In 2017, Kerala’s Kochi Metro Rail Limited employed 23 transgender persons, while eight out of
them quit their jobs within a month due to refusal by several landlords to give them
accommodation.

So it is the need of the present scenario to give rights to the transgender to have family.

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Prayer

Wherefore, in the light of facts stated, question presented, arguments advanced and authorities
cited, the hon’ble Supreme Court of India may graciously be pleased to:

 Allow the appeal.

 In the alternative declare and adjudge:

 That the respondant has violated the right of fundamental right of privacy and
right to life and liberty by threatening them.
 That the marriage is valid under the purview of Hindu Marriage Act , 1955.
 And to quash the judgement of Hon’ble Kerala High Court.

And / Or

Pass any other order that it deems fit to this Hon’ble Court in the interest of Justice, Equity and
Good Conscience.

And for this, the Appellant as in duty bound, shall humbly pray.

MEMORANDUM ON BEHALF OF APPELLANT