IN THE HON’BLE SUPREME COURT OF INDIA

APPEAL NO. ___ Of 2020

IN THE MATTER BETWEEN

Reeta and Geeta APPEALLANTS

V.
Union of India RESPONDENTS

MEMORIAL ON BEHALF OF Appellant

[This Memorandum has been prepared for Appellant: Reeta and Geeta ]

Most Respectfully Submitted to the Hon’ble

Supreme Court of India

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CONTENTS
a) List of abbreviations

b) List of Authorities

c) Statement of Facts

d) Statement of jurisdiction

e) Argument presented

f) Summary of Arguments

g) Argument in Advanced

h) Prayer

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LIST OF ABERRATION
Art..................................................................................................... Article

AIR.....................................................................................................All India record

Const. ............................................................................................... constitution

Dr. ............................................................................................... Doctor

Eq. ..................................................................................................... equality

Ind..................................................................................................... India

HC....................................................................................................High court

HMA................................................................................................Hindu marriage Act

Sec. .................................................................................................section

SC...................................................................................................Supreme court

V....................................................................................................verses

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LIST OF AUTHORITIES
STATUES
• The Hindu Marriage Act, 1955
• Indian Constitution
• The Indian Evidence Act, 1872

JUDICIAL DECISION
• NALSA v Union of India [(2014) 5 SCC 438]
• Arunkumar and Another. v The Inspector General of Registration and Ors.
• Safin Jahan v Asokan K.M. and Ors
• National Legal Services Authority (NALSA) v. Union of India
• justice k. Puttaswamy v. Union of India

TEXT BOOK
• The principles of hindu law ................ Dr. Paras diwan
• Hindu law..................... Dr. R.K Agarwal

WEBSITES
www.legalservice.com
www.heleaflettransgendershavemarriagerightsundertheindianconstitutionsays-
madrashighcourt.com
www.thehill.transgender.com
www.lawtaxes.transgenders.com

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STATEMENT OF FACTS

Reeta and Geeta are two transgenders . Reeta was born male and she identify herself
as a female. Geeta had undergone Sex reassignment surgery. Both are live in remote
area of perinthlalmana with other transgender. Reeta was abounded by her parents
when she turned at the age of 12 and face many problems and discrimination by her
friends and family. Geeta run away from her house due to her effeminate behaviour
and constant discrimination. Both found a safe refuge after encountering Laxmi in
a renowned transgender area in perinthlalmana. Both are living here in an house
named Prakriti lat 10 years. Both fall in love with each other and start spending some
quality time and watching movies, shopping discreetly without knowing anyone.
Geeta family found her by some relatives who seen her in vegetable market. They
decide to visit her. They found that she had undergone SRC and have relation with
Reeta , they got provoked and a scuffle broke out between Geeta family and friends.
They got some threatened to face dire consequences by Reeta family. After this both
are decide to finalize their marriage plan. Reeta's uncle Shayamu who is welwisher
for Reeta. They told their marriage plan to Shyamu, he was surprised but to help her
out. After hearing scuffle incident, Shyamu went perinthlalmana police station with
them and ask to protection for Reeta and Geeta. After two weeks they got married at
Guruvyar temple with Hindu rituals and ceremonies. Some photos of marriage
become viral .they started harras and got threatened by an organisation named
Kutumba alleged that they were violating the institution of marriage and they
claimed that transgender cannot tie the manglasutra . After that Kutumba approach
to HC for nullification of the marriage. After hearing the matter, HC said that
marriage cannot nullify on the ground which connoted by appellant but it declared
null on the ground of definition of bridegroom. Kutumba celebrate verdict b,
aggrieved by the judgement Reeta and Geeta decide to go in appeal before SC

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 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has jurisdiction to hear the instant matter under
Article 136 of the Constitution of India.
Article 136 of the Constitution reads as follows:
“136. Special leave to appeal by the Supreme Court-
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal
in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any

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ARGUMENTS PRESENTED

1. Whether this suit is maintainable ?

2. Whether marriage between parties is valid?

3. Is there any violation of fundamental right of appellant ?

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 SUMMARY OF ARGUMENT

1. WHETHER THIS SUIT IS MAINTAINABLE ?

It is humble contened before the hon’ble cour that the present petition is
maintainble under Art. 136 of the constitution of India. In the present case , the case
move from High Court to Supreme court which is an correct order.

2. WHETHER MARRIAGE BETWEEN PARTIES IS VALID ?

Yes, the marriage between the parties is valid according to Hindu law . In the Hindu
marriage Act, 1955 “Sec 5 said that the bridegroom has completed the age of twenty
one years and the bride the age of eighteen years at the time of the marriage”. Section
5 of the Hindu Marriage Act which provides the conditions for a Hindu Marriage,
refers to “the party” as “bridegroom” and “bride” and makes no specific mention of
the gender. So the marriage between Reeta and Geeta is valid.

3 .IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHTS OF

APPEALNTS?
There is violation of Right to equality under Art. 14 and Right to life and personal
liberty and also right to privacy under Art. 21 of the Indian Constitution. Article 14
of the Constitution of India which affirms that the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of
India. But here transgender are treated with a differentiate behaviour. They are
discriminate in the basis of gender.

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 ARGUMENT ADVANCED

1. WHETHER THIS SUIT IS MAINTABLE ?

The Art. 136 of the constitution of India deal with special leave petition and this
suit is filed under the Art.136 of the constitution. The Constitution of India under
Article 136 vests the Supreme Court of India with a special power to grant special
leave to appeal against any judgment or order or decree in any matter or cause passed
or made by any Court/tribunal in the territory of India. This is special power
bestowed upon the Supreme Court of India which is the Apex Court of the country
to grant leave to appeal against any judgment in case any substantial constitutional
question of law is involved or gross injustice has been done. “Special leave petition”
or SLP hold a prime place in the Indian judicial system. It provides the aggrieved
party a special permission to be heard in Apex court in appeal against any judgment
or order of any Court/tribunal in the territory of India. So this case also be heard
under the SLP to relief the aggrieved party.

2. WHETHER THE MARRIAGE IS VALID?

Yes , the marriage between Reeta and Geeta is valid. In old Hindu law, We also see
that marriage between transgender was soleminized. Since the ancient era, Vedic
and Puranic literature have recognized the presence of three genders, viz.
heterosexual male, heterosexual female and the tritiya prakriti or the third sex. In
Hindu culture, third gender also had a social status , they have all social rights. In
Kamasutra, the marriage of trangenders were also mentioned. Now in Hindu
marriage act, 1955 ,the condition of valid marriage given under sec 5.
Section 5 in The Hindu Marriage Act, 1955
The following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of unsoundness of
mind; or
(b) though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and the
procreation of children; or
(c) has been subject to recurrent attacks of insanity

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(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the
age of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing
each of them permits of a marriage between the two;

After reading carefully sec 5, there is no specific meaning of term bride and
bridegroom, sec 5 not clearly mentioned about the bride and bridegroom. Only the
age of parties are mentioned here which is fulfilled by newly coupled. The Court
rejected the State’s contention that a transgender woman could not be viewed as a
“Bride” under Section 5 and held that, “the expression “bride” occurring in Section
5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning. The
court is free to apply the current meaning of a statute to present day continue. 1 The
court also said in the marriage of Arun umar 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.2
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. 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 where the right to marry a person of one’s choice was
held to be integral to Article 21 of the Constitution.3
This marriage is consider valid by Hindu marriage act , 1955 because there is no
specific mention about the definition of bride under the Act. The act is also based on
old Hindu custom in which transgender also have right to marriage , and we also see
the same sex marriage in old Hindu law.

1
. NALSA v Union of India [(2014) 5 SCC 438]
2
Arunkumar and Another. v The Inspector General of Registration and Ors.
3
Shafin Jahan v Asokan K.M. and Ors

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 3. IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHTS OF
NEWLY COUPLED?
“Discrimination on the ground of sexual orientation or gender identity, therefore,
impairs equality before the law and equal protection of the law and violates Article
14 of the Constitution of India,” the judgment adds. The court was also of the view
that Article 19(1)(a) and Article 21 of the Constitution should be expansively
interpreted to encompass gender identity. Article 19(1)(a) aims to ensure the
freedom of speech and expression while Article 21 guarantees the “protection of life
and personal liberty.”4 The Supreme Court of the United States guaranteed about
the same-sex couples the fundamental right to marry. The Supreme Court of India
referred to the said judgment 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”5
The transgender group face many type of discrimination in the society. Society are
doing a strange behaviour with them. As the constitution of India gave equal right
to all without any discrimination on the basis of gender , race , sex etc. But here the
judgement declared by the HC had a discriminate nature. The marriage which is
declared invalid on the basis of gender is the violation of Art.14 and Art. 21 of the
constitution. Sec 5 does not have any type of condition which is not fulfilled by them.
The sec 5 said that marriage shall be complete between 2 Hindus . There is no
mention about an specific type of gender under sec 5 of the Hindu marriage Act,
1955. Beside that, if the court declared marriage invalid then it was directly violation
of Art 14 and Art 21 ( right to marry is infringe).

4
National Legal Services Authority (NALSA) v. Union of India
5 justice k. Puttaswamy v. Union of India

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PRAYER

Wherefore in the light of arguments advanced and authorities cited, the Appellant
humbly submits that the Hon’ble Court may be pleased to adjudge and:
1. That the High Court decision was incorrect .
2. This suit is maintainable under Article 136.
3. The marriage between Reeta and Geeta is valid which declared invalid by
High court.
4. Make some remedies to Appellant on the infringe of their fundamental rights
of Art.14 and 21.

Any other order as it deems fit in the interest of Justice, Equity and good Conscience

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

The Appellant

SD/-

……………………

(Counsel for the Appellant)

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