NATIONAL LAW UNIVERSITY

ODISHA

Personal Law Project

on

Predicament of the Transgender Identities in the Realm of

Family Law: A Conundrum yet to be Resolved

Submitted to: Submitted by:

Ms. Megha Sadhu P. Jahnavi
2018/BA/072

Prajjawal Shrivastav
2018/BA/076

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 ACKNOWLEDGEMENT

At the onset, the authors would like to express their earnest gratefulness and thank their
faculty, Ms. Megha Sadhu for instilling confidence in them and entrusting the task to carry
out a project on this topic. The authors are indeed privileged having being groomed in a
prestigious institution like National Law University Odisha, Cuttack. They would also like to
express their gratitude to their friends for their support and help. Their gratitude also goes out
to the staff and administration of National Law University Odisha, Cuttack for the library
infrastructure and IT lab that was a source of great help for the completion of this project.

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 Table of Contents

Introduction .............................................................................................4
Understanding the Trans Identity ................................................................6
Trans Community & Personal Law .............................................................8
i. Applicability of Marital Law..............................................................8
a) Applicability of Hindu Marriage Act ................................................8
b) Applicability of Muslim Law ..........................................................9
c) Applicability of Special Marriage Act............................................. 10
ii. Applicability of Adoption Law ......................................................... 10
a) Validity of Adoption under Hindu Adoptions and Maintenance Act
[“HAMA”] ....................................................................................... 10
b) Validity of Adoption under Juvenile Justice Act............................... 11
Conclusion & the Way Forward................................................................ 12
Bibliography .......................................................................................... 14

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 Introduction

The term “transgender‟ is derived from two words, namely, “trans‟ and “gender‟. While the
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i Latin term “trans‟ means “across” or “beyond”,1 the term “gender‟ is a complex concept. It
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i forms the core of the problem that grapples within its fold more than 4 million people in
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i India.2 “Gender‟, according to the World Health Organisation, refers to “the socially
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i constructed characteristics of women and men – such as norms, and roles and relationships of
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i and between groups of women and men.”3 Therefore, a transgender is a person who is beyond
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i the socially and culturally defined difference between men and women.
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At the outset, it is very important to understand the concepts of „gender‟ and „gender identity‟
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i in order to understand the transgender identity comprehensively. „Gender‟ refers to the

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i behaviour and characteristics that society expects out of a person on the basis of their
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i assigned, biological sex. However, „gender identity‟ is how that person psychologically
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i perceives his/her gender. It is the way a person desires to express his/her gender through
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i clothes, emotions, appearance or behaviour.4 The gender identity of a person is exclusive of

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i their assigned sex. Thus, a person whose gender identity aligns with his/her assigned sex is
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i called cis-gender. While, a person whose gender identity is in conflict with his/her assigned
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i sex is called a transgender.5

i i i i

Over the course of time, with the growing consciousness about human rights, there has been
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i significant advancement towards ensuring dignity of individual. One such advancement is the
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i recognition or expression of their gender identity. It has been recognised as a fundamental

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i right under right to life,6 however, significant issues pertaining to their human rights still
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i remain unresolved. One such issue is that of personal laws that govern their lives and
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i relationships. Marriage and the right to have a family has been recognised as a fundamental
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1
National Legal Service Authorities v. Union of India [2014] 5 SCC 438
2
Rema Nagarjani, First Count of Third Gender in Census: 4.9 Lakh, The Times of India (May 30, 2014),
<http://timesofindia.indiatimes.com/india/First-count-of-third-genderin-census-4-9-
lakh/articleshow/35741613.cms> accessed 1 May 2021
3
WHO, Gender, Equity and Human Rights, WHO International, <http://www.who.int/gender-equity-
rights/about/en/> accessed 1 May 2021
4
Planned Parenthood, Gender and Gender Identity, Planned Parenthood,
https://www.plannedparenthood.org/learn/sexual-orientation-gender/gender-genderidentity (last visited July 14,
2018)
5
ibid
6
Supra n(1)

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i human right. However, its recognition in both UDHR (ICCPR),7 as well as Indian personal
i i i i i i i i i i i i i

i laws, has remained restricted to man and woman.

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This paper is an attempt to analyse the position of transgender community in the context of
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i application of marriage and adoption laws of India to them. However, a prerequisite to such an
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i analysis necessarily entails an analysis of the unique characteristics of the transgender

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i community in India. Therefore, the paper takes a trajectory starting from analysis of the
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i characteristics of the community, followed by a critical analysis of the laws applicable to them
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i in the status quo, and ends with providing a perspective for the required policy change for
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i improvement of their position in a sui generis manner.

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7
Ms. Juliet Joslin et al. v New Zealand Communication No. 902/1999, U.N. Doc. A/57/40 at 214 (2002)

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 Understanding the Trans Identity i i i

In NALSA v. Union of India8 , the Supreme Court arrived at a classification of the transgender
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i community of India. The Court in the judgment divided the transgender community into two
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i categories. First, those who psychologically identify themselves as belonging to a gender on

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i the opposite end of the spectrum vis-à-vis their assigned sex and prefer to get their sex
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i reassigned. And second, those who are perceived publicly as „third genders‟ and are
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i recognised distinctly as a separate class/category in the subcontinent viz. Hijras, Aravanis,

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i Jogtas, Kothis and Shiv-Shaktis.9 The Court granted the legal status of „third gender/other‟
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i only to the latter category.

i i i i

However, there are caveats attached to such a classification. One such caveat is that the
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i categories are not mutually exclusive of each other.10 Additionally, the criteria relied on by the
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i Court has mostly to do with the specific identities of transgender groups unique to the
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i subcontinent rather than on the kind of conflict between the gender identity and assigned-
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sex.11 This is problematic as all of the people who wish to identify themselves as a „third
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i gender‟ have to necessarily fall into one of the categories that the Court has recognised.
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i However, had there been a classification on the basis of the conflict in the gender identity and
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i assigned sex, any person having gender dysphoria, if they wished to get their sex re-assigned,
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i could have qualified as transsexuals. Whereas, all others who wished to maintain their gender
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i identity as different from the binary genders, could have qualified as a third gender or
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i transgender.

The consequence of such a specific community-identity based recognition of the third gender,
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i as done by the Court, becomes especially problematic in India. These are on account of the
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i fact that the third gender identities in India have a specific culture and are generally
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i ghettoised. Therefore, a person has to necessarily be a part of one of the pigeonholes identified
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i by the Supreme Court and must conform to their norms in order to get the “third-gender‟
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8
Supra n(1)
9
ibid
10
V. Chakrapani, „Hijras, Transgender Women in India: HIV, Human Rights and Social Exclusion‟ UNDP
INDIA (December
2010)<http://www.undp.org/content/dam/india/docs/hijras_transgender_in_india_hiv_human_rights_and_social
_exclusion.pdf> accessed 1 May 2021
11
Supra n(4)

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i recognition. Understandably, the Court committed a folly in classifying the third gender
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i category in pigeonholes.
i i i

Nevertheless, the classification that the Court used to classify the transgender community into
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i “transsexuals‟ and “third genders‟ has some value to the analysis of this community in India.
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i This is on account of the fact that the Court classified the community into two groups
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i according to their desire to identify with their psychological gender identity. First, the people
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i who wish to get their sex reassigned via medical procedures (i.e. “transsexuals‟ or
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i transgenders who wish to come out of their gender dysphoria). And second, those who don‟t
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i wish to identify themselves as either male or female, and wish to maintain their gender
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i identity confirming to one of the identified “third gender‟ community in India.

i i i i i i i i i i i

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 Trans Community & Personal Law i i i i

The Supreme Court in NALSA has recognized the right to a “self – perceived gender identity‟
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i as a fundamental right under right to life.12 However, even after the recognition of their right
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i to identity, there is a considerable amount of ambiguity regarding the applicability of personal

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i laws to transgenders.
i i i

In this section, the position of transgenders is analysed with respect to laws relating to
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i marriage and adoption under Hindu Law, Mohammedan Law (since the majority belongs to
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i these two denominations) and secular law. The secular law for the purposes of this paper
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i constitutes all the personal laws which can be applicable on the parties if they choose to opt
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i out of their religious laws – viz., Special Marriages Act13 for marriage and Juvenile Justice
i i i i i i i i i i i i i i

i Act14 for adoption. i i

i. Applicability of Marital Law i i i

a) Applicability of Hindu Marriage Act i i i i

Section 5 of this Act prescribes the essentials of a Hindu marriage.15 As per this section, two
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i Hindus, one of whom can be identified as bride and other the bridegroom, can solemnize a
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i marriage, unless it is barred by subsection (iii), (iv), and (v) of the section.16 Therefore,
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i transsexuals who have got their sex reassigned in all of their official documents and can
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i legally identify themselves to be female or male, i.e., bride or bridegroom, can get their
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i marriage legally recognised. Such a marriage is also not a subject matter of challenge by a
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i third person , since a petition for nullity of marriage or for divorce can be brought only by the
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i parties to the marriage.17 i i i

For the third gender, as per Section 5 of this Act, only a marriage of a bride and a bridegroom
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i is valid and recognised.18 The terms “bride” and “bridegroom” are gendered terms. It
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12
Supra n(1)
13
Special Marriage Act 1954
14
Juvenile Justice Act 2000
15
The Hindu Marriage Act 1955
16
ibid
17
ibid
18
ibid

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i necessarily translates to “woman” and “man” on their wedding day. Thus, it provides no
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i recognition to marriages for the third gender. i i i i i i

b) Applicability of Muslim Law i i i

The contract of Marriage under Mohammedan Law can be entered into when there is an offer
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i on the part of one party, acceptance on the part of other, and the same is done in the presence
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i of sufficient witnesses.19 Opposite sexes of the contracting parties is also a prerequisite for the
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i marital contract.20 Therefore, so long as a Muslim transsexual is entering into a heterosexual

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i relationship of marriage, their marriage could be recognised and accepted as a valid Muslim
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i marriage. i

However, it can be contested that marriage under Mohammedan Law is defined to be a

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i contract which has the procreation and the legalising of children as its object.21 However, for
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i people who have been operated via SRS, it involves the artificial creation of genitalia of the
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i reassigned sex. As a result, there is no reproductive capacity on the part of the transsexual
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i person contracting marriage.

i i i

Therefore, on a primary requirement that object of such a marriage can never be procreation,
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i Mohammedan Law does not provide for marriage among people who have undergone SRS. i i i i i i i i i i i i

i Therefore, such a deduction leaves the status of marriage of transsexuals ambiguous. It could
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i be argued that the term procreation be given a liberal interpretation and thus, transsexuals
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i must be included as they can procreate via surrogacy. However, surrogacy via IVF is not
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i possible for a transsexual, while traditional surrogacy is prohibited under Mohammedan

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i Law.22

Despite all of this, there could still be a presumption in the favour of the validity of marriage
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i by ignoring the second position that relates to procreation as an object of marriage. This can
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i be done on account of the fact that the object of a contract is not an essential precondition and
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i hence, they cannot be equated. Thus, the marriage must be recognised, even though it doesn‟t
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i serve the object enshrined for it.

i i i i i

19
A.A Fayzee, Outlines Of Mohammedan Law (5th ed., 2009)
20
ibid
21
M. Mulla, Principles Of Mohammedan Law (21st ed., 1990) 250
22
Suketu V. Shah, Issues Of Surrogacy In India, 2 International Journal Of Culture And History 173, 173-177
(2016).

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The essentials required to be fulfilled under Mohammedan Law for a civil contract of marriage
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i just require parties to be of opposite sexes, and not man and woman.23 Hence, so long as the
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i party belonging to the third gender marries someone from the opposite sex, the marriage is
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i valid. Therefore, two parties who belong to third gender, but have different assigned sexes
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i could marry under Mohammedan Law. Similarly, a third gender person could marry a cis-
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gender person so long as they are a heterosexual couple. This has been derived specifically
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i from the textual interpretation of Mohammedan Law in India, as no reported fact-situation

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i depicting conflicts in such an interpretation exist so far.24

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c) Applicability of Special Marriage Act i i i i

Section 4 of this Act prescribes that any male above 21 years of age and any female above 18
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i years of age may solemnize marriage, unless it is prohibited by sub-section (d).25 Thus, a
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i transsexual person‟s marriage with someone from the opposite gender can be registered under
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i this Act, as it is very similar to Hindu Marriage Act. Similar to the Hindu Marriage Act,
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i Section 4 of this Act requires a “male” and a “female” among other conditions to register a
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i marriage.26 Therefore, there is no scope for registration of a marriage for “third gender” under
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i the Special Marriage Act.

i i i

ii. Applicability of Adoption Law i i i

Adoption is one of the forms of relationship that is recognised under the umbrella of family,
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i and thus makes it part of the fundamental right to have a family. Under personal laws, only
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i Hindus were allowed to act as legal parents for the adopted child. No other personal law in
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i India recognised such a right. However, the Juvenile Justice (Care & Protection of Child) Act,
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i 2000, acting as a secular legislation has provided people from any religious denomination to
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i adopt a child. For analysis of the position of transgenders, both the Hindu Act and the secular
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i law are imperative.

i i

a) Validity of Adoption under Hindu Adoptions and Maintenance Act [“HAMA”] i i i i i i i i i

23
Supra n(21)
24
Supra n(19)
25
Supra n(13)
26
Supra n(13)

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Hindu Transsexuals after getting their sex reassigned can validly adopt a child after fulfilling
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i the conditions under Section 7 in case of males and Section 8 in case of females.27 There is no
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i formal scrutiny required for adoptions under HAMA, and transsexuals can validly adopt
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i children privately from their parents.28 However, in case of adoption which doesn‟t involve
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i their natural guardians, there is higher level of scrutiny where the transsexuals have to prove
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i before the court that they are actually eligible, under Section 7 or Section 8 of the HAMA.29
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The HAMA under Sections 7 & 8 recognises a valid adoption only if it is done by a male or
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i female, and thus, third genders are out of the scope of application of this Act.30 Also, by virtue
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i of Sections 4 & 5 of the said Act, adoptions by virtue of the custom of reet in Hijras have been
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i delegitimized, by providing overriding powers to the provisions of the Act over customs.31
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b) Validity of Adoption under Juvenile Justice Act i i i i i i

The Juvenile Justice Act is a secular legislation. Section 41(6) of this Act, is an enabling
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i provision which allows any “person” to adopt a child.32 The term “person” is not gendered. As
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i a result, both male and female transsexuals can adopt a child under this Act. Hence, apart from
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i enabling people from all religious communities to adopt a child, it also allows adoption to
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i happen irrespective of the gender of the parent.Additionally, it also confers the right on the
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i third gender couple to raise a child (if they are recognised as a couple) since they can be
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i classified as a childless couple under the provision.

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27
The Hindu Adoptions and Maintenance Act 1956
28
Supra n(13)
29
Supra n(27)
30
Supra n(13)
31
ibid
32
Supra n(14)

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 Conclusion & the Way Forward i i i i

A vision of the family, which is broad and inclusive and is based on recognising functional
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i aspects of families rather than their form, that is, what families do rather than what families
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i look like, would serve as a useful template when lawmakers are drafting legislations that
i i i i i i i i i i i i i

i regulate intimacy and dependency. Recognising that families are diverse, complex, and
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i dynamic means providing individuals with the freedom to nominate/designate their

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i beneficiaries wherever possible and not assuming ties of blood and conjugality as the only
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i relevant ones. In addition, it would also involve closely evaluating factors of economic and
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i emotional interdependence and interpreting them flexibly depending on the legislative

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i objective and situation. For instance, in some situations, co-habitation and duration of the
i i i i i i i i i i i i

i relationship could be a relevant factor, but in other cases, it may not matter. Hence,
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i maintaining flexibility as opposed to pursuing a one-size fits all policy is essential and could
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i in the future, legitimise families of choice.33

i i i i i i

The Supreme Court in NALSA v. Union of India34 , recognized the trauma and oppression
i i i i i i i i i i i i i

i faced by the transgender community in India. As a result, it laid down that the transgender
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i community must be treated with dignity. The Court recognized that the expression of one‟s
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i own gender identity is an integral part of one‟s dignity. Therefore, it held that expression of
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i one‟s gender identity is a vital part of their fundamental right to life and freedom of
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i expression.

However, the Court fell short in elevating the rights of the transgender community to be at par
i i i i i i i i i i i i i i i i

i with all the citizens. The Court remarkably failed to ensure the protection of Article 14 to the
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i transgender community. Simply put, the Court didn‟t recognize the principle of “equality
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i before law” and “equal protection of law” to be applicable to the transgender community vis-
i i i i i i i i i i i i i i

à-vis other citizens. This is evident as the fundamental right to have a family is not ensured to
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i the transgender community on account of the gendered nature of the personal laws.
i i i i i i i i i i i i

Arguably, it could be said that on account of State of Bombay v. Narasu Appa Mali35 , the
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i personal laws are not subject to scrutiny under Part III of the Constitution of India. And
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i therefore, the Court couldn‟t have done much. However, it is pertinent to note that the Narasu
i i i i i i i i i i i i i i i

33
Arijeet Ghosh, Dikshya Sanyal, "How can Families be Imagined beyond Kinship & Marriage?" 54(45) EPW
November 2019
34
Supra n(1)
35
State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84

12 | P a g e
i judgment limited the judicial review of personal laws to only those laws that owe their origin
i i i i i i i i i i i i i i i

i to scriptures. As a result, the Court could have very well interpreted the gendered terms in the
i i i i i i i i i i i i i i i i

i secular statutes to make them equally applicable to transgender persons vis-à-vis other
i i i i i i i i i i i

i citizens.

The Court left it for the legislature to ensure that equal rights are ensured to the transgender
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i community. The legislature, soon after the judgment, came up with a Transgender Persons
i i i i i i i i i i i i

i (Protection of Rights) Act, 2019.36 However, the Bill lacked any provisions that would confer
i i i i i i i i i i i i i

i any rights to the transgender persons, relating to starting a family. Moreover, the Bill too had a
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i number of problematic provisions which would even reduce the rights that were granted to
i i i i i i i i i i i i i

i them by the Court in NALSA.

i i i i i i

As a result, it becomes clear that the legislature cannot be the saviour that ensures rights to the
i i i i i i i i i i i i i i i i i

i community. This is on account of the fact that there will always be a lack of political will in
i i i i i i i i i i i i i i i i i i

i the legislature to ensure equal rights to the community. Therefore, the reform that ensures
i i i i i i i i i i i i i

i equality before law, and by extension „fundamental right to have a family‟ to the transgender
i i i i i i i i i i i i i i

i community, has to come from the Judiciary. Understandably, the curative petition regarding
i i i i i i i i i i i

i the decriminalisation of S. 377 of the IPC, 1860 is being heard by the Court. And if it is
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i decriminalised, it would be a harbinger of rights to the community. However, that seems to be

i i i i i i i i i i i i i i i

i a distant goal currently.

i i i i

Therefore, given the current regime, the suggestion to give limited application to Yogyakarta
i i i i i i i i i i i i

i Principles is a feasible one. It ensures the transgender persons to at least have minimum rights
i i i i i i i i i i i i i i i

i that can be provided to the community by legitimising adoption of children for them. It is time
i i i i i i i i i i i i i i i i

i that an appropriate order be passed in accordance with the Yogyakarta Principles in order to
i i i i i i i i i i i i i i

i alleviate this community and emancipate them from the regime that has restricted their rights
i i i i i i i i i i i i i

i for more than a 100 years.

i i i i i

36
Transgender Persons (Protection of Rights) Act, 2019

13 | P a g e
 Bibliography

Cases

Ms. Juliet Joslin et al. v New Communication No. 5

Zealand 902/1999, U.N. Doc.
A/57/40 at 214 (2002)
National Legal Service [2014] 5 SCC 438 4
Authorities v. Union of India
State of Bombay v. Narasu AIR 1952 Bom 84 12
Appa Mali

Statutes

Juvenile Justice Act 2000 8

Special Marriage Act 1954 8
The Hindu Adoptions and 1956 11
Maintenance Act
The Hindu Marriage Act 1955 8
Transgender Persons 2019 13
(Protection of Rights) Act

Books

A.A Fayzee Outlines Of (5th ed., 2009) 9

Mohammedan Law
M. Mulla Principles Of (21st ed., 1990) 9
Mohammedan Law

Articles

Arijeet Ghosh, "How can Families 54(45) EPW 12

Dikshya Sanyal be Imagined beyond November 2019
Kinship &
Marriage?"

14 | P a g e
Planned Parenthood Gender and Gender Planned Parenthood 4
Identity
Rema Nagarjani First Count of Third The Times of India 4
Gender in Census: (May 30, 2014)
4.9 Lakh
Suketu V. Shah Issues Of Surrogacy 2 International 9
In India Journal Of Culture
And History 173,
173-177 (2016).
V. Chakrapani „Hijras, Transgender UNDP INDIA 6
Women in India: (December 2010)
HIV, Human Rights
and Social
Exclusion‟
WHO Gender, Equity and WHO International 4
Human Rights

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