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Arunkumar vs The Inspector General Of … on 22 April, 2019



DATED : 22.04.2019



WP(MD)No.4125 of 2019
WMP(MD)No.3220 of 2019


2.Sreeja … Petitioners
1.The Inspector General of Registration,
No.100, Santhome High Road,
Chennai – 600 028.

2.The District Registrar, Tuticorin District.

3.The Joint Registrar No.II,
O/o.Joint Registrar No.II, Tuticorin District.

4.The Secretary to Government,
Health and Family Welfare Department,
Government of Tamil Nadu.

5.The Director, Ambedkar Foundation,
(an autonomous Body under the Ministry
of Social Justice and Empowerment),
15, Janapath, New Delhi – 110 001. … Respondents

(4th and 5th respondents are suo motu
impleaded vide court order dated 29.03.2019)

PRAYER : Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the
records pertaining to the order of proceedings of the third respondent
in No.1/2018 Na.Ka.No.187/2018 dated 16.11.2018 and the order of
proceedings of the second respondent in Na.Ka.No.5876/E2/2018
dated 28.12.2018 and quash the same as illegal and consequently
directing the respondents to register the marriage which took place
on Arulmighu Shangara Rameswara Temple, Tuticorin dated
For petitioners : Mrs.Sivasankari
for Mr.M.Krishnaveni
For Respondents 1 to 3 : Mr.M.Murugan,
Government Advocate


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.

2.Let us start with the facts first. The first petitioner

Shri.Arunkumar got married to the second petitioner Ms.Srija on

31.10.2018 at Arulmighu Sankara Rameswara Temple, Tuticorin as

per Hindu rites and customs. The village administrative officer has

certified that this marriage was in fact performed and that it was not a

bigamous one for either. The temple authorities though permitted the

performance of the marriage declined to vouch for it. When the

parties submitted a memorandum for registration of marriage under

Rule 5 (1) (a) of the Tamil Nadu Registration of Marriages Rules in

Form I before the third respondent, the third respondent refused to

register the same. Questioning the said decision taken by the third

respondent vide proceedings dated 16.11.2018, the petitioners

herein filed an appeal before the second respondent. The second

respondent also vide proceedings in Na.Ka.No.5876/E2/2018 dated

28.12.2018 confirmed the decision of the third respondent.

Challenging the refusal to register their marriage, the petitioners have

filed this writ petition.

3.The learned Government Advocate appearing for the

respondents 1 to 3 submitted that Section 7 of the Tamil Nadu

Registration of Marriages Act, 2009 confers power to the Registrar of

Marriages to refuse registration. He could do so if he is satisfied that

the marriage between the parties was not performed in accordance

with the personal laws of the parties, any custom or usage or

tradition. As per Section 7 (1) (c) of the Act, if the documents

tendered before the Registrar of Marriages do not prove the marriage

status of the parties, he can refuse to register the marriage. In this

case, the authorities of the temple, where the marriage between the

parties was said to have been solemnized, had not issued any

certificate indicating the performance of the marriage. He further

contended that as per Section 5 of the Hindu Marriage Act, the

bridegroom must have completed the age of 21 years while the bride

must have completed the age of 18 years at the time of marriage. To

understand the meaning of expression “bride’, in the order impugned

in this writ petition, Oxford Advance Learner’s Dictionary of Current

English was referred to. The term “Bride” can only refer to a

“Woman on her wedding day”. In the case on hand, the second

petitioner Srija is a transgender and not a woman. Thus the statutory

requirement set out in Section 5 of the Hindu Marriage Act, 1955 has

not been fulfilled. Therefore, the learned Government Advocate

wanted this Court to sustain the orders impugned in this writ petition

and dismiss the writ petition.

4.I am unable to agree with the stand of the learned

Government Advocate appearing for the respondents 1 to 3. As

rightly pointed out by the learned counsel appearing for the writ

petitioner, the issue on hand is no longer res integra. In the decision

reported in (2014) 5 SCC 438 (National Legal Services Authority

vs. Union of India), the Hon’ble Supreme Court upheld the

transgender persons’ right to decide their self identified gender. The

central and State governments were directed to grant legal

recognition of their gender identity such as male, female or third

gender. This path breaking judgment has been cited with approval

in the Nine Judges Bench of the Hon’ble Supreme Court in the

decision reported in (2017) 10 SCC 1 (Justice K.S.Puttaswamy vs.

Union of India) and again by the Constitution Bench in the decision

reported in (2018) 10 SCC 1 (Navtej Singh Johar vs. Union of


5.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 Devdutt Pattanaik in 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.

6.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.

7.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’ :

The self also has a sex: You think of yourself as

male or female and expect others to treat you as
such. It is such an ingrained aspect of your self-
identity that you hardly ever pause to think about it-
until 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

Scientists have shown that during fetal
development, different aspects of sexuality are set in
motion in parallel: sexual morphology (external

anatomy), 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.

I am using the words “norma” and “deviation”
here only in the statistical sense relative to the overall
human population. I do not mean to imply that these
ways of being are undesirable or perverse. Many
transsexuals have told me that they would rather
have surgery than be “cured” of their desire. If this
seems strange, think of intense but unrequited
romantic love. Would you request that your desire be
removed? There is no simple answer.”

8.Sex and gender are not one and the same. A person’s sex is

biologically determined at the time of birth. Not so in the case of

gender. That is why after making an exhaustive reference to the

human rights jurisprudence worldwide in this regard, the Hon’ble

Supreme Court held that 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

would apply to transgenders also. Transgender persons who are

neither male/female fall within the expression “person” and hence

entitled to legal protection of laws in all spheres of State activity as

enjoyed by any other citizen of this country. Discrimination on the

ground of sexual orientation or gender identity, therefore, impairs

equality before law and equal protection of law and violates Article 14

of the Constitution of India. (Vide Para Nos.61 and 62 of the NLSA

case). Article 19(1)(a) and Article 21 were expansively intrepreted so

as to encompass one’s gender identity also. The following

observations are particularly relevant :

“72.Gender identity, therefore, lies at the core of
one’s personal identity, gender expression and
presentation and, therefore, it will have to be
protected Under Article 19(1)(a) of the Constitution of
India. A transgender’s personality could be expressed
by the transgender’s behavior and presentation. State
cannot prohibit, restrict or interfere with a
transgender’s expression of such personality, which

reflects that inherent personality. Often the State and
its authorities either due to ignorance or otherwise fail
to digest the innate character and identity of such
persons. We, therefore, hold that values of privacy,
self-identity, autonomy and personal integrity are
fundamental rights guaranteed to members of the
transgender community Under Article 19(1)(a) of the
Constitution of India and the State is bound to protect
and recognize those rights.

73…… Article 21 protects the dignity of human
life, one’s personal autonomy, one’s right to privacy,
etc. Right to dignity has been recognized to be an
essential part of the right to life and accrues to all
persons on account of being humans. …..

74.Recognition of one’s gender identity lies at
the heart of the fundamental right to dignity. Gender,
as already indicated, constitutes the core of one’s
sense of being as well as an integral part of a
person’s identity. Legal recognition of gender identity
is, therefore, part of right to dignity and freedom
guaranteed under our Constitution.

75….Self-determination of gender is an integral
part of personal autonomy and self-expression and
falls within the realm of personal liberty guaranteed

Under Article 21 of the Constitution of India.”

9.In the case on hand, the second petitioner herein has chosen

to express her gender identity as that of a woman. As held by the

Hon’ble Supreme Court this falls within the domain of her personal

autonomy and involves her right to privacy and dignity. It is not for

the State authorities to question this self determination of the second

petitioner herein.

10.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. A statute must be interpreted in the light of the legal

system as it exists today. Article 16 of the Universal Declaration of

Human Rights reads as under :

“Article 16.(1) 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.

(2)Marriage shall be entered into only with the
free and full consent of the intending spouses.

(3)The family is the natural and fundamental group unit of

society and is entitled to protection by society and the


In (2018) 16 SCC 368 (Shafin Jahan vs. Asokan K.M. and Ors), the

right to marry a person of one’s choice was held to be integral to

Article 21 of the Constitution of India.

11.In (2017) 10 SCC 1 (Justice K.S.Puttaswamy vs. Uniona

of India), the Hon’ble Supreme Court after referring to the legal

position obtaining in USA, held as follows :

“194.In Obergefell v. Hodges 576 US – (2015),
the Court held in a 5:4 decision that the fundamental
right to marry is guaranteed to same-sex couples by
both the Due Process Clause and the Equal Protection
Clause of the Fourteenth Amendment. Justice
Kennedy authored the majority opinion (joined by
Justices Ginsburg, Breyer, Sotamayor and Kagan):

Indeed, the Court has noted it would be
contradictory to recognize a right of privacy with
respect to other matters of family life and not with

respect to the decision to enter the relationship that is
the foundation of the family in our society.”

12.In NLSA Case also, the right of the transgender person to

marry was recognised. Paragraph No.119 of the said Judgment

read as follows :

“119.Therefore, gender identification becomes very
essential component which is required for enjoying civil
rights by this community. It is only with this recognition
that many rights attached to the sexual recognition as
‘third gender’ would be available to this community more
meaningfully viz. the right to vote, the right to own
property, the right to marry, the right to claim a formal
identity through a passport and a ration card, a driver’s
license, the right to education, employment, health so

13.For too long, the transgender persons/intersex people have

been languishing in the margins. The Constitution of India is an

enabling document. It is inviting them to join the mainstream.

Therefore, it would be absurd to deny the transgenders the benefit of

the social institutions already in place in the mainstream. In

Karnataka, Akkai Padmashali, a transgender activist could officially

register her marriage with V.Vasudev and receive the certificate in

the matter of few hours in January, 2017. V.Vasudev who is also is

working with LGBTQI+ activists stated that they do not see Akkai as

a transwoman but as a woman. But in State of Tamil Nadu which

has been lauded and praised by the Supreme Court for its

progressive measures in the NLSA judgement, there is a refusal by

the authorities to recognise the validity of the marriage that has taken

place between the petitioners herein.

14.Both the petitioners herein profess Hindu Religion. Their

right to practice Hindu Religion is recognised under Article 25 of the

Constitution of India. The Hindu Marriage Act is a personal law of

the Hindus. When the right of the transgender persons to marry has

been upheld by the Hon’ble Supreme Court, in the very nature of

things, they cannot be kept out of the purview of the Hindu Marriage

Act. One can have a civil marriage. One can also have a

sacramental marriage. The petitioners’ marriage was solemnized in

a temple. Therefore, their fundamental right under Article 25 has

also been infringed in this case.

15.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 only consideration is how the

person perceives herself.

16.This Court must at this juncture place on record its gratitude

to the intersex activist Gopi Shankar of Madurai. This Court had

occasion to come across his work and it has been a humbling and

enlightening experience. Beyond the man-woman binary, there are

as many as 58 gender variants. Of course, we use the expression

“transgender” as an umbrella term. When a child is born it is usually

endowed with male genitalia or female genitalia. But there are

children who are born with a genitalia that belongs to neither

category. They are known as intersex children. They must be

given their time and space to find their true gender identity. But the

parents make the infant undergo sex reassignment surgery (SRS).

When Gopi Shankar took up the matter with NHRC, it forwarded the

complaint to the Health Ministry. The reply from the Health Ministry

makes a strange reading. It is worthwhile to extract it verbatim. It

reads as under :

Government of India
Ministry of Health F.W
Directorate General of Health Services

Nirman Bhawan,
New Delhi – 110 108
Dated : 25.01.2017
Shri Gopi Shankar M
Executive Director,
Srishti Madurai Student Volunteer Educational
Research Foundation,
Sri SaradaDham, Plot No.2, 4/413-A,
Bama Nagar, 2nd Street, Thapal Thanthi Nagar,
Madurai – 625017.

Subject : Requesting the NHRC to ban the
forced sex selective surgeries medical abuse on
Intersex babies in India to recognise Intersex
people’s fundamental rights in India.


I am directed to refer to your letter dated
07.11.2016 addressed to the Chairman, NHRC on the
above noted subject and to convey that so far as your
concerns regarding health are concerned, the medical
fraternity is well aware of the existence of Intersex
persons in the community as they study this subject as
part of medical curriculum. Also, any kind of invasive
medical procedure including sex reassignment
surgeries are done only after thorough assessment of
the patient, obtaining justification for the procedure
planned to be conducted with the help of appropriate
diagnostic test and only after taking a written consent of
the patient/guardian. Further, medical fraternity is
bound to provide medical services to all without any
discrimination on any grounds whatsoever.

Any isolated case regarding lack of awareness,
discrimination by a medical practitioner or
unscrupulous act on the part of a medical
practitioner may be brought to the notice of the
appropriate authorities of the respective State
Government for necessary action.

Rest of the issues raised in the representation
are largely social in nature and may be taken up

with the Ministry of Social Justice Empowerment.

Yours faithfully,

(Dr.Anil Sain)
Addl.Deputy Director General (AS)”

17.The consent of the parent cannot be considered as the

consent of the child. Justice K.Chandru in the decision reported in

(2007) 2 CTC 97 observed as follows :

“35.Ultimately, neither the father nor the mother can
claim suzerainty over the child and in the ultimate
analysis, the children are not the children of their parents.
The said situation has been beautifully portrayed by
Kahlil Gibran on The Prophet [Rupa Co : 17th Edition :
“Your children are not your children.
They are the sons and daughters of Life’s
longing for itself.

They come through you but not from you,
And though they are with you yet they belong
not to you.

You may give them your love but not your
For they have their own thoughts.

You may house their bodies but not their souls,

For their souls dwell in the house of tomorrow,
which you cannot visit, not even in your

You may strive to be like them, but seek not to
make them like you.

For life goes not backward nor tarries with

You are the bows from which your children as
living arrows are sent forth.

Let your bending in the Archer’s hand be for

18.The World Health Organization has published a report titled

“Sexual Health, Human Rights and the Law”. It calls for a deferment

of intersex genital mutilation (IGM) until the intersex persons are old

enough to make decisions for themselves. The following extract from

the said report would speak for itself :

“Intersex people may face discrimination and
stigma in the health system, in many cases being
subjected to lack of quality of care, institutional
violence and forced interventions throughout their

A major concern for intersex people is that so-

called sex normalizing procedures are often

undertaken during their infancy and childhood, to
alter their bodies, particularly the sexual organs, to
make them conform to gendered physical norms,
including through repeated surgeries, hormonal
interventions and other measures. As a result, such
children may be subjected to medically
unnecessary, often irreversible, interventions that
may have lifelong consequences for their physical
and mental health, including irreversible termination
of all or some of their reproductive and sexual
capacity. Medical procedures may sometimes be
justified in cases of conditions that pose a health
risk or are considered life-threatening. Such
procedures, however, are sometimes proposed on
the basis of weak evidence, without discussing and
considering alternative solutions….

Increasingly, concerns are being raised by
intersex people, their caregivers, medical
professionals and human rights bodies that these
interventions often take place without the informed
consent of the children involved and/or without even
seeking the informed consent of their parents…….
Parents often consent to medical intervention for
their children in circumstances where full
information is lacking and without any discussion of


According to human rights standards, intersex
persons should be able to access health services
on the same basis as others, free from coercion,
discrimination and violence…..Human rights bodies
and ethical and health professional organizations
have recommended that free and informed consent
should be ensured in medical interventions for
people with intersex conditions, including full
information, orally and in writing, on the suggested
treatment, its justification and alternatives…

These organizations have also recommended
that medical and psychological professionals should
be educated and trained about physical, biological
and sexual diversity and integrity, and that they
should properly inform patients and their parents of
the consequences of surgical and other medical
interventions and provide additional support… It has
also been recommended that investigation should
be undertaken into incidents of surgical and other
medical treatment of intersex people without
informed consent and that legal provisions should
be adopted in order to provide remedies and
redress to the victims of such treatment….”

19.In fact, the Hon’ble Supreme Court in NLSA case

categorically stated that no one shall be forced to undergo medical

procedures, including SRS, sterilisation or hormonal theraphy, as a

requirement for legal recognition of their gender identity. But, what

is happening in reality is more in breach of this judgement given by

the Hon’ble Supreme Court. Article 39 (f) of the Constitution of India

reads as follows :

The State shall, in particular, direct its policy
towards securing that children are given
opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity
and that childhood and youth are protected
against exploitation and against moral and
material abandonment.

20.Since it has come to the notice of this Court that the

mandate issued by the Hon’ble Supreme Court is not being

honoured, this Court has to necessarily direct the Government of

Tamilnadu to issue a Government Order enshrining the aforesaid

mandate of the Hon’ble Supreme Court so as to effectively ban sex

reassignment surgeries on intersex infants and children. The fourth

respondent is directed to file a compliance report before the Registry

within a period of eight weeks from the date of receipt of a copy of

this order.

21.Any intersex child is entitled to and must stay within the

folds of its family. The running away from the family to the margins

and beyond is a fatal journey that must be arrested. Time has come

when they are brought back from the margins into the mainstream.

This is because even though the transgender community is having its

own social institutions, the stories we hear are horrendous. The

parents must be encouraged to feel that the birth of an intersex child

is not a matter of embarrassment or shame. It lies in the hands of

the Government to launch a sustained awareness campaign in this

regard. Recent Tamil Films such as “Peranbu” where Mamooty

marries a transgender and “Super Delux” where Vijay Sethupathi

plays the role of a transgender and is also a parent to the child he

has fathered are encouraging trends.

22.It may not be out of place to mention here that the State of

Malta has enacted the Gender Identity, Gender Expression and Sex

Characteristics Act, 2015. In the said Statute the following

definitions can be seen :

“gender expression” refers to each person’s
manifestation of their gender identity, and/or the
one that is perceived by others;

“gender identity” refers to each person’s
internal and individual experience of gender,
which may or may not correspond with the sex
assigned at birth, including the personal sense of
the body (which may involve, if freely chosen,
modification of bodily appearance and/ or
functions by medical, surgical or other means)
and other expressions of gender, including name,
dress, speech and mannerisms;

“gender marker” refers to the identifier which
classifies persons within a particular sex

Section 3 (1) confers the right to gender identity and is as follows :

“3.(1) All persons being citizens of Malta have
the right to – (a) the recognition of their gender
identity; (b) the free development of their person
according to their gender identity; (c) be treated
according to their gender identity and, particularly,
to be identified in that way in the documents

providing their identity therein; and (d) bodily
integrity and physical autonomy…..

(3)The gender identity of the individual shall
be respected at all times.

(4)The person shall not be required to provide
proof of a surgical procedure for total or partial
genital reassignment, hormonal therapies or any
other psychiatric, psychological or medical
treatment to make use of the right to gender

23.There is yet another aspect of the matter. Arunkumar, the

first petitioner is a Hindu Kuravan. It is a notified scheduled caste

community. The second petitioner belongs to Saiva Vellalar

community. The Government of India has introduced a scheme

known as Dr.Ambedkar Scheme for Social Integration through Inter-

Caste Marriages to encourage intercaste marriages. As observed by

Dr.B.R.Ambedkar in his speech in the Constituent Assembly

delivered on 25th November, 1949 castes are antinational. Intercaste

marriages alone will ultimately lead to social integration and fulfill the

preambular promise of fraternity. The petitioners are clearly entitled

to get financial incentive as set out in the said scheme. The

petitioners are permitted to submit an application to the fifth

respondent who shall on being satisfied about the eligibility of the

petitioners disburse the incentive amount to them.

24.The second petitioner appears to have been an intersex

person at birth. In the affidavit filed in support of this writ petition, it

has been mentioned that she was assigned as a female at birth.

But, in the school records, the second petitioner has been described

as a male by name Manthiramoorthy. In the Aadhar Card, her

gender has been mentioned as “T” (Third Gender). A person who is

in the Third Category is entitled to remain beyond the duality of

male/female or opt to identify oneself as male or female. It is

entirely the choice of the individual concerned.

25.Since this Court has held that the fundamental rights of the

second petitioner guaranteed under Articles 14, 19(1)(a), 21 and 25

of the Constitution of India have been infringed, the orders impugned

in this writ petition stand quashed and the third respondent is

directed to register the marriage solemnized between the petitioners

on 31.10.2018 at Arulmighu Sankara Rameswara Temple, Tuticorin.

The fourth respondent is directed to issue a G.O prohibiting the

performance of sex reassignment surgery on intersex infants and


26.This writ petition stands allowed. No costs. Consequently,

connected miscellaneous petition is closed.


Index : Yes / No
Internet : Yes / No


1.The Inspector General of Registration,
No.100, Santhome High Road,
Chennai – 600 028.

2.The District Registrar,
Tuticorin District.

3.The Joint Registrar No.II,
O/o.Joint Registrar No.II,
Tuticorin District.



WP(MD)No.4125 of 2019
WMP(MD)No.3220 of 2019


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