Transgender Marriage and Adoption in India – A Socio-Legal Analysis
May 12, 2022
Human nature is a mesmerizing concept. The divergence in our community proves that no two people are ever the same. They may be similar but the experiences, choices, and decisions that one takes may be different at varying degrees which leads us to this very moment, the present. And in our collective present, a fight is still being fought by the transgender community for rights promised to all under our constitution. This gross injustice towards people who don’t conform to the gender identity assigned at birth is something that can not be overlooked.
Transgender Marriage under Marital Laws in India
The right to get married is a part of the fundamental right to life and personal liberty under Article 21 of the Constitution of India. But under the Indian laws already set in place, the laws relating to transgender marriage have been debated. This discrimination is on the grounds of sex under Article 15 of the Constitution and the words that describe laws can’t have such static meaning that renders them redundant while giving the deserved rights to ever-evolving society.
We know that transsexuals are those people belonging to the transgender community who undergo Sex Reassignment Surgery to transition to the gender they identify with. This is usually opposite to the gender they were assigned at birth. Therefore, a person who was first assigned as male but identifies themselves as female may undergo said surgery. To be officially recognized as a female she must sign all documents swearing change and gender identity. this document must be signed by the judicial magistrate with the appropriate medical documents in place.
Under Hindu marital laws, it is essential for the people coming to the union to be the bride and bridegroom under Section 5 of the Hindu Marriage Act. As transsexuals identify themselves as either male or female, they are allowed to enter into marriage.
Similar to the Hindu Marriage Act, Section 24 of the Special Marriage Act if the parties have attained the age of majority, they can be registered for marriage under this act. Under Mohammedan law, the law of marriage of transsexuals is ambiguous. A marriage is a contract where there is an offer from one side, and acceptance from the other, and all of this is done in the presence of enough witnesses. They must be of the opposite gender. There could be the scope of acceptance of marriage but as Mohammedan law states that bearing children is a part of the marriage contract, it would not be possible. People who have undergone SRS but cannot reproduce.
As people under the third gender do not identify themselves as either male or female, they don’t identify themselves as a bride or bridegroom under Section 5 of the Hindu Marriage Act and therefore won’t be recognized as a valid marriage in the eyes of the law.
The Special Marriage Act almost mimics the law relating to marriage under the Hindu Marriage Act. It is essential for there to be a male and a female for a valid marriage under Section 4 of the Act.
Under Mohammedan law, if the parties to the marriage are of different sexes, the marriage will be a valid one. Therefore, if a person marries a third gender, they should be of the opposite sex. This was formed primarily from the textual interpretation of Mohammedan Law in India, as there have been no known fact situations illustrating contradictions in such an interpretation. The revolutionary judgment that changed the rights of transgender marriage under the Hindu Marriage Act was affirmed in the Madras High Court. In Arunkumar and another v. the Inspector General of Registration and Ors. In this case, the term bride could cover people who identify and perceive themselves as female. But this does not include people who don’t identify themselves within the gender binary. Transgender marriage has not been legalized in this judgment.
Can transgenders adopt children and start a family in India?
Adoption by a transgender is not seen as something stable for a child, by society. This is because the work done by them to survive in a society that is unaccepting of their self-distinguished identity would not be a suitable environment to raise a child. This is an absolute violation of Article 15 of the constitution as they are being discriminated against based on their gender. This makes their footing unequal in society regarding adopting a child and building a family.
Under the Hindu Adoptions and Maintenance Act, they can adopt a child after fulfilling the conditions under Sections 7 and 8 of the Acts after getting the SRS. They can validly adopt from their parents without any formal scrutiny. But if the adoption is outside the scope of natural guardians, proof must be given to the court stating they are eligible to adopt under the HAMA.
The secular legislation of the Juvenile Justice Act states that any person can adopt a child. The term person is not gendered and therefore transsexuals fit in the definition and can therefore adopt a child.
Under the Adoption Regulations, unmarried men and women can adopt provided they are intellectually, emotionally, and financially sound and do not have a life-threatening condition, similar to HAMA. Apart from that, the Regulations prevent a single guy from adopting a girl kid but allow a woman to adopt a boy child.
The Hindu Adoption and Maintenance Act (HAMA) recognizes a valid adoption only if it is carried out by a man or a woman, hence third-gender adoptions are prohibited. Sections 4 and 5 of the same Act, which offer overriding powers to the provisions of the Act over customs, have also delegitimized adoptions in Hijras based on the custom of reet.
People of the third gender will be allowed to legally adopt if they are legally recognized as a couple under Section 41(6) of the Juvenile Justice Act, which specifies that any person has the right to adopt and does not specifically involve just male or female persons.
Any person can adopt if they fulfill the conditions set up by the central adoption resource agency, in an affidavit filed in the Bombay High Court.
There have been major changes in the rights of transgender in our community but their fight for transgender marriage and starting a family isn’t over yet. Society’s version of morality and equality can not equate to the rights and laws that are to be given to people who don’t fit into their definition of who the perfect citizen is. There has been grave injustice and unequal treatment in the past which have deprived them of their basic human rights. But movements and accomplishments such as the LGBTQ+ movement, recognition of this community by the judiciary through Landmark judgments, and literacy and development programs such as Rajiv Gandhi Aawas Yojna, and Indira Aawas Yojna are big wins for the transgender community that prove that their struggle is being recognized and are being heard and accepted for who they are slowly, but surely.