Supreme Court Issues Notice In Plea Seeking Recognition Of Transgender Persons Under Special Marriage Act 1954

The Supreme Court today issued a notice in a plea filed by members of the transgender community seeking a declaration that all references to "husband" and "wife" and ‘male' and ‘female' in the Special Marriage Act (SMA) 1954 be read to include the words 'or spouse' to include all persons irrespective of their gender identity and sexual orientation.

“We will issue Notice and Tag”, said the Bench led by Chief Justice DY Chandrachud also comprising Justice PS Narasimha and Justice JB Pardiwala while hearing the Public Interest Litigation.

“Issue Notice returnable in 8 weeks. Dasti is permitted, in addition. Counter Affidavit be filed within 4 weeks”, ordered the Court.

Senior Advocate Jayna Kothari and Advocate Rohit Sharma appeared on behalf of the petitioners.

On January 6, a bench led by Chief Justice DY Chandrachud of the Supreme Court clubbed and transferred to itself all petitions pending before different high courts across the country on the issue of grant of legal recognition to same-sex marriages. The Court asked the Centre to file its joint reply to all the petitions on the issue by February 15 and directed that all the petitions will be listed in March.

The plea said that the transgender persons in India are unable to marry and only those transgender persons who have their names and gender in all their legal documents changed to reflect their gender as female. “They (transgender persons) are unable to get married under the SMA, unless their ID cards and legal documents show their gender as 'male; or 'female' because the SMA still refers to the binary notion of genders of 'male' and 'female’”, read the plea.

The petition further prays that Sections 5, 6, 7, 8, 9, 10 and 46 of the Special Marriage Act 1954 which impose conditions of publication of a 30-day public notice and power of the Marriage Registrar to receive objections and decide on the said objections as unconstitutional as being violative of Articles 14,15,19 and 21 of the Constitution.

"These provisions allow for family members who are opposing marriages of transgender persons, either being their own family members or the family members of the partners of trans persons, to file objections and oppose their marriage", it said.

Further, the plea said that the Supreme Court in its decision in National Legal Service Authority vs. Union of India, expressly recognized the right to the self-determination of one's gender identity as male, female or transgender and called for the recognition of the rights of transgender persons under Part III of the Constitution including the rights to marry, have property, adoption and have a family.

Transgender persons all over the country are denied their right to marry a person of their choice which is a legal and fundamental right available to all persons in India but denied to the transgender community only due to their gender identity.

“As the right to gender identity and autonomy is protected under Articles 14, 15, 19 and 21 of the constitution, transgender persons cannot be deprived of their right to marry and the same is violated by the continued existence and enforcement of Sections 4, 22, 23, 27 and 44 and section 5, 6, 7, 8, 9, 10 and 46 of the SMA”, said the petition.

Cause Title- Dr. Akkai Padmashali & Ors. v. Union of India