View source for Arun Kumar v. Inspector General of Registration

{{Short description|Indian LGBT Rights Case Law}}
{{Infobox court case
| name = Arun Kumar v. Inspector General of Registration
| judges = Justice [[G. R. Swaminathan]] 
| opinions = *A [[trans woman]] is a "bride" within the meaning of the [[Hindu Marriage Act, 1955|Hindu Marriage Act of 1955]]
*[[Intersex medical interventions|Genital-normalizing surgery]] (referred to as sex reassignment surgery in the case) for [[intersex]] children except on life-threatening situations are prohibited.
| decision by = Justice [[G. R. Swaminathan]] 
| number of judges = 1
| court = [[Madras High Court]]
| date decided = 22 April 2019
| full name = Arun kumar {{Abbr|&|and}} {{Abbr|Anr.|Another}} versus Inspector General of Registration {{Abbr|&|and}} {{Abbr|Ors.|Others}}
| caption = 
| imagealt = 
| imagelink = 
| imagesize = 
| image = 
| citations = {{URL|1=https://www.livelaw.in/pdf_upload/pdf_upload-360185.pdf|2={{Abbr|W. P. (MD) No.|Writ Petition (Madurai) Number}} 4125 of 2019}}
| keywords = [[Transgender rights movement|Transgender Rights]], [[Intersex human rights|Intersex Rights]], [[Queer|Queer Relationships]], [[Queer|Queer Marriages]]
}}

'''Arun Kumar {{Abbr|&|and}} {{Abbr|Anr.|Another}} versus Inspector General of Registration''' '''{{Abbr|&|and}} {{Abbr|Ors.|Others}} (2019)''' is a [[List of landmark court decisions in India|landmark judgement]] of the [[Madras High Court]] which recognised [[trans woman]] as a "bride" within the meaning of the [[Hindu Marriage Act, 1955|Hindu Marriage Act 1955]] and prohibited [[Intersex medical interventions|genital-normalizing surgery]] (referred to as sex reassignment surgery in the case) for [[intersex]] infants and children except on life-threatening situations.<ref name=":1" /><ref name=":2">{{Cite web |title=Tamil Nadu Government Order Banning Surgeries on Intersex Infants (2019) |url=https://translaw.clpr.org.in/legislation/tamil-nadu-government-order-banning-surgeries-on-intersex-infants-2019/ |access-date=2023-09-15 |website=South Asian Translaw Database |language=en-US}}</ref><ref name=":0" />

The [[Supreme Court of India]] highlighted the case in its publication titled "Sensitisation Module for the Judiciary on LGBTIQA+ Community" as one of the [[High courts of India|High Court]] judgments that effectively addressed the difficulties and obstacles experienced by queer individuals within the justice system due to their systemic marginalization.<ref name=":02">{{Citation |last=Supreme Court of India |title=Sensitisation Module for the Judiciary on LGBTIQA+ Community |url=https://cdnbbsr.s3waas.gov.in/s388ef51f0bf911e452e8dbb1d807a81ab/uploads/2023/05/2023050154.pdf |pages=25 |publication-date=26 November 2022 |archive-url=https://web.archive.org/web/20230602010134/https://cdnbbsr.s3waas.gov.in/s388ef51f0bf911e452e8dbb1d807a81ab/uploads/2023/05/2023050154.pdf |publisher=Supreme Court of India |archive-date=2 June 2023 |author-link=Supreme Court of India}}</ref>

== Background ==
On 31 November 2018, Arun Kumar married his wife, Srija, a [[transgender woman]], in a traditional Hindu ceremony at the Arulmighu Sankara Rameswara temple in [[Tuticorin]]; the couple subsequently sought to register their marriage with the Joint Registrar at [[Tuticorin]] under the [[Hindu Marriage Act, 1955|Hindu Marriage Act 1955]]. The registrar refused to enter the marriage into the [[Tamil Nadu]] marriage registry on the basis that the marriage was prohibited, as under the Hindu Marriage Act, a marriage is conducted between a "bride" and a "groom"; the registrar indicated that Srija was not a "bride" within the meaning of the act. The couple thus filed suit in the Madras High Court seeking an order from the court compelling the Registrar to enroll their marriage.<ref name=":0">{{Cite court|litigants=Arun kumar {{Abbr|&|and}} {{Abbr|Anr.|Another}} versus Inspector General of Registration {{Abbr|&|and}} {{Abbr|Ors.|Others}}|court=[[Madras High Court|Madurai Bench of Madras High Court]]|opinion={{Abbr|W. P. (MD) No.|Writ Petition (Madurai) Number}} 4125 of 2019|date=22 April 2019|url=https://www.livelaw.in/pdf_upload/pdf_upload-360185.pdf}}</ref><ref name=":1">{{Cite web |title=Arunkumar & other vs. The Inspector General of Registration & others |url=https://translaw.clpr.org.in/case-law/arunkumar-vs-the-inspector-general-of-registration/ |access-date=2022-10-02 |website=South Asian Translaw Database |publisher=Centre for Law and Policy Research |language=en-US |publication-place=Bangalore, India}}</ref>

== Proceedings ==
The Madurai Bench of the Madras High Court was asked to consider whether the term ‘bride’ could include transgender women, within the meaning of Section 5 of the [[Hindu Marriage Act, 1955|Hindu Marriage Act 1955]]. The petitioners further asked the court to consider whether the refusal to register the marriage of a person based on sexual orientation or gender identity violates the right to equality before the law, freedom of speech and expression, protection of life and personal liberty and freedom of conscience and free profession, practice and propagation of religion guaranteed under the [[Constitution of India]].<ref name=":0" />

During the proceedings, the Bench was made aware that Srija was born with an [[intersex]] variation, but the school records identified her as male. Additionally, through Intersex activist [[Gopi Shankar Madurai|Gopi Shankar]], the Bench was made aware that the [[Ministry of Health and Family Welfare]] regulates medical procedures, including sex reassignment surgeries, for intersex children only after a thorough assessment of the patient and obtaining written consent from the parent or guardian.<ref name=":0" />

== Opinion of the Court ==

=== Right to Marry for Transgender Persons ===
The court observed that the [[Universal Declaration of Human Rights]] provides for the right to marry and family life. The court noted the Supreme Court's verdict in [[Right to Privacy verdict|''Puttaswamy v. Union of India (2017)'']]'','' which highlighted the contradiction in recognising the right to privacy in different aspects of family life but excluding it for the decision to enter into relationships— the foundational part of family life. The court relied on the Supreme Court's ruling in ''[[Hadiya case|Shafin Jahan v. Ashokan J.M.(2018)]]'', which recognized the right to choose a marital partner as a Constitutional right. Furthermore, the court relied on the Supreme Court's decision in [[National Legal Services Authority v. Union of India|''NLSA v. Union of India (2014)'']], which recognised the right to marry for a transgender person.<ref name=":0" />

The court relied on the [[National Legal Services Authority v. Union of India|''NLSA v. Union of India (2014)'']], which held that "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]]." Therefore, the court held that under Section 5 of the [[Hindu Marriage Act, 1955|Hindu Marriage Act of 1955]], transgender women are recognized as "brides" based on their self-identification as women, meaning that those who perceive themselves as women are legally considered as such.<ref name=":0" />

The court held that while [[Parliament of India|Parliament]] may not have considered that trans women would fall under the Act, "The expression “bride”...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."<ref name=":0" />

Consequently, the court held that the marriage between Arun Kumar and Srija, being validly conducted, must be considered a lawful marriage insofar as failure to do so would violate Srija's constitutional rights. The court issued the writ sought by the couple, ordering the Registrar to enroll their marriage.<ref name=":0" />

=== Prohibition of Genital Surgery for Intersex Children ===
During the proceedings, the Court was made aware that the [[Ministry of Health and Family Welfare]] regulates medical procedures, including sex reassignment surgeries, for intersex children only after a thorough assessment of the patient and obtaining written consent from the parent or guardian.<ref name=":0" />

The court relied on  the Supreme Court's verdict in [[National Legal Services Authority v. Union of India|''NLSA v. Union of India (2014)'']], which established that individuals cannot be compelled to undergo medical procedures, such as [[gender-affirming surgery]] (referred to as sex reassignment surgery in the case), sterilization, or hormonal therapy, in order to obtain legal recognition of their gender identity. The court noted that the [[World Health Organization]] issued a report titled "[[Intersex human rights reports#WHO report, "Sexual health, human rights and the law", 2015|Sexual Health, Human Rights and the Law]]," advocating for delaying [[Intersex medical interventions|genital-normalizing surgery]] until intersex children reach an age where they can independently make decisions. The court relied on the Madras High Court's ruling in ''S. Amutha v. C. Manivanna Bhupathy'' to hold that the consent of the parent cannot be considered as the consent of the child.<ref name=":0" />

Furthermore, the court highlighted Article 39(f) of the Constitution of India, which declares, "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."<ref name=":0" /><ref>{{Cite web |date=26 January 1950 |title=Article 39: Certain principles of policy to be followed by the State |url=https://www.constitutionofindia.net/articles/article-39-certain-principles-of-policy-to-be-followed-by-the-state/ |archive-url=https://web.archive.org/web/20230916001835/https://www.constitutionofindia.net/articles/article-39-certain-principles-of-policy-to-be-followed-by-the-state/ |archive-date=16 September 2023 |access-date= |website=Constitution of India |language=en-US}}</ref>

Therefore, the court directed the State Government of Tamil Nadu to prohibit [[Intersex medical interventions|genital-normalizing surgery]] (referred to as sex reassignment surgery in the case) for [[intersex]] infants and children except on life-threatening situations.<ref name=":1" /><ref name=":2" />

== Compliance ==
On 13 August 2019, [[Department of Health and Family Welfare (Tamil Nadu)|Department of Health and Family Welfare]], a department of [[Government of Tamil Nadu|State Government of Tamil Nadu]], issued an order banning [[Intersex medical interventions|genital-normalizing surgery]] (referred to as sex reassignment surgery in the case) for [[intersex]] infants and children except on life-threatening situations. The order stipulates that exceptions in cases of life-threatening circumstances will be granted by the government, following the recommendation of a committee formed by the Director of Medical Education, which must include the following members:<ref name=":3">{{Cite act|type=Government Order (Manuscript)|index=355|date=13 August 2019|legislature=[[Department of Health and Family Welfare (Tamil Nadu)|Department of Health and Family Welfare]], [[Government of Tamil Nadu|State Government of Tamil Nadu]]|url=https://web.archive.org/web/20221201170645/https://translaw.clpr.org.in/wp-content/uploads/2020/10/Tamil-Nadu-GO-Intersex-Surgery.pdf}}</ref>

* A Pediatric Surgeon or Urologist.
* An Endocrinologist.
* A Social Worker, Psychology Worker, or Intersex Activist.
* A Government Representative holding the rank of Under-Secretary to the Government or higher.

In addition to Madras High Court's direction in the current case, the [[Department of Health and Family Welfare (Tamil Nadu)|Department of Health and Family Welfare]] issued its order based on the Supreme Court's ruling in ''[[National Legal Services Authority v. Union of India|NLSA v. Union of India (2014)]]'', the [[World Health Organization]]'s report titled "Sexual Health, Human Rights and the Law," and expert opinions provided by the Head of the Department of Plastic, Reconstructive, and Facio-Maxillary Surgery at [[Rajiv Gandhi Government General Hospital]].<ref name=":3" />

== Impact ==
Tamil Nadu holds the distinction of being the first in Asia and the second worldwide, following Malta, to prohibit the practice of performing genital-normalizing surgeries on intersex infants and children.<ref>{{Cite news |date=2019-09-12 |title=Tamil Nadu is the first in Asia and second in the world after Malta to legally ban sex selective surgeries on intersex infants and children. While the order is historic, it doesn't clarify the medical conditions that can be exempted from surgery |work=The Times of India |url=https://timesofindia.indiatimes.com/india/tamil-nadu-is-the-first-in-asia-and-second-in-the-world-after-malta-to-legally-ban-sex-selective-surgeries-on-intersex-infants-and-children-while-the-order-is-historic-it-doesnt-clarify-the-medical-conditions-that-can-be-exempted-from-surgery/articleshow/71094093.cms |access-date=2023-09-16 |issn=0971-8257}}</ref>

The [[Supreme Court of India|Supreme Court]] featured the case in its "Sensitisation Module for the Judiciary on LGBTIQA+ Community" as a significant High Court judgment addressing the legal challenges faced by LGBTQ+ citizens. The publication highlighted the court's focus [[gender self-identification]] as the relevant factor in determining the legal treatment of marriages. It also noted that by ordering that the marriage between a cisgender man and a transgender woman be recognized, the Court included transgender people in the legal conception of marriage, traditionally confined to unions including two cisgender persons.<ref name=":02" />

== See also ==

{{Portal|India|LGBTQ
}}

* [[LGBT rights in India|LGBT Rights in India]]
* [[Supriyo v. Union of India|Supriyo v. Union of India (2023)]] 
* [[Chinmayee Jena v. State of Odisha|Chinmayee Jena v. State of Odisha (2020)]]
* [[National Legal Services Authority v. Union of India|National Legal Services Authority v. Union of India (2014)]]

== References ==
<references />{{LGBT Rights Case Law in India|state=expanded}}{{LGBT in India|state=collapsed}}

[[Category:Marriage law in India]]
[[Category:Transgender case law]]
[[Category:Indian case law]]
[[Category:Indian LGBTQ rights case law]]
[[Category:2019 in LGBTQ history]]