by LFIAdmin | Jan 10, 2023 | Home
By Ritabh Singh, 4th Year Law Student, Government Law College, Mumbai,
ritabhsingh44@gmail.com | January 09, 2023
Introduction
The principle of Lis Pendens – ‘Lis’ meaning litigation/dispute and ‘Pendens’ meaning pending – is embodied in this maxim, and it finds itself codified in Section 52 of the Transfer of Property Act, 1882. While the doctrine was found in the English case of Ballamy v. Sabine, Privy Council has observed its purpose as follows[1]:
“Broad purpose of Section 52 is to maintain status quo unaffected by act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or strength or weakness of the case on one side or other in bona fide proceedings. To apply such test is to misconceive the object of the enactment”.
In simple words, the doctrine of Lis Pendens rules that neither party to the suit can transfer, or otherwise deal in anyway with the suit property in a manner which affects the rights of the other party. The doctrine thus, restricts alienation of the suit property, to avoid creation of any third party rights which further prolongs justice due to endless litigation.
Application of doctrine
The doctrine of Lis Pendens is applied as mentioned under section 52 of the Transfer of Property Act, 1882. However, it is paramount to note that by certain state amendments, it is mandatory to also register a notice of Lis Pendens in order to give effect to the doctrine.
Section 52 of Transfer of Property Act, 1882 was amended in the State of Maharashtra by Bombay (Amendment) Act 14 of 1939 [2] and the same reads as follows:
52. (1) During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, if a notice of the pendency of such suit or proceeding is registered under section 18 of the Indian Registration Act, 1908, the property after the notice is so registered cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
(2) Every notice of pendency of a suit or proceeding referred to in sub-section (1) shall contain the following particulars, namely:-
(a) The name and address of the owner of immovable property or other person whose right to the immovable property is in question;
(b) The description of the immovable property the right to which is in question;
(c) The Court in which the suit or proceeding is pending;
(d) The nature and title of the suit or proceeding; and
(e) The date on which the suit or proceeding was instituted.
In its application in the State of Maharashtra, Section 18 of the Registration Act, 1908 has been amended as follows:
a) Delete the word “and” after clause (e)
b) After “and” in (e), add – notices of pending suits or proceedings referred to in Section 52 of the Transfer of Property Act, 1882
The effect is same in the State of Gujarat [3].
Thus, following are the necessary conditions for the application of the doctrine:
a) The suit shall be pending in a competent court.
b) The suit shall not be collusive/friendly in nature.
c) A right to immovable property must be directly and specifically in question.
d) A notice of Lis Pendens shall be registered under section 18 of The Registration Act, 1908 with the concerned Registrar/Sub-Registrar. [Applicable in the State of Gujarat and Maharashtra]
Effect of doctrine
On the application of the doctrine, any transfer made during the pendency of the suit is not void ab initio or illegal, but only makes the purchaser bound by the decision of the court [4]. The rights of the parties are only subservient to the decision of the court. If the transferor’s title is upheld, the sale will be valid and the transferee’s title will not be affected [5]. The doctrine of Lis Pendens is thus intended to strike at attempts made by parties to circumvent jurisdiction of court through private dealings to create third party rights [6].
Removal of Lis Pendens
In certain circumstances, a notice of Lis Pendens is filed to intentionally drag parties to litigation, and delay transactions of the immovable property. In such cases, court has the discretionary power to lift the operation of Section 52. The court itself has provided the aspects be borne by it when it considers exemption of operation to deprive plaintiff of fruits of litigation [7], though these are not exhaustive:
a) Can party be relieved only on a court imposing conditions? Is imposing conditions a prerequisite?
b) On facts pleaded by the plaintiff, will he prima facie, be entitled to the relief of specific performance of the contract?
c) If court concludes that specific relief cannot be granted, then while considering the alternative relief of damages which the plaintiff in the suit for specific performance is entitled to, should the plaintiff be secured?
d) If to be secured, should it only be the market value of the property on the date of the suit at time when the suit is filed be considered?
In a case, where there is no concluded contract between the parties, it would be highly inequitable to continue the cloud on the title of the property, especially when even if the plaintiff leads evidence, the chances of success are very dismal. Thus, operation of section 52 is lifted off from the suit premises, even if the notice of lis pendens was registered and fulfilled all conditions to be valid [8].
Conclusion
While registration of the notice is compulsory in Gujarat and Maharashtra, it is not so in rest of the states. This creates a peculiar problem. Transferors in a pending suit sell off the premises to unsuspecting purchasers who do not have any means to check if the premises are subject to any pending litigation. This jeopardizes the subsequent purchaser, who after investing all his earnings gets dragged in litigation, the result of which may deprive him out of the money invested as well as the possession of the suit [9].
The solution to this is that every state must make it compulsory to register a notice of Lis Pendens with the local registrar while filing a suit to dispute title of property. This will enable the subsequent purchaser to check if any litigation is pending on the premises. In cases where a Lis Pendens if filed to intentionally cloud genuine title, the courts have the power to remove the same after considering all the facts of the case, and the nature of the suit.
[1] Gouri Datt Maharaj v. S K Sukur Mohammed [AIR 1948 PC 147]
[2] The Transfer of Property and The Indian Registration (Bombay Amendment) Act, 1939
[3] Act 11 of 1960, S. 87; Gujarat A.L.O 1960
[4] Hardev Singh v. Gurmail Singh (2007)
[5] T G Ashok Kumar v. Govindammal & Anr. [2010 (Civil Appeal No .10325 of 2010)]
[6] Rajendra Singh & Ors. v. Santa Singh & Ors. [1973 AIR 2537, 1974 SCR (1) 381]
[7] Shantilal J Khona v. Anandrai Shivlal Dave [ 2002 (3) Bom. C.R. 346]
[8] Ambaji Developers & Ors v. Mukundrai D Sanghavi (2019)
[9] 12th Report by Law Commission of Karnataka (18.8.2010)
by LFIAdmin | Dec 16, 2022 | Home
By Ritabh Singh, 4th Year Law Student, Government Law College, Mumbai,
ritabhsingh44@gmail.com | December 16, 2022
Introduction
The 103rd Constitution Amendment Act was assented by the President of India in January 2019, and this amendment introduced a 10% reservation for Economically Weaker Sections (herein referred as EWS) for admission in central-run public educational institutions and private educational institutions, and for employment in central public institutions.
The amendment added clause 15(6) and 16(6) in the constitution which allowed state action of providing for reservation for EWS, which in itself is a permissible affirmative action, but to the exclusion of categories mentioned in Article 15(4), 15(5) and Article 16(4).
Various petitions were filed before the Hon’ble Supreme Court of India challenging the amendment for being discriminative against backward classes and violating the basic structure of the constitution.
A Five Judge bench of the Hon’ble Supreme Court, in Janhit Abhiyan v. Union of India [1], delivered its judgement on November 7, 2022, upholding the constitutionality of the 103rd Amendment in a majority of 3:2.
Arguments in the case
Challenging arguments, by the petitioners, relied on Constituent Assembly debates, the Preamble and various judgements of the Hon’ble Supreme Court, to show that the concept of reservation itself was to address historic inequalities and that the special provisions for specific classes is an action of positive discrimination, which in itself forms a congenital feature of the basic structure of the constitution. The reservation which the amendment propounds to create is not for a class, but for a section of society which will exist indefinitely, based not on economic condition but financial incapacity and which rewards poor financial behaviour; thus is not reliable for reservation.
The petitioners pointed out that there is no reasonable classification for the creation of the class, and the created classification does not have any nexus to the object to be reached, thus violating Article 14 [2]. Economic criteria as the sole factor for reservation had not been accepted earlier, and the ceiling limit of 50% is breached by the said amendment [3]. A few arguments were made that the amendment could be sustained if the phase “other than” was read down [4] by the court to be “in addition to”. Lastly, reservation cannot be used as a poverty alleviation scheme to reach development goals.
In support of the amendment, the Union of India argued that the amendment does not violate the basic structure, but fosters it, and that a constitutional amendment can be struck down only when it changes the identity of the constitution [5]. Creation of a new class fosters ‘economic justice’ and reservation for EWS is maintainable, as seen under Right of Children to Free and Compulsory Education Act, 2009 [6].
It was further argued that exclusion of classes already mentioned in Article 15(4) and Article 16(4) does not violate equity code and is necessary to avoid dual benefit. The 10% ESW reservation is in addition to the 49.5% existing reservation for categories under the said provisions. Moreover the concept of equality and reservation is changing and evolving, and such affirmative action must be positively interpreted to benefit the targeted class.
The Minority view
The minority judgement was delivered by Justice J Ravindra Bhat and the then Chief Justice of India, U U Lalit. They held that economic criteria for educational reservation under Article 15 was acceptable, however EWS reservation under Article 16 for governmental jobs has to be struck down. The exclusion of SC/ST/OBC is a constitutionally prohibited form of discrimination. They form the majority of EWS, and depriving them of the said benefit directly benefits the upper class which has faced no historic discrimination, defeating the very intent of reservation. Article 16(4) is premised on adequate representation, and reservation for EWS is not for lack of representation, thus being unqualified.
A breach of the 50% ceiling limit itself will result in compartmentalisation, and any reservation for EWS will lead to virtual deletion of Article 15(4) and 16(4). The ceiling limit existed to balance reservation and open competition. The amendment legitimizes discrimination by exclusion to benefit targeted group. However the EWS, i.e the targeted group, itself is created by exclusion of economically weaker sections of SC/ST/OBC who remain economically weaker due to being subjected to discrimination in all dimensions.
The Majority view
The majority judgement was delivered by Justices Dinesh Maheshwari, Bela Trivedi and J B Pardiwala, which upheld the 103rd Amendment and accepted creation of provisions for reservation of EWS as permissible affirmative action to ensure inclusion and held that the 50% ceiling limit is not sacrosanct and has been by-passed previously in certain circumstances. The classification for EWS is not an unreasonable one and has a clear purpose of achieving substantive equality. Justice Trivedi held “Just as equals cannot be treated unequally, unequals cannot be treated equally”, and the exclusion of SC/ST/OBC is valid. Reservation, in itself, is not to be continued forever and must be revisited to fulfil the object of having a casteless and classless society. Justice Maheshwari held that compensatory discrimination, wherever applied is exclusionary in character and acquires worth only after exclusion of other classes.
The argument to read down the specific provision was rejected as the intent of the legislature is clear and unambiguous from the provision itself. Since the 10% reservation is in addition to the existing reservation, the question of reducing reservation of existing communities does not arise. Since the objective of reservation is to provide a level playing field to an underprivileged class, creation of the same for EWS after taking in account the current situation, the state is permitted to provide reservation for EWS.
The Effect
Since the constitutional amendment has been upheld, various states seek to increase reservation above 50%. Jharkhand Assembly passed a bill [7] to increase reservation to a total of 77% for SC/ST/OBC. However an imperative point to note is that the judgement in the said case allows reservation only for EWS, which is a new form of affirmative action. The decision of 50% cap applies to caste based reservation, and not new forms of affirmative actions. Breaching this 50% cap for communities already included in this 50% might be struck down by the court for being in violation of the ceiling limit.
Conclusion
The Majority judgement took note of the UNGA Resolution passed on 25th October 2015, for the eradication of poverty and all its forms. State action, in the form of the 103rd amendment, attempts to eradicate poverty by providing for additional reservation of 10% for EWS. However such reservation will continue for a long period as there will always be poor. Reservation as a solution is itself for a limited period. Now that affirmative action has created reservation for a new class, there is no restriction on how many other classes may be reserved by such action, leaving the question of social equality for the general and unreserved class, an already much debated issue.
[1] WRIT PETITION (CIVIL) NO. 55 OF 2019
[2] Article 14: Equality before law
[3] INDIRA SAWHNEY v. UOI – AIR 1993 SC 477
[4] Doctrine of reading down: Power of courts to interpret meaning of a provision to save it from it being declared illegal.
[5] M NAGARAJ v. UOI [WRIT PETITION (CIVIL) 61 OF 2002]
[6] Society for unaided private schools of Rajasthan v. Union of India (2012)
[7] 11th November, 2022
by LFIAdmin | Dec 15, 2022 | Home
By Shivam B. Trivedi, Advocate
rshivamtrivedi798@gmail.com | December 14, 2022
Introduction
The general understanding is that a woman cannot be charged under Section 354 of IPC, however, the true interpretation differs.
Section 354 of the Indian Penal Code, 1860 (“IPC”) is enacted with the objective of maintaining decent behaviour in the society and to protect women who are subject to criminal force and assault. If any person (irrespective of gender) uses criminal force on any woman with intent to outrage her modesty or with the knowledge that her modesty will be outraged, he or she will be punished.
Conviction of a woman under section 354 of IPC
Usually, the charge under S.354 of IPC is levied upon men. There has not been any noteable judicial precedent highlighting the conviction of a woman under S.354 of IPC. However, the court of Metropolitan Magistrate, Mazgaon, Mumbai, in the year 2022 in case no.7000138/PW/2021took cognizance of the complaint filed under S. 354 of IPC against a woman and after considering the evidence, sentenced her (being the accused) to imprisonment for a term of one year with fine of Rs. 5,000/-. (State of Maharashtra v/s Rovena Aadnya Amit Bhosle) holding that the Accused (being a woman) should be protective and sensitive towards women.
Essentials of Sec 354 of IPC
The essential conditions necessary to be satisfied to get a conviction under S.354 of IPC are as follows:-
~The presence of an assault/criminal force/ physical force;
~The physical force must be used with the intention of outraging the modesty of a woman or there must be knowledge that such act is likely to outrage the modesty of a woman;
However, it has been observed that if there is no intention to outrage the modesty or if it has not been proved beyond reasonable doubt that the intention was malafide in nature then conviction under S.354 of IPC would not be possible. [Bhanu Singh v/s State Of Chhattisgarh,2022]
Analysis
If and when it is proved to the satisfaction of the court, after considering the evidence submitted during the course of trial, that the accused person who is charged with an offence under S.354 of IPC is convicted, then the court shall sentence the Accused person (irrespective of gender) to imprisonment which shall not be less than one year but which could extend to five years and the convict shall also be liable to fine. The offence u/s. 354 of IPC can be committed by any man or woman. A woman can assault or use criminal force over other woman as equally and effectively as any man. The pronoun ‘he’ used in the expression “that he will thereby outrage her modesty” must therefore be taken u/s 8 of IPC as importing a male or female. Therefore, u/s 354 of IPC, a man as well as a woman both can be held guilty. It cannot be maintained that woman is exempted from any punishment under this section.
Conclusion
From the aforesaid, it could be concluded that S.354 of IPC is gender neutral in nature and the general presumption that S.354 of IPC could only be invoked against men has been changed and women in the society could take shelter under this section against any form of aggravated assault not just against men but against anyone. However, the aforesaid view of the writer is absolutely personal and subject to corrections.
by LFIAdmin | Nov 18, 2022 | Home
By Nazaqat Lal, Advocate & Solicitor, Bombay High Court
nazaqat_lal@hotmail.com | November 19, 2022
INTRODUCTION
Myth is existing in the mind of general public that upon death of a member of Co-operative Housing Society, the Nominee of such member becomes the Owner of the Flat.
There is a general practice in housing societies of members making nominations for their respective flats. The nomination form is then submitted to the secretary or chairman of the society. After the member’s demise, the society in its meeting takes note that the member has passed away and based on the nomination form, inducts the nominee as a member and notes the same on the share certificate. It becomes imperative to understand what the purpose and legal effect of making a nomination is. A nominee holds the flat in a fiduciary capacity, i.e. as a trustee for the legal heirs of the deceased till such time the legal heirs are determined by the applicable succession laws. A nominee does not become the owner of the flat by virtue of the nomination. In order to become an owner of a flat, it will have to be received by way of gift, Will, family arrangement or other such similar document.
LEGAL POSITION
The Maharashtra Co-operative Societies Act, 1960 (“the said Act”) governs co-operative societies. Section 30 of the said Act deals with transfer of interest on death of a member. This provision has come up for interpretation before the Bombay High Court on several occasions as there is invariably a dispute that arises between the nominee and the legal heirs regarding the vesting of ownership rights in the flat of deceased member.
In the case of Ramdas Shivram Sattur v. Rameshchandra Popatlal Shah, the Bombay High Court followed its previous decision in the case of Gopal Vishnu Ghatnekar v. Madhukar Vishnu Ghatnekar and held that a nominee does not become the owner of the properties in question. The purpose of nomination is to protect the rights of the deceased member in the subject matter of nomination till the legal representatives of the deceased take appropriate steps and to give a valid discharge to the society.
A recent judgment of the Bombay High Court in the case of Karan Vishnu Khandelwal v. Honourable Chairman/Secretary Vaikunth (Andheri) Co-operative Housing Society Ltd. & Ors. has once again brought to the fore the effect of nomination in case of a co-operative housing society versus the rights of legal heirs. While this judgment reiterates the well settled legal position that a nominee is merely a trustee and shall hold the flat in his capacity as trustee till the time the legal heirs are ascertained, the manner in which it is drafted is likely to cause some confusion. The brief facts of the case are set out hereunder to better appreciate the findings.
Brief facts
1. One, Mr. Mannalal Khandelwal (“Mannalal”) was the owner of a flat in Vaikunth (Andheri) Co-operative Housing Society, Mumbai (“the said Flat”).
2. During his lifetime, he made a nomination in favour of his grand son (son of a predeceased son), the Petitioner herein. The nomination was duly acknowledged by the managing committee in its meeting and recorded in the nomination register maintained by the society.
3. Thereafter, Mannalal died without leaving behind a will.
4. After his death, one of his sons, Rajendra (Respondent No. 2) made an application to the society seeking transfer of membership and issue of share certificate in his name. He also submitted an NOC and indemnity bond from his brother, Krishnakumar. On this basis, Rajendra sought 2/3rd share and interest in the said Flat. The society rejected Rajendra’s application.
5. Rajendra preferred an appeal before the Deputy Registrar Co-operative Societies. The Deputy Registrar allowed the appeal and held that since Respondent No. 2 had acquired 2/3rd right in the said Flat and to that extent, his interest be noted in the society record. In consequence, the Deputy Registrar acknowledged 2/3rd undivided right of Respondent No. 2 and 1/3rd right of the Petitioner in the said Flat and directed the society to make an entry in its records.
6. In revision, the Divisional Joint Registrar upheld the order of the Deputy Registrar and dismissed the revision application of the Petitioner.
7. Aggrieved by the order of the Divisional Joint Registrar, the Petitioner approached the Bombay High Court.
Decision
The Bombay High Court set aside the order of the Divisional Joint Registrar on broadly two grounds (a) the impugned order was in breach of the principles of natural justice and (b) the impugned order was against the law. It is the latter ground that we are concerned with.
Analysis
The Bombay High Court placed reliance on the judgment of the Supreme Court of India in the case of Indrani Wahi v. Registrar of Cooperative Societies, Section 30 of the said Act and the Maharashtra Cooperative Societies (Amendment) Act, 2019 whereby Section 154B-13 came to be inserted in the said Act.
Section 154B-13 reads as under –
“154B-13. Transfer of interest on death of a Member
On the death of a Member of a society, the society shall transfer share, right, title and interest in the property of the deceased Member in the society to a person or persons on the basis of testamentary documents or succession certificate or legal heirship certificate or document of family arrangement executed by the persons, who are entitled to inherit the property of the deceased Member or to a person duly nominated in accordance with the rules:
Provided that, society shall admit nominee as a provisional Member after the death of a Member till legal heir or heirs or a person who is entitled to the flat and shares in accordance with succession law or under will or testamentary document are admitted as Member in place of such deceased Member:
Provided further that, if no person has been so nominated, society shall admit such person as provisional member as may appear to the committee to be the heir or legal representative of the deceased Member in the manner as may be prescribed.”
What emerges from the above is that a society is empowered to transfer the right of a deceased person on the basis of (i) testamentary documents, (ii) succession certificate, (iii) legal heirship certificate, (iv) family arrangement or (v) duly made nomination. However, it is expressly clarified that a nominee shall be admitted as a provisional member. Therefore, a nominee is merely a trustee who holds the flat till the time the legal heirs are ascertained.
In the case at hand, Mannalal had made a valid nomination in favour of his grandson (the Petitioner). However, he had died intestate, i.e. without leaving behind a Will. Therefore, the Society was directed to transfer the flat to the Petitioner in his capacity as nominee (trustee) and admit him as a provisional member till the time Rajendra (Respondent No. 2) was able to obtain a succession certificate or legal heirship certificate or testamentary document, as the case maybe.
What the Divisional Joint Registrar had done was in effect, ascertained the shares of the parties as per the applicable succession laws, given that Mannalal had died intestate. While this would likely be the eventual manner in which the ownership rights in the said Flat devolve, the Bombay High Court did not want to give a go-by to the nomination and the compulsory requirement of obtaining a legal heirship certificate or letters of administration without will that would have to be obtained by the heirs of Mannalal given that the flat is situated in Mumbai. The Bombay High Court therefore, directed the society to admit the Petitioner as a provisional member and call upon Respondent No. 2 to furnish the necessary documents on the basis of which the legal ownership in the flat would eventually vest. At first glance, it may appear that the Bombay High Court held in favour of the nominee as against the legal heirs. However, what it has done is to recognize the nominee as an interim trustee till the time Respondent No. 2 procures the necessary legal documents acknowledging his ownership right and the ownership right of all other legal heirs in the flat.
Conclusion
In light of the Maharashtra Cooperative Societies (Amendment) Act, 2019 and the aforesaid judgments of the Supreme Court of India and Bombay High Court, it becomes amply clear that in the eyes of a law, a nominee is a trustee and does not acquire ownership rights in a flat by virtue of nomination. Therefore, if the intent of a member is to vest ownership rights in a person, he/she will have to do the same by way of gift, Will, family arrangement or other such document; a nomination alone will not suffice. It is also important for societies to take note of this so that after a member’s demise, the ownership rights in the flat finally vest in the legal heirs or such person as maybe named in the Will or family arrangement or other such document, and not in the nominee.
by LFIAdmin | Nov 11, 2022 | Home
By Shivam B. Trivedi, Advocate
rshivamtrivedi798@gmail.com | November 11, 2022
Introduction
Section 498-A of the Indian Penal Code, 1860 (“IPC”) was incorporated in the year 1983 with the object of giving protection to married women who were subjected to cruelty and abuse (verbal or physical), either by the husband or the relatives of the husband and to curb the menace of cruelty subjected to a married woman which often leads to death.
To file a complaint under Section 498-A, the Complainant has to satisfy certain conditions as mentioned by the Hon’ble Supreme Court in U. Suvetha v. State, (2009) 6 SCC 757 which are as follows:-
1. The complainant is a married woman;
2. She must have been subject to cruelty and abuse; and
3. The cruelty or harassment caused shall only be either by her husband or any relative of her husband.
Complaint by Transgender woman under Section 498-A of IPC
Recently, a Criminal Petition was filed before the Hon’ble High court of Andhra Pradesh by a person to quash the complaint filed against him under Section 498-A of IPC by a transgender woman claiming to be his wife. It was contended by the husband that the complaint filed against him cannot be sustained as it was filed by a transgender and not a woman. The High Court of Andhra Pradesh felt that the above issue needs consideration and has, therefore, stayed all the proceedings till further orders and is likely to decide the same on priority.
Analysis
In another case, facts before the Madurai Bench of Hon’ble High Court of Madras in Arunkumar & Anr v. The Inspector General of Registration were as under:-
The first petitioner was male. The second petitioner was assigned as a female at birth but later on described as Third Gender (“T”). The Tamil Nadu marriage registration authority refused to register the marriage of the petitioners on the ground that the second petitioner was not a female but was transgender. The said refusal was challenged before the Hon’ble High Court at Madras by way of a Writ Petition.
The Hon’ble High Court at Madras in its Judgement dated 22nd April 2019 observed and held as under: –
• In the decision reported in (2014) 5 SCC 438 (National Legal Services Authority v/s Union of India), the Hon’ble Supreme Court upheld the transgender person’s right to decide their self-identified gender. The Hon’ble Supreme Court further noted that the existence of a third category outside the male-female binary has been recognized in the indigenous Hindu tradition.
• The second petitioner appears to have been an intersex person at birth and was assigned the female gender at birth. However, in the School records, the second petitioner has been described as a male and the gender specified in the Aadhar Card is T (Third Gender). A person who is in the Third Gender category is entitled to remain beyond the duality of male/female or can opt to identify oneself as male or female. It is entirely the choice of the individual concerned.
• 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 equality, shall not deny to any person equality before the law or equal protection of laws within the territory of India would apply to transgenders also. Transgender persons who are neither male nor female fall within the expression “person” and are hence entitled to legal protection of laws in all spheres of State activity as enjoyed by another citizen of this country. Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before the law and equal protection of laws and violates Article 14. Article 19(1)(a) and Article 21 of the Constitution of India were expansively interpreted so as to encompass one’s gender identity also.
• 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 a transgender’s behavior and presentation. The state cannot prohibit, restrict or interfere with a transgender’s expression of such personality which reflects such 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. 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, the State is bound to protect and recognize these rights.
• The expression “bride” under 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 meaning of a statute to present-day conditions. A statute must be interpreted in the light of the legal system as it exists today.
• Both the Petitioners herein (Petitioner No.2 being a transwoman) profess Hindu religion. Their right to practice Hindu religion is recognized under Article 25 of the Constitution of India. When the right of transgender persons to marry has been upheld by the Hon’ble Supreme Court, in the very nature they cannot be kept out of the purview of the Hindu Marriage Act, of 1955. 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.
• Seen in the light of the march of law, the expression “bride” under 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 themselves as a woman.
• The marriage registry was directed to register the marriage of the Petitioners.
The Transgender Persons (Protection of Rights) Act, 2019(“ the Act”)
The Act came into force on 10th January 2020. The Act is to provide for the protection of the rights of “transgender persons” and their welfare and for matters connected therewith and incidental thereto.
Section 2(k) of the said Act defines “transgender persons” means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
Section 3 of the Act deals with the prohibition against discrimination against a transgender person on various grounds as provided therein.
Conclusion
In view of the aforesaid discussion, it is observed that:-
(a) The rights of transgender persons need to be protected;
(b) Transgender persons have the fundamental rights guaranteed under the Constitution of India; and
(c) The meaning of married woman under section 498-A of IPC should include married transwomen.
The writer prima facie believes that the meaning of “married woman” under section 498-A of IPC should include transwoman. However, the said issue is pending before the Hon’ble High Court of Andhra Pradesh. The above view of the writer is absolutely personal and needs to be decided by the appropriate forum.
