BEFORE THE HONOURABLE SUPREME COURT OF
JHINDYA
PETITION FILED UNDER ARTICLE 136 OF THE CONSTITUTION
IN THE MATTER OF
RADHA AND SARALA
versus
UNION OF JHINDYA
Upon submission to the Hon’ble Chief Judges and other judges of the
Supreme Court of Jhindhya
Counsels for Respondents-
1.VISAKH R
2.AKSHAY S.S
3.GOVIND V.P
[MEMORIAL ON BEHALF OF THE RESPONDENTS]
1
TABLE OF CONTENTS
S.No. CONTENTS PAGE NUMBER
1. TABLE OF ABBREVIATION 3
2. INDEX OF AUTHORITIES 4
3. STATEMENT OF JURISDICTION 5
4. STATEMENT OF FACTS 6-7
5. ISSUES PRESENTED 8
6. WRITTEN PLEADINGS 11-17
7. PRAYER 18
2
LIST OF ABBREVIATIONS
ABBREVIATION EXPANSION
§. Section
§§. Sections
¶ Paragraph Number
¶¶ Paragraphs Numbers
& And
AIR All India Reporter
All Allahabad High Court
Anr. Another
AP Andhra Pradesh High Court
Art. Article
Arts. Articles
The Constitution The Constitution, 1950
Cr.P.C., 1973 The Code of Criminal Procedure, 1973
ed. Edition
e.g. exemplis gratia (Latin)
etc. Etcetera
HC High Court
Hon’ble Honourable
i.e. id est(Latin)
No. Number
Ors. Others
p. Page Number
WPC Windian Penal Code,1860
WEA Windian Evidence Act, 1872
3
INDEX OF AUTHORITIES
CASES
• Molar Mal (deceased) v. Kay Iron Works (Pvt.) Ltd., (2000) 4 SCC 285.
• Piara Singh v. Mukla Singh, ILR 4 Lah 325-26.
LEGISLATIVE
• The Constitution of India
• Hindu Marriage Act. 1955
BOOKS
• Dr.J.N.Pandey Constitutional Law of India 54th ed.2017
• Henry Campbell Black Black’s Law Dictionary 4th ed. revised 1968
• P. RamanathaAiyar Concise Law Dictionary 3rd ed. reprint 2007
• D.D.Basu, Shorter Constitution Of India, Lexis Nexis Wadhwa Nagpur, 14th Edn.
(2009).
• M. P Jain, Indian Constitutional law, 8th edition.
• V N Shukla, Constitution of India, 12th edition.
4
STATEMENT OF JURISDICTION
The Appellants herein have approached theSupreme Court of Jhindya through: Special Leave
Appealunder Article 136 of The Constitution of Jhindya, 1950. This Memorandum sets forth the
facts, laws and the corresponding arguments on which the claims are based in the instant case.
5
STATEMENT OF FACTS
Radha and Sarala are transgenders. Sarala had undergone sex-reassignment surgery at the age of
19. Radha was born male however she identifies as a woman. Both are 35 years and work as
office assistants in different corners of the city. Radha and Sarala live in Chingaluru with other
transgenders in a remote part and manage their affairs through meager salaries and begging.
They both found a safe refuge after encountering Lhakkai, a renowned transgender in
Chingaluru. She asked them to stay with her and made efforts to provide them jobs using her
contacts. Since that accidental meeting, Radha and Sarala live with 20 other transgenders in their
house called Prakriti for the last 10 years.
Radha and Sarala fell in love over the course of time and visit movie halls, parks and sometimes
go on a vacation after saving some money. They do this discreetly without informing anybody.
They had also made plans to live together and raise a child. Meanwhile, Sarala's family finds
where she is living through some relatives who had seen Sarala at a vegetable market. Sarala's
family search for her, find her place and decide to visit her only to be shocked to find her
transitioned and the knowledge about her relationship with Radha only further angered them.
After a scuffle between Sarala's friends and family, the family decides to leave but only after
delivering threats towards both Radha and Sarala. Shocked by the events, both Radha and Sarala
become cautious and decide to get married and try to move places as soon as possible.
Radha and Sarala along with their friends met at the Yellamma temple in Krishigiri and in line
with Hindu customs got married. As soon as marriage photos became public, a pro binary gender
family organization called ‘Kutumba Samiti’ began to harass and threaten the newlyweds that
they are violating the institution of marriage and transgenders cannot tie the mangalasutra.
Kutumba Samiti also put out an advertisement in the newspaper about the sanctity and
importance of marriage being diluted and withered away by marriage between transgenders.
They approached the High Court of Vataka for nullification of marriage. The reasoning of the
court was as follows “while the marriage was done according to Hindu customs and we cannot
nullify marriage on those grounds, the law defines marriage between a man and a ‘bride’. Even if
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we include transgenders within the ambit of ‘bride’, the definition of ‘man’ cannot be changed or
contested. On these grounds, we declare the marriage invalid.”
While Kutumba Samiti celebrated the verdict, Radha and Sarala were aggrieved and decided to
go on appeal. Along with other transgender organizations in the country, they approached the
Supreme Court of Jhindya to recognize their marriage and extend marital rights.
7
ISSUES INVOLVED
ISSUE-1
DOES THE DEFINITION OF MARRIAGE UNDER HINDU MARRIAGE ACT 1955
MEAN ONLY BETWEEN A ‘MAN’ AND A ‘BRIDE’?
ISSUE-2
DOES THE DEFINITION OF ‘BRIDE’ UNDER SECTION 5 OF THE HINDU
MARRIAGE ACT INCLUDE ‘TRANSGENDER’?
ISSUE-3
DOES THE SCOPE OF MARRIAGE BETWEEN TWO TRANSGENDERS EXTEND TO
OTHER ATTENDANT RIGHTS SUCH AS ADOPTION AND MAINTENANCE AND
WHETHER THE APPELLANTS ARE ENTITLED THE RIGHT TO HAVE A FAMILY?
8
SUMMARY OF ARGUMENTS
ISSUE-1DOES THE DEFINITION OF MARRIAGE UNDER HINDU MARRIAGE ACT
1955 MEAN ONLY BETWEEN A ‘MAN’ AND A ‘BRIDE’?
It is humbly submitted before the Hon’ble Court that the definition of marriage under the Hindu
Marriage Act, 1955 mean only a man and woman as bride. Hindus believed the institution of
marriage as a sacramental union as well as a holy union. Wife is not merely a Gruhapatni but
also Dharmapatni and Sahadharmini. According to Manu, husband and wife are united to each
other not merely in this life but even after death, in the other world. Marriage is a sacramental
union that implied as a sacrosanct union. Hindus conceived of their marriage as a union primarily
meant for the performance of religious and spiritual duties. Such a marriage cannot take place
without the performance of sacred rites and ceremonies. Secondly, a sacramental union implies
that it is a permanent union. Marriage is a tie which once tied cannot be untied. This implies that
marriage cannot be dissolved. Thirdly, the sacramental union means that it is an eternal union of
a man and women as per hindu law.
ISSUE-2DOES THE DEFINITION OF ‘BRIDE’ UNDER SECTION 5 OF THE HINDU
MARRIAGE ACT INCLUDE ‘TRANSGENDER’?
It is humbly submitted before the Hon’ble Court that the definition of bride does not include
transgenders. It is 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 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
petitioner is transgender and not a woman. Thus the statutory requirement set out in Section 5 of
the Hindu Marriage Act, 1955 has not been fulfilled.
9
ISSUE-3DOES THE SCOPE OF MARRIAGE BETWEEN TWO TRANSGENDERS
EXTEND TO OTHER ATTENDANT RIGHTS SUCH AS ADOPTION AND
MAINTENANCE AND WHETHER THE APPELLANTS ARE ENTITLED THE RIGHT
TO HAVE A FAMILY?
The gender of an individual as opposed to the sex of that individual, scientifically speaking, is
not merely restricted to the heteronormative idea of existence as male or female. The concept of
gender not only is related to the physical characteristics of a person, but also is inclusive of the
subtle psychological traits and a unique consideration of social interaction. Thus, gender is an
inclusive umbrella term which includes an array of varied gender schemes between the two poles
of heterosexual males and females. Since the ancient era, Vedic and Puranic literature have
recognized the presence of three genders, viz. heterosexual male, heterosexual female and the
tritiya prakriti or the third sex. The third gender category, commonly referred to as Hijras, in
India, can be described as a natural combination of male and female features to such an extent
that they cannot be categorized within the separate classification of two distinct binary genders,
i.e. male and female. Hijras are not men by virtue of anatomical appearance, and
psychologically they are also not women, though they are like women, but have no female
reproductive organs and they do not menstruate.
10
WRITTEN PLEADINGS
ISSUE-1DOES THE DEFINITION OF MARRIAGE UNDER HINDU
MARRIAGE ACT 1955 MEAN ONLY BETWEEN A ‘MAN’ AND A
‘BRIDE’?
It is humbly submitted before the Hon’ble Court that the definition of marriage under the Hindu
Marriage Act, 1955 mean only a man and woman as bride. Hindus believed the institution of
marriage as a sacramental union as well as a holy union. Wife is not merely a Gruhapatni but
also Dharmapatni and Sahadharmini. According to Manu, husband and wife are united to each
other not merely in this life but even after death, in the other world. Marriage is a sacramental
union that implied as a sacrosanct union. Hindus conceived of their marriage as a union primarily
meant for the performance of religious and spiritual duties. Such a marriage cannot take place
without the performance of sacred rites and ceremonies. Secondly, a sacramental union implies
that it is a permanent union. Marriage is a tie which once tied cannot be untied. This implies that
marriage cannot be dissolved. Thirdly, the sacramental union means that it is an eternal union of
a man and women as per hindu law. It is valid not merely in this life but in lives to come. The
main aim and objectives of this institution of marriage is to achieve cohabitation of man and
woman, holding the supreme values of Dharma (duty according to law and religion), Arth
(economic effort and achievement), Kama (love and procreation) and purusharth (best and noble
actions and deeds). These are the material determinants of the concept of marriage. Moreover,
the institution of marriage enjoins and obliges both husband and wife to live together under the
same roof and by common effort to achieve the good of both. The objects of a Hindu marriage
have been to uphold offspring or able to perform religious rites and sacrifices (which a man can
perform only along with his wife) and to have highest conjugal happiness and heavenly bliss for
the ancestors and oneself. The achievement of all these objectives is dependent upon the wife.
Mahabharat in its Chapter Anu Parva denotes that a wife is half part of the man and she is called
as “Ardhangini”, and the wife is medicine to a grievance husband.1 Section 5 of the said Act
contains conditions for a valid Hindu marriage which says marriage may be solemnized between
1
Chapter VI, “Conclusion”, available at http://shodhganga.inflibnet.ac.in/bitstream/10603/71410/15/15_
chapter%206.pdf
11
any two Hindus if the following conditions are fulfilled. If we notice there has been no mention
that the parties solemnizing marriage have to be a male and a female but they have added a
stipulation in Section 5(1)(b) that the parties shall be fit for procreation of a child.
THE DECISION OF HIGH COURT IS NOT ARBITRARY
The Transgender Persons (Protection of Rights) Bill, 2019 is still impending. In this case, while
the marriage was done according to Hindu customs and the Court cannot nullify marriage on
those grounds, the law defines marriage between a man and a ‘bride’. Even if we include
transgenders within the ambit of ‘bride’, the definition of ‘man’ cannot be changed or contested.
On these grounds, the Court declared the marriage invalid.
LITERAL INTERPRETATION OF THE STATUTE- HINDU MARRIAGE ACT
The Literal Rule, also known as the Plain-Meaning rule, is a type of statutory construction,
which dictates that statutes are to be interpreted using the ordinary meaning of the language of
the statute unless a statute explicitly defines some of its terms otherwise. In other words, the law
is to be read word for word and should not divert from its true meaning. It is the mechanism that
underlines textualism and, to a certain extent, originalism. To avoid ambiguity, legislatures often
include "definitions" sections within a statute, which explicitly define the most important terms
used in that statute. But some statutes omit a definitions section entirely, or (more commonly)
fail to define a particular term. The plain meaning rule attempts to guide courts faced with
litigation that turns on the meaning of a term not defined by the statute, or on that of a word
found within a definition itself. According to the plain meaning rule, absent a contrary definition
within the statute, words must be given their plain, ordinary and literal meaning. The first and
most elementary rule of construction is that it is to be assumed that the words and phrases of
technical legislation are used in their technical meaning if they have acquired one, and otherwise
in their ordinary meaning, and the second is that the phrases and sentences are to be construed
according to the rules of grammar. The words of a statute must prima facie be given their
ordinary meaning. Where the grammatical construction is clear and manifest and without doubt,
that grammatical construction ought to prevail unless there be some strong and obvious reason to
the contrary. When there is no ambiguity in the words, there is no room for construction. No
single argument has more weight in statutory interpretation than the plain meaning of the word.
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When the language is not only plain but admits of but one meaning the task of interpretation can
hardly be said to arise. The duty of court of law is simply to take the statute as it stands, and to
construe its words according to their natural significance. If the words of the statute are in
themselves precise and unambiguous, then no more can be necessary than to expound those
words in their natural and ordinary sense. It is an elementary principle of construction of statutes
that the words have to be read in their literal sense.2 The courts are enjoined to take the words as
used by the legislature and too give them the meaning which naturally implies. If the language
used by the legislature is clear and unambiguous, a court of law at the present day has only to
expound the words in their natural and ordinary sense; ‘Verbis plane expressis amnino standum
est’.3 Thus in this case also, we shall go by the literal interpretationof the statute.
2
Molar Mal (deceased) v. Kay Iron Works (Pvt.) Ltd., (2000) 4 SCC 285.
3
Piara Singh v. Mukla Singh, ILR 4 Lah 325-26.
13
ISSUE-2DOES THE DEFINITION OF ‘BRIDE’ UNDER SECTION 5 OF
THE HINDU MARRIAGE ACT INCLUDE ‘TRANSGENDER’?
It is humbly submitted before the Hon’ble Court that the definition of bride does not include
transgenders. It is 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 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
petitioner is transgender and not a woman. Thus the statutory requirement set out in Section 5 of
the Hindu Marriage Act, 1955 has not been fulfilled.
Hindu marriage is a sacrament as well as a contract in modern society. The aims, forms, customs,
and functions of Hindu marriage are changing in present times. Earlier, dharma, artha, kama and
moksha were the prime aims of Hindu marriage. But today, in order of priority, with regard to
the traditional aims have been reversed with sexual pleasure as prime priority followed by praja
and dharma. Although, most of the marriages are performed by the sacred rites and rituals but
significantly traditional philosophy of Hindu marriage are kept changing. The traditional concept
of Hindu marriage is totally replaced by the individualist nature of society. Moreover, the
modern objects of marriage are to fulfill their loneliness and personality, to bring division of
labor, to support their ego, attain their common goals, legitimized their sexual relation and love.
Hence, Hindu orthodox ideology, customs, attitude, behavior and acceptable social norms come
in conflict with the new emerging values and beliefs of modern Hindu social life. The modern
form of Hindu marriage, mate selection process and age at marriage are result of modern
legislation. The rules regard to Varna, castes, sub caste, endogamy and exogamy, sapinda and
gotra are prohibited in modern society. Moreover, the attitude towards the cousin marriage is
also changing. Mate selection process has been changed and traditional factors in mate selection
process are no longer associated in arranged marriages. Moreover, urban Hindu society is turning
towards modern sources of mate selection such are newspaper advertisement, family
connections, matrimonial web sites, marriage bureaus, match makers, NGOs etc. In present
times, family, parents and children are given an equal contribution to select a spouse. Society has
14
learnt an art of spouse selection and understands the demands of modern times. The spouse as
per Hindu law is always a man and woman and definitely not transgenders.
A transwoman is not a bride under the Hindu Marriage Act.Transgender people are individuals
of any age or sex whose appearance, personal characteristics, or behaviors differ from
stereotypes about how men and women are “supposed” to be.
15
ISSUE-3DOES THE SCOPE OF MARRIAGE BETWEEN TWO
TRANSGENDERS EXTEND TO OTHER ATTENDANT RIGHTS SUCH AS
ADOPTION AND MAINTENANCE AND WHETHER THE APPELLANTS
ARE ENTITLED THE RIGHT TO HAVE A FAMILY?
The scope of marriage between two transgenders are not extended to maintenance and adoption.
Marriage is believed to be one of the most essential constituents of a person’s identity, both in a
socio-economic and in a politico-legal sense. The institution of marriage, which is a codified and
legally identifiable relationship between two people, has immense public significance, as it
garners much footing in respect of the rights and obligations, especially those of property,
succession, inheritance and such related rights, which eventually stem from the solemnization of
amarriage. Today, marriage is not only a recognized civil right that belongs to each and every
member or citizen of the state, but also a concept that has both national and international
acceptance.3 It is on this account that it can be said that the enforcement of marriage as an
individual’s right is imperative on the state, particularly in regard to all such laws and policies
that emanate from it and, further, regulate the interpersonal domain of marriage. When marriage
is such an essential civil right that is fundamental to each and every citizen of the country, is it
justifiable to ostracize people merely on the grounds of their non- conformity to a stereotyped
differentiation of binary genders? Sadly, even though the right to marry as per one’s own choice
has been recognized as a fundamental right, the contemporary social scenario which third gender
people are facing strips them of this basic right. The personal law recognizing Hindu marriage
and law enforcement agencies make no effort to guarantee third gender people their fundamental
right to marry any individual of their own choice.
The gender of an individual as opposed to the sex of that individual, scientifically speaking, is
not merely restricted to the heteronormative idea of existence as male or female. The concept of
gender not only is related to the physical characteristics of a person, but also is inclusive of the
subtle psychological traits and a unique consideration of social interaction. Thus, gender is an
inclusive umbrella term which includes an array of varied gender schemes between the two poles
of heterosexual males and females. Since the ancient era, Vedic and Puranic literature have
recognized the presence of three genders, viz. heterosexual male, heterosexual female and the
16
tritiya prakriti or the third sex. The third gender category, commonly referred to as Hijras, in
India, can be described as a natural combination of male and female features to such an extent
that they cannot be categorized within the separate classification of two distinct binary genders,
i.e. male and female.
Hijras are not men by virtue of anatomical appearance, and psychologically they are also not
women, though they are like women, but have no female reproductive organs and they do not
menstruate.
Thus we do not entitle them any right of marriage and thus no right of maitenance and adoption.
17
PRAYER
Wherefore in the lights of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully prayed before this Hon’ble Court that it may be pleased to HOLD that
• The bride under Section 5 of the HMA does not includes transgenders.
• The transgenders are not entitled to right to family and right to maintenance and
adoption.
AND/OR pass any other order or orders as this Hon’ble Court may deem fit and proper in the
circumstances of the case and in the interest of Justice, Equity and Good Conscience.
For this act of kindness & justice the appellant shall be duty bound and forever pray.
All of which is most humbly and respectfully submitted.
S/d
COUNSEL FOR THE RESPONDENT
18
