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IN THE SUPREME COURT OF INDIANA

APPEAL UNDER ART. 133 OF CONSTITUTION OF INDIANA

IN THE MATTER OF:

SHANTI & POOJA & ORS………………………..PETITIONER(S)

V/S.

KUTUMBA SAMITI ……………………………….. RESPONDENT(S)

AN APPEAL UNDER ART. 133 OF CONSTITUTION OF INDIANA,

MEMORANDUM ON BEHALF OF THE RESPONDENTS

SHANTI & POOJA & ORS.

VS.

KUTUMBA SAMITI

FOR THE KIND ATTENTION OF

THE HON’BLE JUSTICE OF THE SUPREME COURT OF INDIANA

THE HUMBLE PETITION OF THE RESPONDENTS ABOVE NAMED

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

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TABLE OF CONTENTS

❖ TABLE OF CONTENTS…………………………………………………………………………… PageNo.2

❖ INDEX OF AUTHORITIES………………………………………………………………………………… PageNo.3
❖ STATEMENT OF JURISDICTION…………………................................................ PageNo.5
❖ STATEMENT OF FACTS……………………………………………….............................. PageNo.6-7
❖ STATEMENT OF ISSUES………………………..……...……...................................... PageNo.8
❖ SUMMARY OF ARGUMENTS……………………...……...…………………….............. PageNo.9
❖ ARGUMENTS ADVANCED………………………...……...………………..…………………… PageNo.10-16

DOES THE DEFINITION OF MARRIAGE UNDER HINDU MARRIAGE ACT 1955 MEAN ONLY
BETWEEN A 'MAN' AND A' BRIDE’? …......Page No. 10

DOES THE DEFINITION OF 'BRIDE' UNDER SECTION 5 OF THE HINDU MARRIAGE ACT INCLUDE
‘TRANSGENDER’? ………………………………..Page No. 12

DOES THE SCOPE OF MARRIAGE BETWEEN TWO TRANSGENDER PEOPLE EXTEND TO OTHER
ATTENDANT RIGHTS SUCH AS ADOPTION AND MAINTENANCE?..................Page No.13

WHETHER THE APPELLANTS ARE ENTITLED TO THE RIGHT TO HAVE A FAMILY?... Page No.14

❖ THE PRAYER………………………...……...………………..…………………………………PageNo.17
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INDEX OF AUTHORITIES

1 . CASES:

01 Aswini Kumar Ghose v. Arbinda Bose AIR 1953 SC 75 (India).

02 B.K Garg v. S.S Azad AIR 1957 All 37 (India).
03 B. R. Reddy vs. State of Madras 1952 AIR 149 (India).
04 Babulal Parate v. State of Maharashtra (1961) 3 SCR 423
05 Baradakanta Mishra vs The Registrar Of Orissa High Court (1976) 3 SCC 327
06 Brahma Prakash Sharma & Ors. v. State of Uttar Pradesh 1954 SCR 1169
07 C.K. Daphtary v. O.P. Gupta (1971) Supp. S.C.R. 76
08 D.C. Saxena v. Hon’ble Chief Justice of India 1996 Cri LJ 3274
09 DC Saxena v. The Hon’ble Chief Justice of India 1996 SCC (7) 216
10 Debabrata Bandopadhyaya v. State of West Bengal AIR 1969 SC 189 (India).
11 E.M. Sankaran Namboodripad v. T. Narayanan Nambiar 1970 Cri LJ 1670
12 E. T. Sen v. E. Narayanan AIR 1969 Del 201
13 In re, Arundhati Roy (2002) 3 SCC 343 (India).
14 In re Prashanath Bhushan (CRL). No 1 of 2020
15 In Re: S. Mulgaokar (1978) 3 SCC 339 (India).
16 In re: ‘G’, a Senior Advocate of the Supreme Court AIR 1954 SC 557
17 In Re: Reference by Judicial Magistrate First class (1987) 89 BOM LR 290
18 In Re: Vinay Chandra Mishra 1995 Cri LJ 3994
19 Lakhan Singh v. Balbir Singh (1953) 1 ALL. 796
20 Legal Remembrancer v. BB Das Gupta (1953) Pat. 1069
21 Leo Roy Frey v. R. Prasad (1958) Punj. 1723
22 Manik Chandra Gupta v. Virendra Kumar 1979 Cri LJ 412 (All) (India).
23 Mankad Probodh Chandra v. Sha Panlal Nanchand AIR 1954 Kutch 2 (India).
24 Pennekamp v. Florida (1946) 90 Led 1295
25 Perspective Publications (P) Ltd. V. State of Maharashtra AIR 1971 SC 221 (India).
26 Pritam Lal v. High Court of M.P AIR 1992 SC 904
27 Rex v. Evening Standard Ltd (1924) 40 TLR 833
28 S.P. Gupta v. Union of India 1981 Supp SCC 87
29 Sahara India Real Estate Corporation Limited Vs. SEBI (2012) 10 SCC 603
30 Schenck v. United States (1918) 249 US 47
31 Shamim v. Zinat 1971 AWR 203: 1971 Cri LJ 1586 (India
32 State v. Biswanath Mahapatra AIR 1955 Ori 169 (India)
33 State v. Ram Chander (’59) A. Punj. 41
34 The State of Bombay vs. P AIR 1959 BOM 182

2. BOOKS

1 . CONSTITUTION OF INDIA, 1949

2 . HINDU MARRIAGE ACT, 1955
3 . HINDU SUCCESSION ACT, 1956
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4 . HINDU ADOPTION AND MAINTENANCE ACT, 1956

5 . TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
6 . INDIAN PENAL CODE, 1860.
7 . SPECIAL MARRIAGE ACT, 1954.
8 . TRANSGENDER FAMILY LAW BY JENNIFER L. LEVI’S

3. ONLINE RESOURCES

1 . http://www.manupatra.in/
2 . https://login.westlawindia.com/
3 . http://www.scconline.com/
4 . http://www.airwebworld.com/content/

4. STATUTES REFERRED

1 . CONSTITUTION OF INDIA,1949
2 . HINDU MARRIAGE ACT, 1955
3 . HINDU SUCCESSION ACT, 1956
4 . HINDU ADOPTION AND MAINTENANCE ACT, 1956
5 . TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
6 . INDIAN PENAL CODE, 1860.
7 . SPECIAL MARRIAGE ACT, 1954.
8 . INTERNATIONAL HUMAN RIGHTS ACT, 1998

STATEMENT OF JURISDICTION

The petitioner has approached this Hon’ble Supreme Court of India under the Article-133,
clause- (1), sub-clause-(a) of the Constitution of India,1949.
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Constitution of India, 1949 : Article 133:

Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters

1. An appeal shall lie to the Supreme Court from any judgment, decree or final order in a
civil proceeding of a High Court in the territory of India if the High Court certifies under
Article134A.

(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court

2. Notwithstanding anything in Article 132, any party appealing to the Supreme Court under
clause (1) may urge as one of the grounds in such appeal that a substantial question of law
as to the interpretation of this Constitution has been wrongly decided.

3. Notwithstanding anything in this article, no appeal shall, unless Parliament by law

otherwise provides, lie to the Supreme Court from the judgment, decree or final order of
one Judge of a High Court.

ALL OF WHICH IS MOST HUMBLY AND RESPECTFULLY SUBMITTED ON BEHALF OF THE

RESPONDENTS MENTIONED IN THE CASE TITLE OF THE WRIT PETITION BEFORE THIS HON’BLE
COURT.

STATEMENT OF FACTS

1. Shanti and Pooja are transgender. Pooja had undergone sex-reassignment surgery at the age of
19. Shanti was born male; however, she identifies as a woman. Both are 35 years and work as
office assistants in different corners of the city. Shanti and Pooja live in Rupnagar with other
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transgender people in a remote part and manage their affairs through meager salaries and
begging.

2. Shanti was abandoned by her parents when she turned 12, and Pooja decided to run away
from home, unable to understand her sexuality and being traumatized by the constant
discrimination she faced by her friends and family due to her effeminate behavior and the
pressure of conformity to masculine identity. She was stopped from attending school after 9 th
standard, although she was a bright student excelling in academics and sports.

3. They both found a safe refuge after encountering Munnamma, a renowned transgender
person in Rupnagar. She asked them to stay with her and made efforts to provide them jobs
using her contacts. Since that accidental meeting, Shanti and Pooja have lived with 20 other
transgender people in their house called Prakriti for the last 10 years.

4. Shanti and Pooja fell in love over the course of time and visited movie halls, parks and
sometimes went 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,
Pooja's family finds where she lives through some relatives who had seen Pooja at a vegetable
market. Pooja's family searched for her, found her place and decided to visit her only to be
shocked to find her transitioned, and the knowledge about her relationship with Shanti only
further angered them. After a scuffle between Pooja's friends and family, the family decides to
leave but only after delivering threats towards both Shanti and Pooja. Shocked by the events,
both Shanti and Pooja become cautious and decide to get married and try to move places as
soon as possible.

5. Shanti's uncle Rajan used to visit Shanti's parents regularly and took a keen interest on Shanti's
well-being. When Shanti was abandoned, she stayed with Rajan for a few years and continued to
remain in touch after she decided to live by herself. It was only in October that Shanti told Rajan
of Pooja and their plans to get married and live together as a couple. Rajan was surprised at this
new development but, being a well-wisher, wanted to help her out. He had called her to meet for
lunch on the same day Pooja's parents visited Shanti. After hearing about the scuffle, Rajan went
with Shanti to a police station near his house to seek protection for Shanti and Pooja in case they
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were to encounter any danger.

6. Two weeks after the events with Pooja's family, Shanti and Pooja, along with their friends, met at
the Mata ji temple in Hanuman gadhi 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 transgender people 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 transgender people.

7. They approached the High Court of Kushigiri 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 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."

8. While Kutumba Samiti celebrated the verdict, Shanti and Pooja were aggrieved and decided to
go on appeal. Along with other transgender organizations in the country, they approached the
Supreme Court of Indiana to recognize their marriage and extend marital rights.

STATEMENT OF ISSUES

1. Does the definition of marriage under Hindu Marriage Act1955 mean only
between a 'man' and a 'bride'?
2. Does the definition of 'bride' under Section 5 of the Hindu Marriage Act
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include 'transgender'?
3. Does the scope of marriage between two transgender people extend to other
attendant rights such as adoption and maintenance?
4. Whether the appellants are entitled to the right to have a family?

SUMMARY OF ARGUMENTS

ISSUE 1: DOES THE DEFNITION OF MARRIAGE UNDER THE HINDU MARRIAGE ACT OF 1955 MEAN
ONLY BETWEEN A “MAN” AND A “BRIDE”?

It is humbly submitted to this Hon’ble Court that in the given factual matrix the definition of the
term ‘Marriage’ under Hindu Marriage Act, 1956 ‘Marriage’ refers to solemnization of ties between
a ‘man’ and a ‘bride’’. A person who is born as intersex but recognises herself as a woman should
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be discussed as “bride” under Section 5 of the said act, but there is no explanation as to inclusion
of transwoman or transgender in the definition of ‘man’. Hence, the appellants cannot validate the
marriage as the definition of ‘man’ cannot be changed or contested. The High court of Rupnagar
expressed the same while dismissing the matter.

ISSUE 2: DOES THE DEFINITION OF “BRIDE” UNDER SECTION 5 OF THE HINDU MARRIAGE
ACT1955 ALSO INCLUDE TRANSGENDER?

It is humbly submitted that Section 5 of Hindu Marriage Act 1955 which talks about the conditions
of a Hindu marriage, refers to “party” as “groom”, and “bride”. The word Bride as mentioned in
Section 5(iii) literally means, “woman who has just married or is going to be married”, the word
‘Transgender’ finds no place in the Act. Hence, the relief sought by the appellants cannot be
granted unless several laws are altered and therefore, the marriage between Shanti and Pooja
does not have any legal sanction as they do not fall within the definition of the term ‘bride’ under
Section-5 of Hindu Marriage Act,1955

ISSUE 3: WHETHER THE SCOPE OF MARRIAGE BETWEEN TWO TRANSGENDER PERSONS EXTEND
TO OTHER ATTENDANT RIGHTS SUCH AS ADOPTION AND MAINTENANCE?

It is to bring before the Hon’ble Supreme court of Indiana that The Hindu Adoption Marriage Act
under Sections 7 & 8 recognizes a valid adoption only if it is done by a male or female, and thus,
third genders are out of the scope of application of this Act. Also, by virtue of Sections 4 & 5 of the
said Act, adoptions by virtue of the custom of reet in Transgenders have been delegitimized, by
providing overriding powers to the provisions of the Act over customs. Hence, no statutory
provisions have yet been made recognizing transgenders valid for adoption.

ISSUE 4: WHETHER THE APPELLANTS ARE ENTITLED TO THE RIGHT TO HAVE A FAMILY?

It is to bring before the Hon’ble Supreme court of Indiana that it’s undoubtable that the appellants
are not entitled to the Right to have a family especially in association of having or adopting a child
as a Transgender couple. It is to be noted that extending marriage and family rights to same-sex
couples would undercut the conventional purpose of marriage. Therefore, the appellants should
not be granted the right to have a family.

ARGUMENTS ADVANCED

1. Does the definition of marriage under Hindu Marriage Act, 1955 mean only between a ‘man’
and a ‘bride’?

1.1 Irrespective of standpoint of the appellants the definition of marriage under HMA only
includes a man and a bride.
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The institution of marriage, which is a legally recognized and legally defined relationship between
two persons, has a great social significance, as it greatly enjoys rights and obligations, especially
those of property, succession, inheritance and related rights, ultimately from the institution of
marriage. Hindu marriage is “a religious sacrament in which a man and a woman are bound in a
permanent relationship for the physical, social and spiritual need of dharma, procreation and
sexual pleasure.” Section 5 of this Act prescribes the essentials of a Hindu marriage. As per this
section, two Hindus, one of whom can be identified as bride and other the bridegroom, can
solemnize a marriage, unless it is barred by subsection (iii), (iv), and (v) of the section1. Indian
society is basically “a socially recognized union of two individuals which is governed either by
uncodified personal laws or codified statutory laws. There is no acceptance of the institution of
marriage between two individuals of the same gender either in personal laws or codified statutory
laws. Hence, whether legal sanction can be accorded to same sex marriages is not an issue that can
be decided by way of judicial adjudication but by the legislature. The jurisprudence of any nation
be it by way of codified law or otherwise, evolves, based on societal values, beliefs, cultural history
and other factors.

Therefore, it is submitted before the hon’ble court that the appellants petition does not stand on
the fundamental grounds of a marriage under Hindu Law.

1.2 Scope and meaning of the words ‘man’ and ‘bride’ under HMA, 1955

As per Section 5 of this Act, only a marriage of a bride and a bridegroom is valid and recognized.
The terms “bride” and “bridegroom” are gendered terms. It necessarily translates to “woman” and
“man” on their wedding day. Thus, it provides no recognition to marriages for the third gender. It
is to be noted that in the leading case of "Arun Kumar vs The Inspector General Of Registration on
22 April, 2019" the Hon’ble court stated that, "a person who is born as intersex but recognizes
herself as a woman should be discussed as “bride” under Section 5 of the Hindu Marriage Act,
1955. Thus, directing that the marriage within a male and the transwoman be recorded under the
act, and a transexual was also a “bride” and the term applied in the Act would not significantly
indicate only to a woman. However, no law regarding the same has been enacted yet and one
cannot rely merely on precedent. Since it is a normal understanding that the husband is considered
to be a male and the wife is considered to be a female. But in case of LGBT marriage since both the
partners are of the same gender this definition can’t be applied.

Further, If the meaning of the terms husband and wife are not properly interpreted then it will
result in ambiguity with regards to the application of the law. It is submitted before the hon’ble
court that to be noted that for the marriage to be solemnized between a 'Man' and 'a women or
Transgenders or others' at least one party to the marriage should be a man. In the present matrix
of facts both the appellants i.e., Shanti and Pooja are transwomen and neither party to the
marriage falls into the category of a 'man'.
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1.3 Customs as a source of law

Codified Hindu Law has given an important place to the custom and usages and considered it as a
parent of Hindu law. Custom under ‘Hindu Marriage Act 1955’ has been used in three situations.
Firstly, the marriages can be solicited as per the customary tradition which is followed by the party.
Secondly, divorce can be obtained by parties on the prevailing custom and usages. Thirdly,
adoption can be done as per the customary rules. Section 3 of Hindu Marriage Act, 1955 defines
custom as a rule which is followed for a long time and has obtained the force of law among people
of the Hindu community. It also stated that custom must be ancient, must be reasonable, and it
should not be in derogation to the laws of the country. Moreover, such a custom must not be
immoral, or opposed to public policy, or expressly forbidden by law. It is pertinent to note that
Customs should not be against the moral values or set of ethical standards that the society follows.
Marriage also is a customary practice in India and can be defined as “a religious sacrament in
which a man and a woman are bound in a permanent relationship for the physical, social and
spiritual need of dharma, procreation and sexual pleasure.” Hence the fundamental existence of
the institution of marriage is based upon our old aged customs that it is a ritual to be performed
between a man and a woman. In Hurpurshad v. Sheo Dayal the Privy Council observed that “a
custom is a rule which, in a particular family, or a particular caste or community, or in a particular
district, has from long usage obtained the force of law. It must be ancient, certain and reasonable”.
Allowing same-sex marriages will hamper the customary rule of institution of marriage and will be
immoral and against public policy.

Burden of proof / Onus of proof - The person who is ascertaining the establishment of the custom
which is in derogation to the laws must prove the existence of such custom and so the burden of
proof lies upon such person. Conversely, when a custom has been proved, the burden of proving
its discontinuance lies on the party who alleges such discontinuance. In the case of Harihar Prasad
Singh V. Balmiki Prasad Singh the Supreme Court held that burden of proof lies upon a person who
claims its existence and such person have to prove that the custom is valid enough to be
established contrary to laws. Hence, the burden of proof lies on the appellants to disregard the
customary laws of marriage and establish as to why such a custom is arbitrary and violative.

1.4 Validity of a marriage between two transgender women

It is humbly submitted before the Hon’ble Supreme court that as mentioned a marriage under
Hindu marriage act, 1955 can only be solemnized between a bridegroom and bride. In Navtej Singh
Johar case, the Supreme Court’s ruling granted same sex couples the freedom to lead a dignified
private life but allows them only ‘basic right to companionship so long as such companionship is
consensual, free from the vice of deceit, force, coercion, and does not result in the violation of
fundamental rights of others . It is pertinent to note that Decriminalization of section 377 of the
Indian Penal Code does not automatically translate into a Fundamental Right for same sex couple
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to marry. Therefore, the appellants plea here to recognize and validate their same sex marriage,
considering both the parties to the marriage are transwomen does not stand on the basic grounds
required for a marriage.

2. Does the definition of ‘bride’ under Section 5 of the Hindu Marriage Act include ‘transgender’?

2.1 Definition of bride under Hindu Marriage Act, 1955

As, the term referred the dictionary meaning of the word ‘bride' was presented which ordinarily
means ‘women on her wedding day’. to any special specification of gender. As, per the Hindu
Marriage Act. “The word Bride as in Mentioned section 5(iii) [of the Hindu Marriage Act] literally
means as, “woman who has just married or is going to be married, the word Transgender finds no
place in the Act,” It is to bring before the Hon’ble Supreme court of Indiana that 'Transgenders' are
not included under the Hindu Marriage Act, "Section 5" which provides the conditions of a Hindu
marriage, refers to “party” as “groom”, and “bride”.

2.2 No legislation in force to proclaim the same point

It is humbly submitted before the hon’ble court that the appellants contention of inclusion of
‘transwoman’ in the definition of bride under Hindu marriage act 1955 is not a point delineated in
legislation. It is a normal understanding that men is considered to be the bridegroom and the
women is considered to be a bride. But in case of transgender marriage since both the partners are
of the same gender this definition can't be applied.

Though the judgement of Madras High Court Arun Kumar v the Inspector General of Registration,
the Court stated that, "a person who is born as intersex but recognizes herself as a women should
be discussed as "bride" under section 5 of the Hindu marriage act, 1955" cannot be considered as
an undisputed point of law. For this we can refer to the case Commissioner of Income Tax v M/s
Sun Engineering Works Private Limited, wherein it was held that any interim order passed even by
Supreme court is limited to that particular case and should not be used as precedent for other
cases.

Also, doctrine of separation of powers which is an inherent part of basic structure of the
constitution of India clearly states that there should be separation of powers between various
organs of the state. Hence, the law-making power should rest with the legislature and judiciary
focus on interpretation of the laws. Following the same principle, the appellants cannot rely on the
precedent in the case of Arun Kumar supra as there is no law explaining the inclusion of
transwoman in definition of bride. Hence the appellants contention cannot be maintained. Hence,
the marriage between Shanti and Pooja is not valid and does not have any legal sanction. Also,
they do not fall within the definition of the term ‘bride’ under Section-5 of Hindu Marriage
Act,1955.
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3. Does the scope of marriage between two transgender sex tend to other attendant rights such
as adoption and maintenance?

3.1 Do transgender couples have adoption and maintenance rights under HAMA?

It is to be noted that if a transgender wish to be a parent, its ideas may include pregnancy with its
partner, the birth of another person, or the adoption of a partner or partner’s children in a past
relationship. In India, adoption is governed by both secular as well as religious laws. In the case of
Hindus, it is governed by Hindu adoption and maintenance Act, 1956. Now, the Hindu Adoptions
and Maintenance Act, 1956 lays out a gender bias in adoption. Section 7 and 8 of The Hindu
Adoptions and Maintenance Act, 1956 defines the capacity of a male and female Hindu
respectively to take in Adoption. A married female cannot adopt, not even with the husband’s
consent, unless her husband dies or suffers from any disability or renounces the world or so. On
the other hand, a husband may adopt with the consent of the wife. In our case, even if the scope
of marriage lies between the transgenders, Shanti is a man (biologically) but considers herself to be
a woman, and Pooja on the other hand went through sex-reassignment surgery. Thus, even if we
consider both Shanti and Pooja to be treated as ‘women’, then also they’re not eligible to adopt as
long as they both are married.

Moreover, the adoption regulation act does not allow a single man to adopt a girl child but a
similar restriction does not apply to a woman and she can adopt a male child. This is different from
HAMA where even a single male can also adopt a girl child provided there is an age gap of twenty
years between the two.

Since there is a different set of adoption rules applied in the case of men and women thus, the
applicability of such laws with regards to trans couple will lead to ambiguity.

Although Section 377 of IPC has been decriminalized, still the law debars LGBTQIA+ community
from adopting children altogether. It is to be noted that Constitutions and statutes usually do not
address the adoption rights of LGBT persons. In case of adoption which doesn’t involve their
natural guardians, there is a higher level of scrutiny where the transsexuals must prove before the
court that they are eligible under section 7 or section 8 of the HAMA. The judicial decisions often
determine whether they can serve as parents either individually or as couples.

3.2 No adoption rights under juvenile justice act

The Juvenile Justice Act is a secular legislation. Section 41(6) of this Act is an enabling provision
which allows ‘any person’ to adopt a child. The term ‘person’ is not gendered.

As a result, both male and female transsexuals can adopt a child under this Act. Hence, apart from
enabling people from all religious communities to adopt a child, it also allows adoption to happen
irrespective of the gender of the parent. However, the act does not specify the position of law for
 P a g e | 14

transgender couples right to adoption. Section 41(6) only mentions a person right to adopt hence
the definition of person is nowhere clarified. Whether transgender couples come under the
purview of the definition of person under this act is still vague.

3.3 Transgenders are not entitled to maintenance rights

The Adoptions and Maintenance Act of 1956 dealt specifically with the legal process of adopting
children by a Hindu adult, and with the legal obligations of a Hindu to provide "maintenance" to
various family members including their wife or parents, and in-laws. The term transgender have no
place in HAMA thereby not granting adoption and maintenance rights to transgenders.

For instance, Section 27(1-A) of the Special Marriage Act, 1954 provides the grounds on which a
wife can take divorce but in case of LGBT marriages there is confusion regarding the term wife. So,
reading into the if transgenders do not have a right to divorce, then right to claim maintenance
remains out of question.

Hence, it is humbly submitted before the hon’ble court that even if the scope of marriage lies
between the transgenders, Shanti is a man (biologically) but considers herself to be a woman, and
Pooja on the other hand went through sex-reassignment surgery. Thus, even if we consider both
Shanti and Pooja to be treated as ‘women’, then also they’re not eligible to adopt as long as they
both are married.

4 Whether the appellants are entitled the right to have a family?

4.1 Is right to family a fundamental right of the appellants?

Article 21 of the constitution which embodies the right to life and personal liberty is the most
organic and progressive provision in the constitution. A plain reading into the article 21 gives an
insight that privacy is an important facet protected by article 21. However, one cannot extend the
scope of the article as per one’s own whims and fancies as the article is bounded by certain
restrictions also. The article does not explicitly state the right to family as a fundamental right. The
Supreme court in the case of in the Navtej Singh Johar V. UOI has said that “article 21 does not
extend the right to privacy to include a fundamental right in the nature of a right to marry by two
individuals of same gender”. The appellants therefore cannot be extended the right to adopt or to
start a family in the view of this article 21. Moreover, it is not “permissible” for the court to
override the legislative intent with regard to limiting the legal recognition of marriage to
heterosexual couples. The fundamental right under Article 21 is subject to procedure established
by law and the same cannot be expanded to include the fundamental right for a same sex marriage
to be recognized under the laws of the country which in fact mandate the contrary. Marriage
between two individuals of the same gender is “neither recognized nor accepted in any uncodified
personal law or any codified statutory law” and so does the right to start or have a family.
 P a g e | 15

4.2 Denial does not amount to violation of article 14 and 15.

It is submitted before the hon’ble court that equality under article 14 means that all persons
should be treated equally no matter whether they are poor or rich, male or female, upper caste or
lower caste. This state cannot provide any special privileges to anyone in the country. However,
the court while giving the test of reasonable classification in the case of Ram Krishna Dalmia v.
Justice Tendolkar, described the jurisprudence of equality before the law and that there is a
dependable assumption in favour of the constitutionality of a rule and the burden is upon him who
attacks it to demonstrate that there has been a reasonable transgression of established
constitutional standards. Since article 14 forbids class legislation and not reasonable classification
the distinction between man, woman and transgender does not amount to irrational classification.
The court also upholding the validity of Sec 377 has stated that it did not create any class and was
applicable to both heterosexuals and homosexuals equally. It criminalized the act and not the
person. Also, Article 15 prohibits discrimination only on the ground of gender and not on the
ground of sexual orientation. This is evident from the fact that Article 15(3) provided for special
provisions for women and children, thereby implying that Article 15 covered only women in its
ambit. Thereby the appellants contention of violation of their rights under articles 14 and 15 does
not stand on the grounds of constitutional morality7. There has been no discrimination made
against the appellants thereby no violation of their fundamental rights has occurred.

4.3 No violation to appellants right under Article 19 and 25.

Article 19 which talks about freedom of speech and expression comes with a set of reasonable
restrictions on such freedom. Freedom to express does not means one can alter the boundaries of
morality and decency. The test of compelling State interest was satisfied and whether enforcement
of morality is a sufficient enough reason to restrict the fundamental rights. Since, decency or
moralities are constituted one of the grounds of reasonable restrictions on the freedom of speech
and expression under Article 19(2).

Section. The court in the Ranjit D. Udeshi v. State of Maharashtra held that the Courts needed to
balance between freedom of speech and public decency and morality. Hence, allowing same sex
marriages is against the fundamental principle of morality and decency. It is to be noted that
extending marriage rights to same-sex couples could undercut the conventional purpose of
marriage. Also, monogamous heterosexual marriages contend that same-sex relationships cannot
be considered marriages because marriages, by definition, necessarily involves the uniting of two
members of the opposite sex.

4.4 Inferior family argument

Another reasoning behind not allowing same-sex couples to adopt is that every child must be able
to know the value of both a mother and a father. The children of same-sex couple are bound to
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feel different than other children in the society since they will not have traditional mother and
father couples as their parents. Thus same-sex couples should be denied the right to adopt as the
child should not be raised in an “inferior family”

It is humbly submitted before this hon’ble court that the appellants cannot be granted any
extended rights to family and maintenance as the appellants are not regarded as a couple or
person who under the law have a right to start a family.

PRAYER

In light of the issues raised, arguments advanced and authorities cited, it is humbly

Prayed Before the Honourable Supreme court of Indiana to be pleased to:

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DECLARE that Shanti and Pooja are not entitled to marriage, adoption and maintenance as per
Hindu laws.

HOLD & ADJUDGE that Transgenders are not covered under the definition of ‘bride’ under Hindu
Succession Act, 1955 and Shanti and Pooja are not entitled to start a family together. Also, the
transgender marriage is not only against the moral principles of Hindu religion taking from which
customs and usages is Hindu marriage act,1955 made but also against the order of nature
promotion of which may lead to society imbalance and threat to mankind.

Or the Honourable Supreme court of Indiana may pass any other order or decree as it deems fit in
the interest of justice, equity, and good conscience.

And for this act of kindness, the petitioners shall as duty bound ever humbly pray.

AND/OR Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.

All of which is most humbly and respectfully submitted.

SD/-

Counsel for the Respondent

Date: 30.08.2024