Moot Court - Same Sex Marriage PDF

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DR. M.V.V MURTHI 2ND NATIONAL MOOT COURT COMPETITIONMEMORIAL FOR CLAIMANT 1LLB-V PRACTICAL PAPER III (MOOT COURT, PRE TRIALPREPARATIONS AND PARTICIPATIONS IN TRIAL PROCEEDINGS)WRITTEN MEMORIAL FOR MOOT COURT 1BEFORETHE HON’BLE SUPREME COURT OF HINDYAAPPEAL UNDER ARCTICLE 133 OF THE CONSTITUTION OF H...

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LLB-V PRACTICAL PAPER III (MOOT COURT, PRE TRIAL PREPARATIONS AND PARTICIPATIONS IN TRIAL PROCEEDINGS) WRITTEN MEMORIAL FOR MOOT COURT 1

BEFORE THE HON’BLE SUPREME COURT OF HINDYA

APPEAL UNDER ARCTICLE 133 OF THE CONSTITUTION OF HINDYA

IN THE MATTER OF

RANI AND SHEELA AND OTHERS (APPELLANT) VERSUS KUTUMBHA SAMITI (RESPONDENT)

SUBMITTED BY: Shruti Priya Sharma (0191LLB009) Shefali Shokeen (0191LLB013)

LIST OF CONTENTS

TABLE OF ABBREVIATIONS………………………………………………………………3 INDEX OF AUTHORITIES…………………………………………………………………..4 STATEMENT OF JURISDICTION…………………………………………………………..6 STATEMENT OF FACTS……………………………………………………...……….…….7 STATEMENT OF ISSUES……………………………………………...……………….……8 SUMMARY OF ARGUMENTS……………………………………………………………...9 ARGUMENTS ADVANCED………………………………………………………………..11 ISSUE 1: DOES THE DEFINITION OF MARRIAGE UNDER HINDU MARRIAGE ACT, 1955 MEAN ONLY BETWEEN A ‘MAN’ AND A ‘BRIDE’?...................................11 ISSUE 2: DOES THE DEFINITION OF ‘BRIDE’ UNDER SECTION 5 OF THE HINDU MARRIAGE ACT INCLUDE ‘TRANSGENDER’?................................................13 ISSUE 3: DOES THE SCOPE OF MARRIAGE BETWEEN TWO TRANSGENDER SEX TEND TO OTHER ATTENDANT RIGHTS SUCH AS ADOPTION AND MAINTENANCE?...................................................................................................................14 ISSUE 4: WHETHER THE APPELANTS ARE ENTITLED THE RIGHT TO HAVE A FAMILY?.............................................................................................................................16 PRAYER………………………………………………………………………………….19

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TABLE OF ABBREVIATIONS SYMBOLS

ABBREVIATIONS

&

And

¶

Paragraph

§, Sec.

Section

HMA

Hindu Marriage Act

v.

Versus

Hon’ble

Honorable

Cons.

Constitution

HSA

Hindu succession Act

Co.

Company

Adop.

Adoption

(P), Pvt.

Private

Maint.

Maintenance

Inc.

Incorporated

vis-à-vis

When compared to

Ins.

Institution

Inv.

Invalid

Aggr.

Aggrieved

Null.

Nullification

Poss.

Possible

Reassign.

Reassignment

HAMA

Hindu Adoption and Maintenance Act

TPA

Transgender Persons (Protection of Rights) Act, 2019 3

INDEX OF AUTHORITIES

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

Textbook References: 1. Constitution of India,1949 2. Hindu Marriage Act, 1955 3. Hindu succession Act, 1956 4. Hindu Adoption and Maintenance Act, 1956

Bare Acts

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

Legal Research Tools: 1. Manupatra (https://mobile.manupatra.in ) 2. SCC online (https://www.scconline.com ) 3. Ipleadera ( https://blog.ipleaders.in ) 4. Indian Kannon ( https://indiankanoon.org )

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Website Reference : 1. https://clpr.org.in/blog/breaking-new-ground-transgender-persons-fundamental-right-tomarry/ 2. https://www.jurist.org/news/2019/04/india-court-upholds-transgender-marriage-rights/ 3. https://www.scconline.com/blog/post/2019/04/25/madras- hc-transgender-female- is-a-brideunder-hindu-marriage-act-no-impediment-in-registration-of-transgenders-marriage/ 4. https://theleaflet.in/transgenders-have-marriage-rights-under-the-indian-constitution-saysmadras-high-court/# 5. https://ohrh.law.ox.ac.uk/an-indian-high-court-recognises-transgender-individuals-right-tomarry/ 6. https://theprint.in/india/governance/transgenders-others-who-identify-as-women-will-now-bebrides-under-hindu-marriage-act/225545/ 7. https://transequality.org/issues/resources/frequently-asked-questions-about-transgenderpeople 8. https://www.hrc.org/resources/understanding-the-transgender-community 9. https://indiankanoon.org/ 10. https://blog.ipleaders.in/national-legal-services-authority-vs-union-of-india-case-study/ 11. https://translaw.clpr.org.in/case-law/k-annapoornam-vs-secretary-government-compassion/

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STATEMENT OF JURISDICTION The petitioner has approached this Hon’ble Supreme court of Hindus under the Article-133, clause(1), sub-clause-(a) of the Constitution of India,1949. 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 Article 134A (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.

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STATEMENT OF FACTS

1. Rani and Sheela are transgenders, age 35 years and work as office assistants in different corners of the city. Both live in Mehli with 20 transgenders under the refuge offered by Shikhandi since last 10 years & manage their affairs through meagre salaries and begging. Rani is unable to understand her sexuality and is constantly discriminated by her friends and family. 2. Rani and Sheela fell in love eventually and go out together discreetly without informing anybody after saving some money. They had also made plans to live together and raise a child. Sheela's family discovered where she was living through some relatives. After a scuffle between Sheela's friends and family, the family left after delivering threats towards both Rani and Sheela. Shocked by the events, both Rani and Sheela become cautious and decided to get married and try to move places as soon as possible. 3. Rani’s uncle Raju took a keen interest on Rani’s well-being. When Rani was abandoned, she stayed with Raju for a few years and continued to remain in touch after she decided to live by herself. When Rani told Raju of Sheela and their plans to get married and live together as a couple, Raju 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 Sheela’s parents visited Rani. After hearing about the scuffle, Raju went with Rani to a police station near his house to seek protection for Rani and Sheela in case they were to encounter any danger. 4. Two weeks after the events with Sheela's family, Rani and Sheela 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. Hence, Rani and Sheela were aggrieved and decided to go on appeal. Along with other transgender organizations in the country, they approached the Supreme Court of Hindya to recognize their marriage and extend marital rights.

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STATEMENT OF ISSUES

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 transgender sex tend to other attendant rights Such as adoption and maintenance?

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

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ARGUMENTS SUMMARY 1. THE DEFINITION MARRIAGE UNDER HINDU MARRIAGE ACT 1955 MEANS ONLY BETWEEN A ‘MAN’ AND A ‘BRIDE’. It is humbly submitted to this Hon’ble Court of Hindya 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 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 Vataka expressed the same while dismissing the matter.

2. THE RESPONDANTS CONTENTION OF INCLUSION OF TRANSGENDERS IN DEFINITION OF BRIDE IS ARBITRARY 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 Rani and Sheela 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.

3. THE SCOPE OF MARRIAGE BETWEEN TWO TRANSGENDERS DOES NOT EXTEND TO OTHER ATTENDANT RIGHTS SUCH AS ADOPTION It is to bring before the Hon’ble Supreme court of Hindya that The HAMA 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.

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4. WHETHER APPELLANTS ARE ENTITLED RIGHT TO HAVE A FAMILY? It is to bring before the Hon’ble Supreme court of Hindya 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.

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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. 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 ... 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

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Hindu Marriage Act 1955

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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 woman2. 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., Rani and Sheela are transwomen and neither party to the marriage falls into the category of a 'man'. 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. 3Moreover, 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 2

"Arun kumar vs The Inspector General Of 22 April, 2019

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from long usage obtained the force of law. It must be ancient, certain and reasonable”.3 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.4Hence, 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 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 Hindya that 'Transgenders' are not included under the Hindu 3

Harihar Prasad Singh And Ors vs Balmiki Prasad Singh And Ors 1975 AIR 733, 1975 SCR (2) 932

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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 Ge...