Recognizing the Right of the Third Gender to Marriage and Inheritance Under Hindu Personal law in India
| Author | D. Chowdhury - A. Tripathy |
| Position | Symbiosis Law School (Pune, India) - Symbiosis Law School (Pune, India) |
| Pages | 43-60 |
BRICS LAW JOURNAL Volume III (2016) Issue 3
RECoGnIZInG THE RIGHT oF THE THIRD GEnDER
To MaRRIaGE anD InHERITanCE unDER HInDu PERSonaL Law
In InDIa
DIPAYAN CHOWDHURY,
Symbiosis Law School (Pune, India)
ATMAJA TRIPATHY,
Symbiosis Law School (Pune, India)
DOI: 10.21684/2412-2343-2016-3-3-43-60
One of the most implicit foundations of a person’s identity today, in a cultural, national
as well as global context, is the collegial relationship which he or she shares with another
person, that relationship ultimately giving formation to a conjoint, consolidated and
co-dependent recognition of the two as one under the law, particularly with respect
to resolving socio-familial issues such as those of parentship, guardianship, adoption,
succession and inheritance, among others.
The term “relationship” mentioned above is connotative of marriage and the following
paper attempts to look at this relationship, in its connection to the various facets of
one’s personal identity as a citizen, from the perspective of a third gender Hindu Indian
national. Though the right to marry of such an individual, especially as seen against the
backdrop of the existing communal ethos in the country, may be accepted as being some
form of a heterodoxy, it still falls short of qualifying as anything that could be called, in
the least, “heretical” or even illegal.
While due to the constraints of time the authors of the present study have been compelled
to restrict the same to only a par ticular division of nationality and a further specic
sub-class thereof, the authors sincerely hope that this study will inspire fur ther such
examinations into its chosen subject within the eld domains of other religions and
nationalities.
Keywords: third gender; right to marry; Hindu personal law.
BRICS LAW JOURNAL Volume III (2016) Issue 3 44
Recommended citation: Dipayan Chowdhury & Atmaja Tripathy, Recognizing the
Right of the Third Gender to Marriage and Inheritance under Hindu Personal Law in
India, 3(3) BRICS Law Journal 43–60 (2016).
Table of Contents
1. Introduction
2. Marriage under Hindu Customary Law
2.1. Queer Marriages in the Hindu Context
3. Recognition of Third Gender in India
4. Legal Status of Marriage and Its Consequences under Hindu Law
5. The Case for an Inclusive Interpretation of Marriage
5.1. An Implication of Non-Recognition of Third Gender Rights
under Personal Laws
5.2. Recognizing Hijra Gharana’s Right of Inheritance
6. Conclusion
1. Introduction
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 codied and legally identiable relationship between two people,
has immense public signicance, 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 a marriage.1 Today, marriage is
not only a recognized civil right2 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.
1 Indra Sarma v. V.K.V. Sarma, 2013 (14) SCALE 448 (“Marriage as an institution has great legal signicance
and various obligations and duties ow out of marital relationship, as per law, in the matter of
inheritance of property, successionship, etc.”); see also Perez v. Lippold, 198 P.2d 17, 20.1 (1948); Loving
v. Virginia, 388 U.S. 1 (1967).
2 Skinner v. Oklahoma, 316 U.S. 535 (1942).
3 International Covenant on Civil and Political Rights, December 19, 1966, 999U.N.T.S. 171 (1976), Art. 23;
Universal Declaration of Human Rights, December 10, 1948, G.A. res. 217A (III), U.N. Doc A/810 at 71
(1948), Art. 16; International Covenant on Economic, Social and Cultural Rights, December 16, 1966, 993
1950, 213 U.N.T.S. 221, Art. 12.
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