Family Law

Sweety (Eunuch) v. General Public

AIR 2016 HP 148

Facts

Sweety, a transgender person belonging to the Kinner community, sought a declaration that she was the sole successor to property left by:
Rajia alias Ratni Nani; and
Desh Raj, who were also members of the Kinner community.
Sweety claimed to be their guru or patron.
She relied on the customary Guru–Chela Parampara.
According to the evidence:
a guru receives and raises a Kinner child or chela;
the guru performs parental and community responsibilities;
the chela later succeeds within that relationship;
the relationship is reflected in community and official records.
No member of the public appeared to contest her claim.
Sweety produced evidence including documents identifying her as the guru.
The Trial Court dismissed the suit by applying the Hindu Succession Act.
The First Appellate Court affirmed the dismissal and assumed that the parties were Hindus.
Sweety appealed to the Himachal Pradesh High Court.

Whether the courts could apply Hindu succession law merely by assuming the religion of the deceased from their names.
Whether the proved Guru–Chela custom governed succession where no religion had been pleaded or established.

Personal law cannot be applied unless the factual basis for its application, including religion, is established.
A person’s religion cannot be presumed merely from:
a name;
appearance;
social stereotype.
Where a litigant pleads a specific community custom and supports it with evidence, the court must examine that custom.
A valid custom must be:
certain;
continuously followed;
reasonable;
not contrary to public policy.
Transgender persons possess the same legal dignity and right to recognition as other persons.
Community-specific family structures may receive legal recognition where they are proved and lawful.

Sweety had never pleaded that she or the deceased were governed by Hindu law.
The lower courts nevertheless assumed Hindu identity solely from their names.
The High Court criticised this approach because:
names are shared across religions;
courts cannot assign religion through personal impression;
application of a personal law requires evidence.
Sweety’s actual case was based upon Kinner custom.
Her evidence regarding the Guru–Chela relationship remained unchallenged because no defendant appeared.
The records showed that:
she was the guru;
the deceased were chelas;
the relationship was recognised within the community.
The lower courts had even accepted the existence of the relationship but refused to give it its succession consequence.
That was legally inconsistent.
The High Court relied upon the earlier recognition of the same custom in Illyas v. Badshah alias Kamla.
The custom was particularly important because the Kinner community may form family structures through bonds of care, initiation and community membership rather than biological descent.
Applying an assumed religious law while ignoring the proved social family would deny the deceased’s actual community identity.
The Guru–Chela custom therefore provided the appropriate rule of succession in this case.

The appeal was allowed.
The judgments of the two lower courts were set aside.
Sweety was recognised as the person entitled to succeed under the Guru–Chela Parampara.
The High Court held that Hindu succession law could not be imposed without proof that the parties were Hindu.
Use this case for: customary succession among transgender persons and the prohibition on presuming religion merely from a person’s name.