A woman does not mortgage herself to a man by marrying him and she retains her identity, including her religious identity, even after she exercises her right to marry outside her community under the Special Marriage Act, Chief Justice of India Dipak Misra orally observed while heading a five-judge Constitution Bench on Thursday.
The Special Marriage Act of 1954 is seen as a statutory alternative for couples who choose to retain their identity in an inter-religious marriage.
“Special Marriage Act confers in her the right of choice. Her choice is sacred. I ask myself a question: Who can take away the religious identity of a woman? The answer is only a woman can choose to curtail her own identity,” Chief Justice Misra said on the first day of hearing of a petition filed by a Parsi, who was barred by her community from offering prayers to her dead in the Tower of Silence for the sole reason that she married a Hindu under the Special Marriage Act.
Nobody could presume that a woman has changed her faith or religion just because she chose to change her name after marrying outside her community, the Chief Justice observed.
The Bench, also comprising Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, is deciding the question whether a Parsi woman can keep her religious identity intact after choosing to marry someone from another faith under the 1954 Act.
The very fact that petitioner Goolrookh M. Gupta, married under the Special Marriage Act, did not choose to convert showed that she had intended to retain her religious identity as a Zorastrian. A decision in favour of the woman would uphold the fundamental right to religion, dignity and life and create a paradigm shift for women within the minority community.
(The court recently ruled in favour of Muslim women by striking down instant triple talaq as unconstitutional, and has now paved the way for a proposed legislation.)
Disagrees with widespread notion
The Bench, prima facie, disagreed with the widespread notion in common law that a woman’s religious identity merges with that of her husband after marriage.
Indicating that this amounted to discrimination on the ground of gender, Chief Justice Misra asked, “How can you [Parsi elders] distinguish between a man and woman singularly by a biological phenomenon… If a woman says she has not changed her religion, by what philosophy do you say that she cannot go to the Tower of Silence? No law debars a woman from retaining her religious identity.”
Justice Sikri observed, “If a woman’s identity is merged, then Special Marriage Act is not required, is it not.”
Chief Justice Misra said, “The Tower of Silence is not a mutt or a citadel of a cult. It is a place to offer prayers to the dead. Can such a right of a woman be guillotined? It is part of her constitutional identity.”
The court said it had to decide whether a religious principle had dominance over the constitutional identity of a Parsi woman.
Arguing for the petitioner, senior advocate Indira Jaising submitted that every custom, usage, customary and statutory laws had to stand the test of the Fundamental Rights principle. Article 372 (continuance of existing laws) of the Constitution was subject to Article 13, which mandated that laws should not violate the fundamental rights of an individual.
Petition against HC judgement
The petition is against the Gujarat High Court’s March 23, 2012 judgment, which held that Ms. Goolrokh Adi Contractor ceased to be a Parsi as she had married Mahipal Gupta, a Hindu, under the provisions of the Special Marriage Act.
The Valsad Parsi Anjuman Trust, which opposed Ms. Gupta’s plea, said the High Court decided the case after going through the affidavits of at least seven Parsi priests that said the religious tenets held that she ceased to be a Zorastrian upon her marriage to a Hindu and cannot be allowed to offer prayers in a Zorastrian place of worship.
Ms. Jaising argued that the fundamental right enshrined in Article 14 of the Constitution guaranteed equality before the law and the equal protection of the laws. It prohibited discrimination on grounds of religion, race, caste, sex or place of birth. “Anything arbitrary violates the rule of law,” she submitted.
Denying a woman respect and the right to observe her religion merely because she married outside her faith was violative of her fundamental right to religion enshrined under Article 25 of the Constitution.
Ms. Jaising said there was a difference of opinion on the issue within the Parsi community itself. While some pockets allowed women who chose inter-religious wedlock into the Tower of Silence, others did not.
Ms. Jaising argued that the ‘doctrine of coverture’, which held that a woman lost her identity and legal right with marriage, was violative of her fundamental rights. ”The doctrine is not recognised by the Constitution.”
The court asked the Valsad Parsi Trust to inform by December 14 whether it would allow Ms. Goolrokh to attend the last rites of her parents.