New Delhi: The Supreme Court on Thursday asked the Parsi Anjuman of Valsad, Gujarat, not to bar a woman married to a Hindu from attending the funeral of her father as and when he dies, since she has retained her identity as a Parsi by marrying under the Special Marriage Act.
Taking up her petition asserting her fundamental rights before a 5-judge Constitution Bench, Chief Justice Dipak Misra observed that a woman does not mortgage herself to a man by marrying him as she retains her identity, including religious identity, even after exercising her right to marry outside her community under the Act.
He asked senior advocate Gopal Subramanium to speak to his client to permit the woman in the Fire Temple for prayers and in the Tower of Silence where the Parsis are laid to rest after death, in case her father dies during the pendency of the hearing. The case was adjourned to next Thursday for the Anjuman’s response.
The Bench said the crucial question before it is to decide whether a religious principle has dominance over the constitutional identity of a Parsi woman.
Arguing on her behalf, senior advocate Indira Jaising said every custom, usage, customary and statutory law has to stand the test of the Fundamental Rights principle. Article 372 (continuance of existing laws) of the Constitution is subject to Article 13, which mandates that laws should not violate the fundamental rights of an individual.
The genesis of the dispute lies in the fact that the Parsi or Zoroastrian religion does not allow entry of non-Parsis in the Fire Temple or Tower of Silence because of its orthodox priests. This principle was adopted by the Anjuman to bar entry of the woman.
Goolrokh Adi Contractor has come to the Apex Court to challenge her ex-communication from the Parsi religious activities because she married Mahipal Gupta, a Hindu. She has challenged the Gujarat High Court’s March 23, 2012, judgment that she has ceased to be a Parsi after such a marriage as a woman’s identity is akin to her husband.
The Gujarat High Court had upheld the Valsad Parsi Anjuman Trust’s decision barring her entry with a verdict that a woman is “deemed and presumed” to acquire the religious status of her husband on marriage on a principle that “a woman’s decision as to which religion she follows is dependent upon the religion of her father and after her marriage, it is dependent on that of her husband.”
The Anjuman has justified the High Court ruling on the ground that it decided the case only after going through the affidavits of at least seven Parsi priests saying that the religious tenets hold that she ceases to be a Zoroastrian upon her marriage to a Hindu and cannot be allowed to offer prayers in a Zoroastrian place of worship.
A decision in favour of Goolrokh would uphold the fundamental right to religion, dignity and life and create a paradigm shift for women within the minority community. She knocked at the Apex Court’s door, encouraged by the court itself taking up the instant Triple Talaq case and ruling in favour of Muslim women.
The Constitution Bench prima facie disagreed with the widespread notion in common law, as adopted in the High Court ruling, that a woman’s religious identity merges with that of her husband after marriage.
Is it not gender discrimination, the Chief Justice asked, wondering ““How can you (Parsi elders) distinguish between a man and woman singularly by a biological phenomenon, when no law debars a woman from retaining her religious identity.” “If a woman’s identity is merged, then the Special Marriage Act is not required. Is it not so,” he asked the opposite counsel.
On the first day of hearing, the Chief Justice said: “Special Marriage Act confers on 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.”
Nobody can presume that a woman has changed her faith or religion just because she chose to change her name after marrying outside her community, he added.
Presiding over a 3-judge Bench on October 9, the Chief Justice decided to send the case to the Constitutional Bench since it involved constitutional issues. During the hearing, the Chief Justice observed that the woman has prayed for entry into the Tower of Silence and 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 woman’s counsel Indira Jaising argued that denial of respect and the right to her 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.
She pointed out that Goolrokh continues all Parsi religious practices at home even after her marriage to a Hindu man and as such she is a practising Parsi for all purposes.