In a case pertaining to the religion of a Parsi woman after her marriage, the Supreme Court disagreed with the Gujarat High Court ruling that a woman’s religion merges with that of her husband upon marriage.
A Parsi Zoroastrian woman, Goolrakh Gupta, filed a Special Leave Petition (SLP) in 2012 in the Supreme Court against the HC order which said that she gets automatically converted to Hinduism upon marrying a Hindu man.
According to Gupta, she was denied entry to the Tower of Silence (a circular, raised structure built by Zoroastrians for excarnation) for her father’s funeral. She argued that there is no law in India which changes a wife’s religion to her husband’s after marriage.
Gujarat high court order
The HC said that by virtue of contracting a civil marriage with a non-Parsi man, a Parsi woman gets automatically converted to Hinduism after marrying a man of the said faith under the Special Marriage Act (SMA).
Many in the Parsi community bar women from entering religious places and prohibit them from performing certain religious rituals if they marry outside the faith. The Valsad Parsi Anjuman Trust restrained Gupta from participating in the funerary rites of her father.
She filed a writ in the Gujarat HC against the Trust’s decision, however, the three-judge bench by a majority of 2:1 turned down her writ petition. The court held there is “deemed conversion” in an inter-religious marriage as no provision in SMA protects the religion of the woman after marriage.
The HC observed: “In all religion, be it Christian, be it Parsi, be it Jews, the religious identity of a woman unless specifically law is made by the Parliament or the legislature, as the case may be, as per the religions, shall merge into as that of the husband…It is hardly required to be stated that such principle is generally accepted throughout the world and therefore, until the marriage, after the name of the woman, the name of the father is being mentioned and after the marriage, name of husband is being mentioned for the purpose of further describing her identity…”
For five years now, Gupta, with her sister Shiraz Patodia, who has also married outside her religion, is fighting to change the gender bias in Parsi tradition and interpretation of SMA.
Patodia is a lawyer and is appearing for her sister, along with senior advocate Indira Jaising.
Supreme court order
On Thursday, December 7, Supreme Court bench led by Chief Justice Dipak Misra observed, “The purpose of the Act of 1954 is for the parties to the marriage to retain their individual religious identity post marriage. If either party had to convert to the religion of the other, then they would have solemnised the marriage under the Hindu Marriage Act of 1956. Unless the wife expressly denounces her religion and converts to the religion of her husband, logically there is a presumption that she is continuing to practice her own religion. Prima facie there is no case for accepting the application of the doctrine of merger.”
The apex court further granted time to senior counsel Gopal Subramanium, representing the Trust, to seek instructions on the issue of permitting Parsi women married to non-Parsis to take part in Zoroastrian rites. The top court scheduled the matter for December 14 for further hearing.
The top court made its observations after hearing arguments made by Jaising. She said, “The restriction placed on the woman was not one imposed by the religion; it was at the behest of the trustees of the denomination. It amounts to excommunication. By stopping the daughter from participating in the funerary rites of her father, her filial right has been violated. That tantamounts to a contravention of the right to association guaranteed under Article 19.”
“The treatment meted out to the woman is sex-based. A Parsi man getting married to a non-Parsi woman would not be so discriminated. There has also been a violation of the right imbibed in Article 15,” she added.
The Special Marriage Act of 1954 was enacted with the object of enabling persons of different religious identities to enter into a valid marriage without giving up their respective religions. Two persons belonging to the same faith could also marry under the Act.
The Supreme Court upheld the secular values of our Constitution and rightly observed that all individuals are free to practise a religion of their choice.