Caste vs religion

A 100 years ago Bombay High Court Justices Dinshaw Dhunjibhoy Davar and Frank C. O. Beaman delivered their historic judgment in the Parsi Punchayet case (Petit vs Jeejeebhoy).

Their definition of who constitutes a Parsi has vexed the community since 1908. Parsis were stated to be children of Parsi parents, children of a Parsi father, and the offspring of Iranians who settled in India subsequent to the initial migration.

The children of Parsi women married to non-Parsis were not included in the definition as there was no record before the court of a Parsi woman marrying a non-Parsi and raising her offspring as Zoroastrian.

Cases of Parsi men begetting children from non-Parsis and initiating them into the Zoroastrian faith existed.

As Davar observed, "While in these remote villages — far from their homes and their families, some of these Parsis took to having unlawful intercourse with women whom they took into their quarters as their mistresses. The women whom they could persuade to live with them were necessarily from the poorer and the lower classes. In the districts of Gujarat, a low caste of Hindus, known as Dubras, abound, and most of the Parsis settled in remote villages took to themselves mistresses from this caste. It was not unusual in those days for Parsis, in some of the cities of Gujarat, to introduce Dubra women in their houses ostensibly as servants and subsequently treating them as their mistresses. Alliances such as these sometimes resulted in the birth of children. The father naturally did not wish to desert them, but usually got some friendly priest to perform the navjote ceremony on them during their young age and thus smuggled them into the community.”

Both Davar and Beaman conceded "that the Zoroastrian religion not only permits but enjoins the conversion of a person born in another religion and of non-Zoroastrian parents.”

But the question before the court was not "whether the Zoroastrian religion permits conversion, but whether, when these Trusts were founded, the founders contemplated and intended that converts should be admitted to participate in them.”

Beaman in concurring with his brother judge’s conclusions noted, "It is simply puerile to pretend, for instance, that the admission of such a refined and cultured lady as Mrs Tata would do harm to a religion which opens its doors to all sorts and conditions of bastard children. It is still stupider to resist her claims on the ground that she was not duly admitted. She was publicly admitted by a person corresponding in our religion, let us say, to the Archbishop of York: everyone knew of it: leading citizens, English as well as Parsis, were invited to be present at the ceremony.

"The priest who ought to know says that she was fully and regularly admitted. I really had no patience with the quibblings of the learned men who spoke for the Defendants, and, while evading the plain direct points, spent hours of our time in trying to reconcile their own absurdly irreconcilable inconsistencies. The real, the plain point was simply this, that notwithstanding anything in their sacred writings, notwithstanding their own published utterances to the contrary, notwithstanding the Ravayats, notwithstanding everything, they took their stand not on religion but on caste, and when it came to a practical test, denied that anyone could become a member of the Parsi community except by birth. That in a nutshell was the whole case for the Defendants, and exasperatingly though it was presented to us, curiously enough, in the end, I think, that it is a good case and must prevail.”

In the second landmark case Saklat vs Bella (1915) the Privy Council in England ruled that Bella, the alleged child of a Goan Christian and a Parsi mother, could enter a fire temple if the trustees permitted her to do so: "Bella has no right of entering into the temple and may therefore be excluded or extruded from the temple by the trustees. They can treat her as a trespasser. But it does not follow that they are bound to so treat her.”

The Privy Council was informed that the Rangoon fire temple was constructed "for the use of the Parsi inhabitants of Rangoon free and unrestricted but subject notwithstanding to the tenets of the pure Zoroastrian religion.”

But their lordship noted, "the mere claim of A that B shall not share in such a benefit because B is not within the terms of the foundation is not one that courts would encourage.”

In Independent India why should women face discrimination that too in an enlightened community and a religion that does not consider women inferior to men? Parsiana therefore sought to gauge the views of the community’s leading jurists on this sensitive issue. If women married to non-Parsis went to court could they succeed in having their children admitted into the fire temples?

Among the observations and questions Parsiana raised were the following:

Over the past 30 to 40 years women married to non-Parsis have been performing the navjote ceremonies of their children.

Davar and Beaman talked about the settlor’s wishes being paramount. But schools founded only for Parsis became cosmopolitan. Surely the settlors of Parsi schools must have envisioned only Parsis studying in the institutions founded by them? The Delhi Parsi Anjuman dadgah and the Jamshedpur Parsi Anjuman adarian admit children of Parsi women married to non-Parsis. This presumably was done on the basis of the Saklat vs Bella judgment permitting the trustees to do so.

Parsiana is extremely grateful to jurists Fali Nariman and Berjis Desai for sparing their professional time and expertise without charge to answer our queries (see "The right freely to profess...” pg 52 and "A cardinal human right” pg 60). Noted jurist Soli Sorabjee has also promised to send his opinion but due to traveling and subsequent ill-health his article has been delayed.

Parsiana sent out 19 letters in all. Some of these letters may not have reached the concerned persons due to change of address. Parsiana did not follow up with any reminders.

Retired Supreme Court Chief Justice Sam Bharucha regretted stating, "It would, I think, not be proper for me to write the article that you suggest in your letter.”

Former Supreme Court Justice Sam Variava noted our letter "had gone to my old address and there appears to have been a delay in forwarding it to me. I am honored by your seeking my opinion. I also appreciate the fact that the question raised by you, from the point of view of the Parsi community, is important. However, I do not consider myself to have any deep knowledge on this topic to offer my views. Even otherwise I have to leave India for work and, therefore, do not have time to prepare an article within the time mentioned by you.”

Noted counsel Nadir Modi declined stating, "More than 50 years’ experience in the line has taught me that legal victories are very often Pyrrhic victories: Both sides lose.

"The fruits of legal victories do not remain sweet for a long time.

"As the Duke of Wellington said after Waterloo: ‘Nothing is more distressing than a battle won — with the exception of a battle lost!’

"I have spoken to several leading persons in our community on the subject you wrote about.

"In my view the problem needs to be seen not so much as a legal problem but as a sociocultural-cum-religious problem. As I see it the problem would be best solved not by a George Bush approach but a Mother Teresa approach…

"Instead of spending the time, money and energy which would be required for a legal contest, which in all likelihood would once again draw controversial battle lines, between the community vertically, if all the persons concerned to win the legal battle were to concentrate their time, money and energies on getting into grass roots helpful work for the community (à la Mother Teresa) hopefully the hearts of all concerned would be touched and more fruitful, permanent results might be achieved.”

Legal tax expert and former Bombay Parsi Punchayet (BPP) trustee Homi Ranina noted, "In view of the possibility that this issue may become the subject matter of litigation sooner than later, I would not like to express my views by writing an article on this subject.”

Noted solicitor and former BPP chairman Eruch B. Desai wrote, "As issues on which I am asked to elaborate are many, to deal with the same would involve labor akin to that for the preparation of a suit for the purpose. Such a task would take considerable time for research extending over many days which I cannot afford to spare. If my article has to appear in the Press then I always try to see that no statement therein can be faulted. In fact I have also in my own way dealt with this issue in my last article appearing in Parsiana under the heading "Conversion or Acceptance” and I would not like to cover the same subject in such an elaborate way, and which may be inconsistent with my views in that article.

"I am therefore afraid that you will have to excuse me for this assignment. I suggest that this job may be entrusted to some advocate practicing in courts and conversant with the affairs of the community. He might be able to do a proper job.”

Noted solicitor and BPP trustee Burjor Antia replied, "As you yourself have stated in your letter that the matter may go to a court of law, I would like to avoid giving any opinion in the matter, as I do not know which party will brief me, when the matter goes to the court.”

Rustom Gae, former law secretary to the government of India sent a short piece stating, "In my opinion children of Parsi women married to non-Parsis should be considered as Parsis on performance of their navjote ceremony, entitled to all rights available to Parsis. This is all the more so after the commencement of the Constitution providing for equality of sex.

"It is stated that some Parsi women married to non-Parsis have initiated their children into the Zoroastrian faith. This course is appropriate and should be adopted.

"If children of Parsi women married to non-Parsis are not allowed to enter a fire temple it would be appropriate on the part of their mothers or other persons concerned to move the court in the matter and the court will grant the appropriate relief to such person. Ban on such children entering the fire temple is not justifiable in law and should be removed.

"The position emerging as above duly lays down the law on the subject and should be followed accordingly. Its veracity should not be doubted.”