Entitled to enter? - III

"She has indulged in making false statements, suppressio veri (suppression of the truth when a party is bound to disclose it) and misrepresentation” of facts, alleged senior counsel Sharad Vakil arguing the case for the Valsad Parsi Anjuman (VPA) against petitioner Goolrookh Gupta on September 8, 20ll, before a three-member bench of the Gujarat High Court.

"Has she come to the court with clean hands?” the lawyer asked Justices Jayant Patel, Akil Kureshi and R. M. Chhaya. Gupta had filed a writ petition against the VPA following a ban imposed by the Gujarat trust in 2005 on entry to the local fire temple and doongerwadi to Parsi women married to non-Parsis. A former resident of Valsad, now residing in Bombay, Gupta was concerned she would be barred from attending the funeral rites of her Valsad-based, aged parents, Adi and Dinaz Contractor as and when they expired.

Vakil contended that Gupta had changed her name to Neha prior to her February 1, l99l marriage to Mahipal Gupta under the Special Marriage Act (SMA) 1954. She had also allegedly undergone a Hindu religious marriage ceremony at the Radio Club in Bombay before her civil marriage.

Her sister, Shiraz Patodia a lawyer in the legal firm of Dua Associates, stated in a letter "her client changed her name of her free will, much before her marriage, in October l990.” Vakil contended "the change of name raises a valid presumption she has converted to the Hindu religion. This raises our suspicions of her client’s bona fides,” more so as Gupta had initially stated the change in name took place after her marriage. He also speculated that she may have converted to Hinduism to please her in-laws.

"The record of change of name has not been produced,” stated Vakil.

Justice Patel inquired if "Parsis cannot have the name Neha? A mere change of name does not automatically” signify change of religion.

Vakil noted the change in nomenclature "put the thought (of conversion) in our mind and also that of the Bombay Parsi Punchayet (BPP).” She termed Neha her "Hindu name,” he claimed. Vakil had also raised the possibility of the petitioner being part of a Hindu Undivided Family (HUF) for tax purposes.

Patel: "HUF is not a sine qua non (for determining whether a person is a Hindu or not). Every Hindu man need not have an HUF unless he creates one.”

Vakil: "Under HUF every person has to be a Hindu.”

Patel: "Yes, unless you are a Hindu you cannot be part of an HUF.”

Referring to the doubts in the respondents’ minds, Vakil stated "the moment these questions are put to the petitioner, the correspondence comes to an end… When an explanation was sought why the petitioner changed her name, there was stoic silence. She is unable to deny specific statements made by us.”

Patel: "Therefore suppressio veri.”

Vakil: "Statements made are misleading.” She does not state "the certificate of registration (of marriage) is under which act. She suppresses her marriage at Radio Club. … Is she entitled to any relief?”

Vakil alleged that when Gupta stated the BPP permits Parsi women married to non-Parsis the right to have their bodies consigned to the towers of silence, she did not disclose that their corpses could only be placed in the Modi dakhma, even though a public notice to this effect is displayed at Doongerwadi.

"Hurt religious sentiments”

At the beginning of the hearing Vakil submitted a fresh set of issues to the judges for consideration. The division bench of two judges, one of whom is the Chief Justice, had reportedly framed "issues” or points for consideration by the three-member bench. "The sequence of issues might be required to be re-examined. The order of reference (by a division bench headed by the chief justice) purports to refer the entire matter to a larger bench… It appears to me — with all due respect — to be a hybrid order of reference. Can a division bench tell a larger bench to decide this” or that. "Is it open to the larger bench to decide these (matters)? They are not bound by sequence of issues that the divisional bench has stated.”

Some of the issues that Vakil wanted raised are the maintainability of the suit, and whether the petitioner was guilty of falsification and suppressio veri. He also suggested the word Zoroastrian be added in the issues where there is reference to Parsi so that the double qualification of race (Parsi), and religion (Zoroastrianism), are both kept in mind when deciding the case.

He contended Gupta’s writ petition "is a PIL (Public Interest Litigation). He noted that 93 members of the Valsad anjuman had joined with the VPA claiming the petitioner was not entitled to reliefs as these would "hurt their religious sentiments. Other parties need to be heard.”

Vakil noted there were different types of registration under the SMA. The marriage could be solemnized either under personal or civil law. A discussion took place between Vakil and Justice Kureshi over technical aspects of registering a marriage under the SMA. Vakil contended that a couple could have a Hindu or any other marriage under personal law and have it registered under certain sections of the SMA. Kureshi observed that the registration under particular sections "does not prove or disprove conversion.” When Vakil referred to Gupta’s change of name, Kureshi mentioned this could be out of sentiment as could any religious ceremony performed before or after the registration.

Patel noted that the certificate of marriage under the SMA had been produced before the court. "Not in a proper way,” countered Vakil. "It was submitted without an affidavit, without any proper details.”

Regarding maintainability of the petition, Vakil cited various judgments and contended "fundamental rights can’t be enforced against the trustees… Religious rights are not legal rights.” He noted the VPA did not receive aid from the government and was a private body against whom a writ petition was not maintainable.

When Patel wondered aloud when contentious religious disputes such as the Babri Masjid and others would be resolved, Vakil suggested the court could reject Gupta’s petition on grounds of maintainability at this stage itself and thereby save time. But Patel indicated that the court had decided to hear the matter and inquired from Vakil how many more sessions he would require to conclude his arguments. Vakil replied he would finish by the next session or spill over marginally to the one thereafter.