Entitled to enter? - VI

"The honorable court has discretionary powers” to entertain a writ petition against a non-state player, said the amicus curiae (AC) Vishwas Shah addressing a three-member bench comprising Justices Jayant Patel, Akil Kureshi and R. M. Chhaya of the Gujarat High Court on December 1, 2011 in Ahmedabad. The court was hearing an appeal filed by former Valsad resident Goolrookh Gupta challenging a ban by the Valsad Parsi Anju­man (VPA) on entry to the fire temple and Doongerwadi to Parsi women married to non-Parsis. Writ petitions, as a rule, are taken recourse to against the state. Shah stated there were two judgments of the Gujarat High Court, one stating a writ petition is maintainable against a non-state party and the other holding it non-maintainable.

He noted the trust deed of the VPA/agiary was "not placed before this court” and that there was "no specific prayer challenging the (ban) resolution.” He added that as this was "a religious issue,” the courts should "not interfere.” Shah advised the justices that the matter could "without the consent of the two parties be referred to mediation.” Alternatively "a civil suit is the remedy.”

"The remedy is a cloud,” quipped Patel. This was the court’s eighth and final major hearing in the contentious case. Earlier when Gupta’s lawyer Percy Kavina had pointed out that Shah had first sought to represent the 93 Valsad residents opposed to Gupta’s entry to the fire temple, Patel lightheartedly told the AC "we welcome light (on the matter) not clouds.” An AC is a professional person that is not party to a given litigation but is invited by the court to advise the judges on matters of law in the case.

Shah pointed out "the marriage has not been blessed by the high priests.”

Patel: "No tenet prohibiting (marriage outside the faith) has been produced” before the Court. The tenets of the "original faith are not available. Does any religious tenet prohibit marriage of Parsis to non-Parsis?”

Shah replied that the high priests have "interpreted” the tenets of the religion as having said so. There were many versions of the Vendidad for example on the worldwide web. "There is no unanimous understanding of the Vendidad. Even the high priests differ. But they are the best persons available (to interpret such matters) The translations vary… they differ from scholar to scholar. There are no scholars better than our high priests… Whatever the high priests say is final.”

Patel: "Do they (the translations) expressively prohibit,” marriage outside the faith?

Shah: "The translations vary… they differ from scholar to scholar… (Interfaith marriages) are not endorsed by Ahura Mazda.”

Shah, however, added that as the high priests were "not before the High Court,” the justices should not "rely on anyone not party to the court” proceedings as there was "no control” on them and therefore it was unwise "to rely on their evidence.” He suggested the matter be referred to a forum.

Patel: "Again a cloud.”

"Loses status”

Resuming his arguments from the week before, advocate Aspi Kapadia who represents 93 Valsad residents opposing Gupta’s entry to the agiary as it would "hurt their religious sentiments,” claimed a Parsi woman who marries a non-Parsi "loses her community religious status. It may continue at the personal level but the community will not accept” her. "She is not an osta or a behdin... Religion is a personal matter. The state can legislate in matters of public order, morality and health,” not religion. The rights of an individual are subject to community rights.

In the Gathas Zoroaster tells his daughter "to marry a follower of Ahura Mazda. In the Vendidad intermarriage is considered harmful to the religion. A woman from an athornan (priestly) family loses her athornan status "if she marries a behdin (lay person). The name of a girl is attached to her father and then her husband. A priest cannot recite ‘behdin Mahipal’ (Goolrookh’s husband’s name). It changes the structure. (The custom) has a religious basis.” Even in Hindu temples "in certain areas such as the sanctum sanctorum non-Hindus are not permitted.” In fire temples "the whole thing is consecrated… there are scientific reasons for not admitting non-Parsis.” He noted how after the sachkaar ceremony for a corpse, no non-Parsi is permitted to view the face of the deceased whose corpse is shrouded in a white sheet. "Bombay has five dakhmas. Valsad has only one. The Mody dakhma is not consecrated. For 150 years it was not in use. She is staying in Bombay. She can go to the Mody dakhma” on her death. After her marriage 20 years have elapsed before filing the case. "She never came to the Valsad agiary” during that period, he alleged.

Would a public trust for the benefit of Parsi women include women who have married out? he questioned. The settlors "never imagined, never contemplated a woman married out or a convert would enter” the fire temple. He alleged Goolrookh’s parents started a social club in Valsad where "Parsi ladies married to non-Parsis would not be eligible to join.”

He argued a writ petition "cannot be enforced against a trust. If there is discrimination between males and females, it is a matter of religion.” He noted that a Muslim male can utter "talaq” to divorce his wife but not vice versa.

Patel inquired if inheritance was denied to Parsis married to non-Parsis.

Kapadia: "Right of inheritance is not barred.” Kavina opined that if a Parsi married under the Special Marriage Act 1954 he or she would receive his/her inheritance as per the special provisions for Parsis under the Indian Succession Act. But the children of such a union would be subject to the general provisions of the Indian Succession Act, not the special provisions for Parsis. "If the petitioner’s father died she will not be disinherited. She would not incur discrimination of any nature.”

Kapadia: In these cases "the law applies. Succession has nothing to do with religion.”

"Racism is a dirty word”

In his summing up of the final arguments, Kavina referred to the "custom” cited by the opposition of the Parsis not converting anyone to Zoroastrianism after coming to India. "There cannot be a custom of not doing something,” said the lawyer quoting Justice Frank Beaman who along with Justice Dinshaw Davar delivered the historic judgment on conversion in 1908. "You can never have a custom that is negative.” He noted the high priests had not cited the source for their pronouncements. The "affidavits are silent on this.” To Goolrookh’s opponents "parentage is paramount. Race is considered important. Today racism is a dirty word.”

He questioned the VPA’s contention that "exclusion of my client is a basic part of the religion.” He cited the Privy Council judgment of 1925 in Saklat vs Bella that noted that though Bella was a non-Parsi and "has no right of entering into the (Rangoon fire) temple,” the trustees were not bound to treat her as a trespasser. "When the subject matter of such a trust or charity is the rendering of some convenience or service of such a nature that it will not hurt the lawful recipients if others share with them, their lordships are aware of no case in which it has been held that the trustees are bound to exclude persons who have no legal title to share,” the justices observed.

"It is not part of the Parsi religion to exclude aliens,” continued Kavina. "It is not a fundamental part… no text prohibiting marriage out of the community” has been shown to the court. Those opposing her entry into the fire temple based their objections "on whims and fancies… not rational, religious precepts.”

Noting that different rules applied for men and women, Kavina said, "I’m asking for gender equality… that (emanates) from the right to life in Article 21 of the (Indian) Constitution.”

Patel: "Gender equality has certain restrictions.” He cited how baraats (marriage processions) originate from the groom’s side.

Kavina: "In certain cases they are brought from the bride’s side.” He questioned the opposing lawyer’s contention that "women are only known by their father’s and husband’s names. He noted in the Tandorosti prayers the father’s name is not taken. While Parsis took their father’s name as a second name, in Bengal the second name was not the father’s. Many women after marriage opt to retain their maiden surnames. "Marriage is not such an institution that it subsumes women...

"Is this religion so retrograde to treat women so poorly?” he asked rhetorically. "People are not willing to give up their birth religion. No disqualification should come to one” on account of marriage.

He noted his client "is alone” before the court facing "arduous litigation” because other women were fearful of coming forth. "There are hundreds of women like her. We cannot shut our eyes to the march of progress” on account of legal technicalities. He was referring to the writ being evoked against a private party instead of the state. "Because no (court) has gone before is not a good reason not to do so this time.” He thanked the three judges for giving the case "a most patient hearing.”

Patel in turn requested the parties to also be patient and give the judges time to prepare their judgments.

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