Editorial Viewpoint
Conversion by marriage
The judges appeared almost apologetic. “We have made some room for litigation,” stated Justice Jayant Patel who headed the three-member bench of the Gujarat High Court disposing of a writ petition filed by former Valsad resident Goolrookh Gupta challenging the Valsad Parsi Anjuman’s (VPA) resolution barring entry to their fire temple situated in Mota Parsiwad and Doogerwadi to Parsi women married to non-Parsis.
“All reforms start with humble beginnings,” said Justice Akil Kureshi who differed from his brother judges, Patel and R. M. Chhaya who claimed the Special Marriage Act (SMA) 1954 assumed a woman had taken on her husband’s religion.
According to Patel and Chhaya, “In all religions, 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… shall merge into as that of the husband… 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 marriage, name of husband is being mentioned for the purpose of further describing her identity.”
“After undertaking fact finding inquiry” if it is established that following the marriage the woman continues to follow her own religion, it may be assumed to be so. But in the absence of such an inquiry “it may not be possible for this Court to accept the petitioner (has) continued to be Parsi Zoroastrian after marriage with a non-Parsi man.” The two judges also referred to the allegations made by the VPA that Gupta had had a Hindu wedding ceremony prior to the registration under the SPA and if that were true she would have assumed to have converted to Hinduism as the Hindu marriage ceremony is a sacrament. “The petitioner got married to Mahipal Gupta at Radio Club according to Hindu rites and the marriage ceremony… No affidavit has been filed denying the performance of marriage at Radio Club as per Hindu rites by the petitioner.” She had also changed her name from Goolrookh to Neha prior to her marriage.
“It is by now well settled that Hindu marriage is not a mere contract… The principles of marriage as a sacrament is maintained for solemnization of the marriage and the requirement is that both the parties should be Hindu.”
The judges have gone on to observe that under the Parsi Marriage and Divorce Act 1936 both husband and wife are defined as Parsi Zoroastrian. “Such marriage is solemnized according to the Parsi form and the ceremony with ‘ashirvad’ by priest in presence of two Parsi witnesses other than that of the priest.” The ashirvad is also considered a “solemnization,” note the two justices, thus as in the Hindu marriage ceremony it is also a “sacrament.”
It would then follow that if a Parsi male married a non-Parsi under the SPA and the couple had the ashirvad ceremony performed the wife would become a Zoroastrian. The judges however added a caveat here. Noting that “article 26 of the constitution guarantees the right of every religious denomination or any section thereof, to manage its own affairs in matter of religion,” the VPA would be entitled to bar entry to the fire temple and Doongerwadi. This is because the VPA contends that whether offering of prayers by non-Parsi Zoroastrians at an agiary or tower of silence or using the dakhmas for funeral purpose should be permitted or not “are essential parts of Parsi Zoroastrian religion and therefore respondents are within their rights to prohibit entry to any non-Parsi Zoroastrian.”
Thus according to the two justices when a Parsi woman marries a non-Parsi she loses her religious identity and the right to enter a fire temple or the towers of silence. On the other hand when a non-Parsi woman marries a Parsi she loses her original religion and at the same time is not accepted as a member of the Parsi Zoroastrian community. She therefore becomes a religious non-entity. Assuming that a Parsi woman after marriage to a Hindu gets subsequently divorced and remarries a Christian, she would have started out as a Zoroastrian become a Hindu by marriage, have no religion after she is divorced (unless she is permitted to undergo another navjote ceremony) and then ends up a Christian. If she were then to be a widow, which religion is she supposed to espouse?
Justice Kureshi differed with his learned brothers observing “section 4 of the Act of 1954 makes a special provision also enabling such couples to solemnize the marriage while still retaining their respective religious identities and sentiments… This is in tune with the constitutional ethos which envisages a secular State with (a) liberal society.”
Noting the quandary raised by his fellow judges, Kureshi observed “there are many religions which do not recognize conversion. If the husband belongs to such a religion, say for example Parsi which religion does not accept conversion and his wife were to be a non-Parsi be (she) Hindu, Muhammadan or Christian or anything, in such a case, what would be her status if we accept the principle of automatic deemed conversion into the religion of her husband upon her marriage to a Parsi gentleman under the Act of 1954?”
Referring to the issue of constitutional rights being violated, Kureshi quoted from the 2002 Supreme Court case of N. Adithayan vs Travancore Devaswom Board and others: “Any custom or usage irrespective of even any proof of their existence in pre constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.”
This raises the question whether a custom breaches the fundamental right to profess a religion: “The question would also arise whether any practice which prevents a person from performing the last rites of her parents or prevents even her presence when such rites are being performed, would be opposed to basic human rights. Question would also arise whether any custom or usage which prevents a person from being cremated upon death as per the religious rites would not be opposed to fundamental right to profess any religion.
“I leave such questions to be decided in appropriate case if instituted before appropriate forum.”
Gupta intends to pursue the case before the next “appropriate forum,” the Supreme Court. Her long journey for justice has lengthened. She is fortunate that leading lawyers in both the High Court and Supreme Court have and are willing to render her assistance pro bono. If the VPA resolution barring entry signifies the worst aspects of the community, the legal fraternity exemplifies the best, both within and without the community.
“All reforms start with humble beginnings,” said Justice Akil Kureshi who differed from his brother judges, Patel and R. M. Chhaya who claimed the Special Marriage Act (SMA) 1954 assumed a woman had taken on her husband’s religion.
According to Patel and Chhaya, “In all religions, 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… shall merge into as that of the husband… 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 marriage, name of husband is being mentioned for the purpose of further describing her identity.”
“After undertaking fact finding inquiry” if it is established that following the marriage the woman continues to follow her own religion, it may be assumed to be so. But in the absence of such an inquiry “it may not be possible for this Court to accept the petitioner (has) continued to be Parsi Zoroastrian after marriage with a non-Parsi man.” The two judges also referred to the allegations made by the VPA that Gupta had had a Hindu wedding ceremony prior to the registration under the SPA and if that were true she would have assumed to have converted to Hinduism as the Hindu marriage ceremony is a sacrament. “The petitioner got married to Mahipal Gupta at Radio Club according to Hindu rites and the marriage ceremony… No affidavit has been filed denying the performance of marriage at Radio Club as per Hindu rites by the petitioner.” She had also changed her name from Goolrookh to Neha prior to her marriage.
“It is by now well settled that Hindu marriage is not a mere contract… The principles of marriage as a sacrament is maintained for solemnization of the marriage and the requirement is that both the parties should be Hindu.”
The judges have gone on to observe that under the Parsi Marriage and Divorce Act 1936 both husband and wife are defined as Parsi Zoroastrian. “Such marriage is solemnized according to the Parsi form and the ceremony with ‘ashirvad’ by priest in presence of two Parsi witnesses other than that of the priest.” The ashirvad is also considered a “solemnization,” note the two justices, thus as in the Hindu marriage ceremony it is also a “sacrament.”
It would then follow that if a Parsi male married a non-Parsi under the SPA and the couple had the ashirvad ceremony performed the wife would become a Zoroastrian. The judges however added a caveat here. Noting that “article 26 of the constitution guarantees the right of every religious denomination or any section thereof, to manage its own affairs in matter of religion,” the VPA would be entitled to bar entry to the fire temple and Doongerwadi. This is because the VPA contends that whether offering of prayers by non-Parsi Zoroastrians at an agiary or tower of silence or using the dakhmas for funeral purpose should be permitted or not “are essential parts of Parsi Zoroastrian religion and therefore respondents are within their rights to prohibit entry to any non-Parsi Zoroastrian.”
Thus according to the two justices when a Parsi woman marries a non-Parsi she loses her religious identity and the right to enter a fire temple or the towers of silence. On the other hand when a non-Parsi woman marries a Parsi she loses her original religion and at the same time is not accepted as a member of the Parsi Zoroastrian community. She therefore becomes a religious non-entity. Assuming that a Parsi woman after marriage to a Hindu gets subsequently divorced and remarries a Christian, she would have started out as a Zoroastrian become a Hindu by marriage, have no religion after she is divorced (unless she is permitted to undergo another navjote ceremony) and then ends up a Christian. If she were then to be a widow, which religion is she supposed to espouse?
Justice Kureshi differed with his learned brothers observing “section 4 of the Act of 1954 makes a special provision also enabling such couples to solemnize the marriage while still retaining their respective religious identities and sentiments… This is in tune with the constitutional ethos which envisages a secular State with (a) liberal society.”
Noting the quandary raised by his fellow judges, Kureshi observed “there are many religions which do not recognize conversion. If the husband belongs to such a religion, say for example Parsi which religion does not accept conversion and his wife were to be a non-Parsi be (she) Hindu, Muhammadan or Christian or anything, in such a case, what would be her status if we accept the principle of automatic deemed conversion into the religion of her husband upon her marriage to a Parsi gentleman under the Act of 1954?”
Referring to the issue of constitutional rights being violated, Kureshi quoted from the 2002 Supreme Court case of N. Adithayan vs Travancore Devaswom Board and others: “Any custom or usage irrespective of even any proof of their existence in pre constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.”
This raises the question whether a custom breaches the fundamental right to profess a religion: “The question would also arise whether any practice which prevents a person from performing the last rites of her parents or prevents even her presence when such rites are being performed, would be opposed to basic human rights. Question would also arise whether any custom or usage which prevents a person from being cremated upon death as per the religious rites would not be opposed to fundamental right to profess any religion.
“I leave such questions to be decided in appropriate case if instituted before appropriate forum.”
Gupta intends to pursue the case before the next “appropriate forum,” the Supreme Court. Her long journey for justice has lengthened. She is fortunate that leading lawyers in both the High Court and Supreme Court have and are willing to render her assistance pro bono. If the VPA resolution barring entry signifies the worst aspects of the community, the legal fraternity exemplifies the best, both within and without the community.
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