Orthodox victory

A few weeks ago, the editor of a liberal community publication lost a wager on the outcome of the now famous case of Goolrookh Gupta vs the Valsad Parsi Anjuman (VPA) trustees. This writer, out of his legal experience, believed that since a writ petition (as opposed to a suit) cannot lie against non-State persons, like the Valsad trustees, Goolrookh would lose on a technicality. However, when one read the majority judgment of Justices Jayant Patel and R. M. Chhaya (with Justice Akil Kureshi dissenting), one almost could not believe one’s eyes.

Judges (from left) Akil Kureshi, Jayant Patel and R. M. Chhaya;

The majority judgment unequivocally held that a Parsi woman married even under the Special Marriage Act (SMA) 1954 (popularly, a civil or registered marriage as distinguished from a religious ceremony like under Hindu Vedic rites or nikaah or a church marriage) ceases to be a Parsi Zoroastrian.

Read this atom bomb dropped on the intermarried women’s Hiroshima:

"A born Parsi woman by contracting civil marriage with a non-Parsi under the Special Marriage Act would cease to be Parsi and she would be deemed and presumed to have acquired the religious status of her husband unless declaration is made by the competent court for continuation of her status of Parsi Zoroastrian after her marriage. After the declaration is made by the competent court after undertaking full fledge fact finding inquiry on the aspects as to whether after marriage, she has totally abjured Hinduism, the community to which her husband belongs and she has continued to remain as Parsi Zoroastrian.”

Goolrookh Adi Contractor married Mahipal Gupta, a Hindu, under the SMA. However, there was also a Hindu Vedic rites ceremony and Goolrookh changed her name to Neha, sometime before her marriage. Although this is not set out in the judgment, there are conflicting versions whether Goolrookh showed herself as a part of Gupta’s HUF (Hindu Undivided Family). Of course, Goolrookh consistently asserted that she had not, for a moment, abandoned Zoroastrianism or accepted the Hindu faith.

Citing the treatment meted out to another intermarried Parsi woman by the Valsad trustees (who are as orthodox as they come and have now unwittingly become the heroes of the traditionalist cause), Goolrookh was afraid that she would not be permitted to enter the Valsad Agiary or attend the death ceremonies of her aged parents. She of course could not, stated the Valsad trustees. After many a technical legal battle, Goolrookh’s writ was heard, at length.

The majority reasoning behind reaching the core ratio of the judgment is apparent from the following passage:

"Unless it is established in any court of law after undertaking fact finding inquiry that even after marriage, the woman has continued with her own religion which existed prior to the marriage, but such conclusion can be recorded only when it is established by cogent and satisfactory evidence before the competent civil court after undertaking a full-fledged fact finding inquiry. But in absence thereof, it is to be deemed that the wife has acquired the religion of husband after marriage.” (emphasis ours)

Goolrookh Gupta

The Court has thus cast the burden of proof on the intermarried woman who is presumed to have adopted her husband’s faith by the mere act of marriage, even under a civil process.

"It is a matter of fact that no fact finding inquiry has been undertaken on the aspect of the status of the petitioner herein to be continued as Parsi Zoroastrian after marriage nor this Court in a petition under Article 226 of the Constitution can conveniently undertake such exercise. Therefore, in absence of any fact finding inquiry undertaken about the status of the petitioner on the aspects of her non-acceptance of the Hindu society as Hindu and the acceptance and continuation of her status as Parsi Zoroastrian, 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, may be even under Special Marriage Act.” (emphasis ours)

In all fairness to the learned judges, it is true that in most other Indian religions like Hinduism, Islam or Christianity, if the male married a woman outside his faith, the woman is presumed to have accepted the faith of her husband, if the marriage has been solemnized under a religious ceremony of the male’s faith.

This brings us to what we believe was the strategic blunder in Goolrookh’s case. Goolrookh was not the right candidate to commence this legal battle, given the facts of her case: some evidence that, in addition to the civil marriage, there was a Hindu Vedic rites ceremony at Radio Club; changing her name to Neha, a Hindu name; filing tax returns as a member of her husband’s HUF (this is the allegation of the Valsad trustees, we have seen no evidence to substantiate it. Goolrookh denies the charge). In any event, all these factors made Goolrookh an inappropriate petitioner and could have well clouded the Court’s thinking. A Parsi woman married only by civil process and not having the above baggage would have certainly made a far better candidate to launch this judicial challenge.

This writer also believes that perhaps the outcome would have been different before a Bombay court, with a better understanding of our community issues.

The ladies from the Association of Inter-Married Zoroastrians (AIMZ) should have strategically co-ordinated this battle, with the help of some of the finest Indian legal minds of our community, liberally inclined and ready to offer their services gratuitously.

While the learned judges did not opine on the right of the Valsad trustees to debar Goolrookh, some of their observations seem to suggest that the trustees have a right to decide whom to permit entry.

"To put it differently, if any person wants to profess and practice any religion, the same is not so prohibited but whether he or she should be permitted to enter to the place of worship or not would be a matter of religion by a particular religious denomination or a section thereof.”

The only redeeming grace of the majority judgment is to be found in the following passage:

"However, we find it proper to observe that the judgment shall not operate as a bar to the petitioner to move the appropriate civil court for declaration of her status as that of Parsi Zoroastrian female after marriage with non-Parsi nor the present judgment shall not operate as a bar to the petitioner in claiming her rights even as non-Parsi Zoroastrian before the appropriate court or authority by resorting to appropriate proceedings.”

The reformists will have to hope that the Supreme Court agrees with the dissenting views of Justice Kureshi, when he said:

"To my mind, therefore, the petitioner was well within her right to retain her religious identity, continue to follow the Parsi Zoroastrian religion and to be recognized as Parsi Zoroastrian even after the marriage with Mahipal Gupta.

"None of these provisions govern or even provide any indication regarding religious identity of a woman who marries a person belonging to another religion under the Act of 1954. Section 4 which starts with a non-obstinate clause is a strong indication that any person solemnizing marriage under the Act of 1954 does not have the obligation to relinquish the religion be it husband or wife nor is required to embrace the religion of the spouse. Even otherwise the concept of deemed conversion of wife into the religion of husband unless the contrary is established before the Court, would lead to numerous complications. Firstly, relinquishment of a religion and embracing another one is a matter of faith, ordinarily preceded by ceremonies prescribed under the respective religions and coupled with the intention of person to relinquish one religion and embrace the other. To my mind, there cannot be any concept of deemed conversion without either the necessary ceremonies having been performed or person under consideration having any intention to convert.” (emphasis ours)

After Roxanne Shah’s tragic accidental death, the AIMZ was formed and it managed to confirm and establish the rights of intermarried Parsi women. Goolrookh’sjudgement has undone it all.

The trustees of most of our agiaries (including the Bombay Parsi Punchayet) are gleeful at this judgment. We shall soon hear of instances of denial of entry to intermarried ladies.

AIMZ and other liberal groups have to now assist Goolrookh in approaching the Supreme Court. If the Bombay High Court judgment in the banned priests case stunned the orthodox, Goolrookh’s judgment, if not reversed by the apex Court, will simply devastate the reformist cause.

A writ lies only against the State, that is, governmental, regulatory and statutory agencies and not against private persons. One of its purposes is to provide a remedy where there is a breach of the fundamental rights of a citizen. Against private persons, like the Valsad trustees, a suit has to be instituted. However, realizing the delays a suit would entail, Goolrookh preferred a writ on the ground that the trustees’ actions would be violative of her fundamental right to religion. Many lawyers including this writer believed that her writ did not lie and may be dismissed on a technicality. Somewhat surprisingly, her writ was not only admitted but fully heard. The majority judges holding that such a writ would lie and the dissenting judge holding (correctly, in the opinion of this writer) that it did not. While Goolrookh’s lawyers did succeed in maintaining their writ, it ultimately ended in an unmitigated disaster for their hapless client and similarly placed ladies.

Berjis M. Desai is managing partner of J. Sagar Associates, advocates and solicitors and a weekly columnist for The Bombay Sama-char.