Entitled to enter? - VII

"The rights of women are today universally accepted as an inalienable, integral and indivisible part of universal human rights,” states the Special Leave Petition (SLP) filed in the Supreme Court (SC) against the three-member bench jud­ge­ment of the Guja­rat High Court in the matter of Goolrookh Gupta vs Valsad Pa­r­si Anju­man (VPA).

The SLP filed on Gupta’s behalf by her sister, Shiraz Patodia, advocate on record in the Supreme Court of India, is due to be heard shortly. "We have briefed senior counsel Harish Salve and Abhishek Singhvi in the said matter,” states Patrodia in an e-mail to Parsiana. Both senior counsel have agreed to represent Gupta pro bono, as did her lawyer Percy Kavina in the High Court.

Gupta has asked the SC to grant her interim relief pending disposal of the petition. These include a stay on the operation of the Gujarat High Court judgment, and the VPA allowing and not preventing her from entry to the fire temple and Doongerwadi.

In March this year the Gujarat High Court had upheld the resolution passed by the VPA barring Parsi women married to non-Parsis the right of entry to the fire temple and Towers of Silence. Two of the judges contended that a woman married under the Special Marriage Act (SMA) 1954 was deemed to follow the religion of her husband while the third judge contended that a writ petition (WP) is not maintainable against private parties. Gupta had filed a WP.

"There is no law in India which says that a woman must adopt her husband’s name or religion upon marriage,” stated the SLP. "It was pointed out by the King’s Bench as far back as 1917 that ‘a wife acquires by the status of marriage the domicile of her husband and is subject to the law of that domicile, but she does not acquire his religion or become subject to the laws of that religion’ (Rex vs Hammersmity Superintendent, Registrar of Marriages: Mir Anwaruddin). Further the 235th report of the Law Commission of India clearly states that conversions are separate from marriage and notes that conversion is a solemn act, not necessarily requiring any rites or ceremonies — and cannot be placed on the same pedestal as marriage...

"The Special Marriage Act, 1954 was enacted as a progressive legislation...enabling two persons belonging to different religions to enter into marriage without either having to renounce his or her religion and/or convert to the religion of the other. Originally, the 1872 Act did not apply to marriages between persons either of whom were Christian, Jewish, Hindu, Sikh, Parsi, Buddhist or Jain. The Amending Act of 1923, which contained provisions regarding solemnization of inter-religious marriages, required the parties to renounce their religion and thereafter, have their marriage registered under the said Act upon a declaration that they do not profess any of the aforementioned religions. The Special Marriage Act of 1954, departing from the previous position, provided for a ‘special form of marriage… irrespective (of) the faith which either party to the marriage may profess’... thereby divorcing religion from personal laws.

"Therefore, under the present law, a Parsi Zoroastrian woman upon her marriage to a non-Parsi under the Special Marriage Act, 1954 continues to be a Parsi Zoroastrian and continues to profess the Zoroastrian religion... The aforesaid Act, it is submitted, was amended to bring it in line with the constitutional values of secularism and an egalitarian social order that Independent India aspired to achieve.

"The Impugned Judgment, thus, compels every woman, who does not intend to adopt her husband’s religion after an inter-religious marriage, to file legal proceedings and obtain a declaration that she continues to practice the same religion that she did prior to such marriage. By doing so, it is submitted, the Impugned Order subjects her Article 25 rights ‘to freely profess, practice and propagate religion’ to a verdict of a court acknowledging that right...In other words, a woman’s right under article 25, at different stages of her life, according to the Impugned Order, is dependent on her father or her husband or a court of law…

"The only condition necessary for recognition and enforcement of this right (under Article 25) is that the person belongs to the religion. Thus once a person is initiated into a particular religion, as a matter of law, he or she has the right to practice that religion, freely, without any hindrance...

"It is further submitted that the Honorable High Court committed grave error in failing to consider that initiation into a particular religion is not always automatic or even by birth — in fact most religions mandate performance of certain ceremonies that mark the admission of the person into that particular religion. By way of the deeming fiction introduced by the Honorable High Court, a person not considered as belonging to a particular religion — absent the ceremony initiating her into the religion — is now thrust into the community by the mere fact of marriage to a member of such community. The High Court ought to have appreciated that relinquishment of a religion and embracing another one is a matter of personal faith of an individual...

"The Impugned Judgment is also vitiated by a fundamental fallacy in law, i.e. equating race, religion and caste...

"As per the Impugned Judgment, consequent to her marriage to a non-Parsi, the petitioner automatically loses her identity as a natural born Parsi Zoroastrian and therefore is held to lose the right to attend and pray at the agiary (fire temple), attend and participate in funeral ceremonies at the Doongerwadi (Towers of Silence) including sitting in the room where the body of the Parsi Zoroastrian is kept (even of her own parents/siblings/friends), to perform ceremonies at that place, or have her own funeral conducted at the Tower of Silence. Curiously, such religious ostracism does not apply to Parsi Zoroastrian males married to non-Parsi females. In fact, in their context, even their children (born out of such inter-religious wedlock to a non-Parsi Zoroastrian woman) can be recognized as Parsi Zoroastrians.

"The Court came to these conclusions, despite categorically admitting and/or considering that:

?There was no material whatsoever to show that there was anything in the Parsi Zoroastrian religion which would show how entry of a non-Parsi to a fire temple or Tower of Silence for offering prayers would violate the integral parts of Zoroastrian religion;

¡Different Parsi denominations spread across the world (including India) are applying different rules of conduct on Parsi women married to non-Parsi men. While the agiaries/trusts situated in Delhi, Pardi, Kanpur, Madras, Jabalpur, Allaha­bad, Daman, Chikhli, Jamshed­pur, Kolkata, Vadodara, London, Ontario (Canada), Florida and Chicago (USA) — do not prohibit Parsi Zoroastrian women married to non-Parsi men to enter or offer prayers at the Parsi agiary or participate in Parsi religious functions and ceremonies...

?In the past, the same respondent trust, under the management of different trustees/office bearers, permitted Parsi Zoroastrian women married to non-Parsi men to enter and/or offer prayers at the agiary in Valsad and/or participate in Parsi religious functions and ceremonies, including attending prayers at the Tower of Silence...

?In Jamsheed Kanga and Anr. vs. Parsi Panchayat Funds and Properties & Ors 2011 the Bombay High Court, after considering the landmark decisions in Petit vs Jeejeebhoy and Saklat vs Bella as well as the various judicial pronouncements of this Honorable Court, inter alia held that:

?the administration of a religious trust is a secular activity,

?trustees are to only perform secular duties and do not have any religious functions,

?a right is recognized in absolute terms in every member of the Parsi community, who professes Zoroastrian religion, to be able to utilize the Towers of Silence as a place for exposure of the dead and for the purposes of religious rites and ceremonies,

?the trustees have not been conferred with the power to exclude,

?no power of excommunication exists in the Zoroastrian faith...

"The Honorable High Court failed to appreciate that the respondent, which admittedly provides facilities for disposal of the bodies of human beings, is performing a public function or an activity in the nature of a public function, and a writ petition filed under Article 226 of the Constitution is thus maintainable against the respondent...

"The High Court has committed a grave error by forbidding the petitioner, a born Parsi, Zoroastrian woman, from freely practicing her Zoroastrian religion. The Impugned judgment, in addition to being wrong in law, is deeply misogynist and totally hampers women’s empowerment in India.”