In search of justice

Goolrookh Gupta and her sisters Shiraz Patodia and Kamal Thapar will be permitted to attend funerary ceremonies at the Valsad Doongerwadi after the south Gujarat Parsi anjuman relented under the urging of the Supreme Court of India. The sisters’ elderly parents Adi and Dina Contractor reside in Valsad whose anjuman passed a resolution over 10 years ago barring entry to the local fire temple and Towers of Silence to Parsi women married to non-Parsis. The lawyer for the Valsad Parsi Anjuman Gopal Subramanium told the five member bench on December 14, 2017 that the high priests of the Parsi community were consulted, after which the decision was taken. The Court commended the humanitarian stand taken by the Anjuman.
All issues of law including entry to the local fire temple, the fundamental rights of women to retain their religions while marrying under the Special Marriage Act will be heard on January 17, 2018, Patodia informed Parsiana.

Sisters (from left): Kamal Thapar, Goolrookh Gupta and Shiraz Patodia

On December 7, 2017 the bench led by the Chief Justice of India Dipak Misra and comprising justices A. K. Sikri, A. M. Khanwilkar, D. Y. Chandrachud and Ashok Bhushan at a hearing gave the Valsad Parsi Anjuman till December 14 to reconsider their ban on entry to the south Gujarat town’s adarian and Doongerwadi to Parsi women married to non-Parsis.
Gupta is challenging the decision of a three member bench of the Gujarat High Court that ruled women who marry under the Special Marriage Act take on their husband’s religion. Arguing on behalf of Gupta, Indira Jaising told the bench "religion is a matter of choice. One may be born in a religion but as soon as one reaches the age of expression, one has the right to choose the religion they wish to practice,” according to a report on the livelaw.in website.
Jaising further stated, "The freedom of conscience and free practice, profession and propagation of religion as guaranteed under Article 25 of the Constitution is vested in an individual and not in a religious denomination. The liberty of belief, faith and worship as envisaged in the Preamble has to be linked with the fundamental right under Article 25. The religion of any person cannot be dictated, least of all by the State.
"The restriction placed on the woman was not one imposed by the religion; it was at the behest of the trustees of the denomination. It amounts to excommunication. By stopping the daughter from participating in the funerary rites of her father, her filial right has been violated. That tantamounts to a contravention of the right to association guaranteed under Article 19.
"The treatment meted out to the woman is sex-based. A Parsi man getting married to a non-Parsi woman would not be so discriminated. There has also been a violation of the right imbibed in Article 15,” she said.
According to a report in The Hindu of December 8, Justice Misra observed: "The Special Marriage Act confers on her the right of choice. Her choice is sacred. I ask myself a question: Who can take away the religious identity of a woman? The answer is only a woman can choose to curtail her own identity…
"How can you (Parsi elders) distinguish between a man and woman singularly by a biological phenomenon… If a woman says she has not changed her religion, by what philosophy do you say she cannot go to the Tower of Silence? No law debars a woman from retaining her religious identity… The Tower of Silence is not a mutt or a citadel of a cult. It is a place to offer prayers to the dead. Can such a right of a woman be guillotined? It is part of her constitutional identity.”
According to the daily, Justice Sikri commented, "If a woman’s identity is merged (with her husband’s), then the Special Marriage Act is not required, is it not?”
The Indian Express of December 8, quoted Justice Misra as stating "The question is what will prevail — the constitutional identity of a woman or religious beliefs.” Regarding Gupta, he added, "Unless there is a conversation to another religion, there must be a presumption that she retain her religion.”
Justice Mishra asked Valsad counsels Subramanium and Percy Ghandy whether they would reconsider their ban "You must tell the trustees… rigidity is not always a correct principle of understanding a concept of religion.”
The order of the Court dated December 7, stated "both of (the lawyers), we must state, in all fairness, prayed for some time to obtain instructions. We will be failing in our duty if we do not say that they sought time to obtain instructions in deference to the Court’s suggestion. We record our appreciation for taking the suggestion in extremely good spirit.”
Former Bombay Parsi Punchayet (BPP) trustee and chairman of the World Zoroastrian Organisation Trust Funds Dinshaw Tamboly has filed an application for intervention in the case.
"During his (12 year) tenure as the trustee of the BPP trust, the applicant managed two agiaries (Godavara agiary at Fort, Bombay and Shapoorjee F. Jokhi agiary at Nepean Sea Road, Bombay) and the Tower of Silence/Doongerwadi…
"For almost 12 years, the BPP did not in any way discriminate against the intermarried ladies married under the Special Marriage Act 1954, from attending the said agiaries.
"That to the best of the applicant’s knowledge, the above position continues even at present and such Parsi Zoroastrian ladies do go to the agiaries and also to the Tower of Silence to attend to the funeral of their near and dear ones and perform their last rites as per the Parsi Zoroastrian religion.
"That also to the best of the applicant’s knowledge, most of the agiaries and atash behrams in Bombay do not prevent intermarried Parsi ladies from attending the agiaries/atash behrams.”