A women doesn’t mortgage herself to a man with marriage, asserts CJI 

A women doesn’t mortgage herself to a man with marriage, asserts CJI 

What has happened?

SC made certain observations while hearing a petition filed by a Parsi, who was barred by her community from offering prayers to her dead in the Tower of Silence for the sole reason that she married a Hindu under the Special Marriage Act

What is Special Marriage Act?

The Special Marriage Act of 1954 is seen as a statutory alternative for couples who choose to retain their identity in an inter-religious marriage

Petition against HC judgement

The petition is against the Gujarat High Court’s March 23, 2012 judgment, which held that Ms. Goolrokh Adi Contractor ceased to be a Parsi as she had married Mahipal Gupta, a Hindu, under the provisions of the Special Marriage Act

Observations

• Nobody could presume that a woman has changed her faith or religion just because she chose to change her name after marrying outside her community
• The very fact that petitioner Goolrookh M. Gupta, married under the Special Marriage Act, did not choose to convert showed that she had intended to retain her religious identity as a Zorastrian. A decision in favour of the woman would uphold the fundamental right to religion, dignity and life and create a paradigm shift for women within the minority community

Observations specific to the petition

• 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
• The Bench, prima facie,disagreed with the widespread notion in common law that a woman’s religious identity merges with that of her husband after marriage
  • Indicating that this amounted to discrimination on the ground of gender, Chief Justice Misra asked, “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 that she cannot go to the Tower of Silence? No law debars a woman from retaining her religious identity.”

Question before the bench

• The 5-judge Bench, is deciding the question whether a Parsi woman can keep her religious identity intact after choosing to marry someone from another faith under the 1954 Act
• The court said it had to decide whether a religious principle had dominance over the constitutional identity of a Parsi woman

Petitioners’ argument

Petitioner side has argued that,

• Every custom, usage, customary and statutory laws had to stand the test of the Fundamental Rights principle. Article 372 (continuance of existing laws) of the Constitution was subject to Article 13, which mandated that laws should not violate the fundamental rights of an individual
• The fundamental right enshrined in Article 14 of the Constitution guaranteed equality before the law and the equal protection of the laws. It prohibited discrimination on grounds of religion, race, caste, sex or place of birth
• Denying a woman respect and the right to observe her religion merely because she married outside her faith was violative of her fundamental right to religion enshrined under Article 25 of the Constitution
• There was a difference of opinion on the issue within the Parsi community itself. While some pockets allowed women who chose inter-religious wedlock into the Tower of Silence, others did not
• The ‘doctrine of coverture’, which held that a woman lost her identity and legal right with marriage, was violative of her fundamental rights. ”The doctrine is not recognised by the Constitution

Directions to Parsi Trust

The court asked the Valsad Parsi Trust to inform by December 14 whether it would allow Ms. Goolrokh to attend the last rites of her parents