No law provides change of woman’s religion after marriage: SC 

No law provides change of woman’s religion after marriage: SC 

Context

The bench said it was only the woman who can decide about her religious identity by exercising her right to choice

What has happened?

A five-judge Constitution Bench headed by Chief Justice Dipak Misra while dealing with a legal question whether a Parsi woman loses her religious identity if she marries a man from a different religion, has said that the law does not sanction the concept of a woman’s religion getting merged with her husband’s faith after an inter-religion marriage

Bench’s directions

Court has asked senior advocate Gopal Subramanium, representing the ‘Valsad Parsi Trust’, to take instruction and apprise it on December 14 as to whether it can allow Goolrokh M Gupta, a Parsi woman who had married a Hindu, to attend the last rites of her parents.

Challenge to Gujarat HC judgement

Gupta has challenged the customary law, upheld by the Gujarat High Court in 2010, that a Parsi woman marrying a Hindu loses her religious rights in the Parsi community and hence, loses the right to visit the ‘Tower of Silence’ in the event of her father’s death to perform the last rites

Bench’s observations

• There is no law which says that a woman loses religious identity after marrying a man from another faith… Moreover, the Special Marriage Act is there and allows that two persons can marry and maintain their respective religious identities
• A man marries outside the community and is permitted to retain his religious identity and a woman is not allowed to marry outside and retain her religious identity. How can a woman be debarred
• it was only the woman who can decide about her religious identity by exercising her right to choice
• The presumption that a woman changes her religion according to the faith of her husband does not exist if the marriage has been solemnised under the Special Marriage Act
• the short issue was whether a woman can be allowed to visit and pay respect to her parents after death and asked Subramanium to seek instruction from the Parsi trust and apprise it on December 14, the next date of hearing

Petitioner’s argument

• Common law doctrine: Petitioner’s side referred to the Common Law doctrine of merger of religion which says that the religion of a woman gets automatically merged with the faith of the husband after marriage
• Can we adopt the Common Law doctrine of merger of religion in India when it has not been followed in the country of its origin? Adding that the constitutional validity of the Common Law principle would also be required to be tested
• Test of constitutionality: Even if it was presumed that the doctrine of merger had the customary sanction, the customs will have to pass the test of constitutionality and no custom can be allowed to infringe the fundamental rights of a person.

Backdrop

• On October 9, the apex court had referred to to a five-judge constitution bench the legal question whether a Parsi woman loses her religious identity after marrying a man of different religion
• The bench was hearing a plea filed by Gupta challenging the High Court judgement holding that a Parsi woman is deemed to have converted to Hinduism after she marries a Hindu man
• The woman, in her appeal filed in 2012, said she had married a Hindu under the Special Marriage Act and should be allowed to retain her place in Parsi community. She had assailed the high court finding that a woman universally loses her paternal identity just because of her marriage with a man practising the Hindu religion
• She had also sought the right to visit the ‘Tower of Silence’ in the event of her father’s death to perform last rite

Usage of the tower

The Tower is used for funerary purposes by the adherents of the Zoroastrian faith, in which the traditional practice for disposal of the dead involves the exposure of the corpse to the sun and vultures