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

‘Re­tains re­li­gious iden­tity even if she mar­ries out­side her com­mu­nity’

The Hindu - - NATION - Kr­ish­nadas Ra­jagopal

A woman does not mort­gage her­self to a man by mar­ry­ing him, and she re­tains her iden­tity, in­clud­ing her re­li­gious iden­tity, even af­ter she ex­er­cises her right to marry out­side her com­mu­nity un­der the Spe­cial Mar­riage Act, Chief Jus­tice of In­dia Di­pak Misra has ob­served.

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

“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,” said Chief Jus­tice Misra, head­ing a five-judge Con­sti­tu­tion Bench. No­body could pre­sume that a woman had changed her faith or re­li­gion just be­cause she chose to change her name af­ter mar­ry­ing out­side her com­mu­nity, he ob­served on Thurs­day.

The com­ments came on the first day of hear­ing by the Con­sti­tu­tion Bench on a pe­ti­tion from a Parsi woman, Gool­rokh M. Gupta, who was barred by her com­mu­nity from of­fer­ing prayers for her dead par­ents in the Tower of Si­lence for the sole rea­son that she mar­ried a Hindu un­der the Spe­cial Mar­riage Act.

The Bench, com­pris­ing Jus­tices A.K. Sikri, A.M. Khan­wilkar, D.Y. Chan­drachud and Ashok Bhushan, is de­cid­ing on the ques­tion whether the woman can keep her re­li­gious iden­tity in­tact af­ter choos­ing to marry some­one from an­other faith un­der the Act.

Par­a­digm shift

A de­ci­sion in favour of the woman would up­hold the fun­da­men­tal right to re­li­gion, dig­nity and life and cre­ate a par­a­digm shift for women of the mi­nor­ity com­mu­nity.

The Supreme Court had re­cently ruled in favour of Mus­lim women, declar­ing in­stant triple ta­laq un­con­sti­tu­tional, and has paved the way for a pro­posed leg­is­la­tion.

The Bench dis­agreed with the wide­spread no­tion in com­mon law that a woman’s re­li­gious iden­tity merged with that of her hus­band af­ter mar­riage.

In­di­cat­ing that this amounted to dis­crim­i­na­tion on the ground of gen­der, Chief Jus­tice Misra asked:

prima fa­cie

“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.”

“If a woman’s iden­tity is merged, then the Spe­cial Mar­riage Act is not re­quired, is it not?” Jus­tice Sikri said.

“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,” Chief Jus­tice Misra said.

The court said it had to de­cide whether a re­li­gious prin­ci­ple had dom­i­nance over the con­sti­tu­tional iden­tity of the Parsi woman.

Ar­gu­ing for the pe­ti­tioner, se­nior ad­vo­cate Indira Jais­ing said that ev­ery cus­tom, us­age, cus­tom­ary and statu­tory laws must stand the test of the prin­ci­ple of fun­da­men­tal rights. Ar­ti­cle 372 (con­tin­u­ance of the ex­ist­ing laws) of the Con­sti­tu­tion was sub­ject to Ar­ti­cle 13, which man­dated that laws should not vi­o­late the fun­da­men­tal rights of an in­di­vid­ual.

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

The Val­sad Parsi An­ju­man Trust, which op­posed Ms. Gool­rokh’s plea, said the High Court de­cided the case af­ter go­ing through the af­fi­davits of at least seven Parsi priests, say­ing the re­li­gious tenets hold that she ceased to be a Zoroas­trian upon her mar­riage to a Hindu and could not be al­lowed to of­fer prayers at a Zoroas­trian place of wor­ship.

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.

AP ■

A file photo of a Parsi woman pray­ing at the Fire Tem­ple in Mum­bai.

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