Is Excommunication of Parsi Women for Marrying Non-Parsi, Unconstitutional?

Saji Koduvath, Advocate, Kottayam.

Introduction

A Parsi woman will lose her religious identity if she marries a Non-Parsi.  Unlike a woman, a Parsi man will not face such a predicament.

Can this anomaly be saved as an ‘essential religious practice’?  Is it an ‘integral practice’ touching upon the right to profess, practice and propagate one’s own religion?

Goolrokh Gupta v. Burjor Pardiwala

Contentions of the Petitioners: Goolrokh Gupta filed a Writ Petition before the Gujarat High Court praying to allow her to perform funeral ceremonies of her parents in the event of their death. The petitioner contended that no tenet of Zorastrianism denied a born Parsi woman, rights to her religious identity on marriage to a non-Parsi. But, the Parsi Trust takes such a discriminatory stance. The said custom did not apply to Parsi males. It is violative of the right to equality under Articles 14 of the Constitution of India. It was pointed out that this excommunication was a matter of social and constitutional concern.

Arguments of the respondents: The Parsi Trust opposed the petition and contended that denial of entry to non-Parsis to Parsi institutions was an essential practice of the religion and that under Article 26, the Parsi Trust was entitled to regulate entry.  The Respondents heavily relied upon an interpretation of Zorastrianism which directed renunciation of Parsi religion if a Parsi woman undergoes the inter-faith marriage. The respondents relied on Sardar Saifuddin v. State of Bombay (AIR 1962 SC 853),  wherein the Bombay Prevention of Excommunication Act, 1949 was struck down as unconstitutional by a Constitutional bench of the Supreme Court.

The Parsy Trust (respondents in the Parsi case, Goolrokh Gupta) raised contentions on “essential religious practice”. It was pointed out that such a contention was raised in the Sardar Saifuddin Case and it was fully accepted by the Apex Court; and also that the contentions of the respondents in Sardar Saifuddin (similar to that of the petitioners in the Parsy case, Goolrokh Gupta) were rejected by the Apex Court. The following were the contentions of the respondents in Sardar Saifuddin:

• The excommunication could be equated to the practice of untouchability, as the effect of both was the deprivation of human dignity and civil rights.
• The matter involved issues of the right to individual’s right to faith and practice religion under Article 25.
• Though there should be a need to balance the rights of individuals as well that of the denomination under Article 26 to manage internal affairs, due importance should be given to the rights of individuals, for the fundamental rights are primarily concerned with rights of individuals and protect individuality and choices.

Rejecting the aforestated arguments of the respondents, the Apex Court held in Sardar Saifuddin as under:

• “The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in The Commissioner, Hindu Religious Endowments Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt; Mahant Jagannath Ramanuj Das Vs. The State of Orissa; Sri Venkatamana Devaru Vs. The State of Mysore; Durgah Committee, Ajmer Vs. Syed Hussain Ali and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief, they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the COMMUNITY as a part of its religion.”

Majority dismissed the petition Upholding the Excommunication

Though the Gujarat High Court did not address the fundamental question placed by the respondents (Parsi institutions), as to whether the practice under consideration (of losing religious identity by laddies, if they marry Non-Parsies) was saved by ‘essential religious practice‘, the High Court dismissed the writ petition (Goolrokh Gupta v. Burjor Pardiwala, AIR 2012 CC 3266) of Ms. Gupta by 2:1 majority on the main ground that a Parsi woman, ceases to be a Parsi upon marriage with a non-Parsi under the Special Marriage Act. .

The majority pointed out that the English common law doctrine is that, in the absence of a specific statutory protection, the personality, known by religion, of a woman would merge into that of her husband.   Although such a principle of merger was not recognised by any of the religions in India, it had found that a married woman is identified by her husband’s family name superseding that of her father’s. The Court observed that it is of ‘general acceptance throughout the world’. The majority was of the opinion that the merger was essential to determine the religion of children born out of the marriage. To obtain reliefs from courts, countering this presumption, the bench observed that there should be a judicial declaration pursuant to a fact-finding inquiry. Since no such inquiry was conducted in the present case, the petitioner was deemed to have acquired the religious status of her Hindu husband. 

Minority Decision

J. Akil Kureshi, minority, found that there was no automatic conversion on marriage. Special Marriage Act, 1954 speaks of a special form of marriage in which both parties can retain their birth-religion insofar as the other conditions under Section 4 of the Act of 1954 were satisfied. Kureshi, J. noted that it highlights legislative commitment toward a secular state. He ruled that the petitioner retained her Parsi identity by solemnisation of her marriage under the Special Marriage Act.

Special Leave Petition before the Supreme Court

Ms. Gupta filed a Special Leave Petition before the Supreme Court.  The petition stands referred to a Constitutional Bench.  

It is pointed out that Goolrokh Gupta had not converted to the Hindu religion and the marriage was not taken place under the Hindu Marriage Act. The Special Marriage Act under which the marriage was solemnised, on the other hand, allowed the retention of religious identity. It was also pointed out that the matter was not one of acceptance by the religious or social community.  Therefore, it was contended that the presumption was that Ms Gupta continued as a Parsi.

The respondents, at the time of arguments before the Supreme Court, pointed out that the edicts of Zoroastrianism were very complex. Zoroastrianism is patrilineal and all the texts/edicts dictate that one was to marry within the fold of the religion itself. If one chose to marry outside the religion, they would not suffer excommunication but would end up in losing the privileges conferred on them by the religion. The Parsi Trust and other Respondents claimed that denial of entry to non-Parsis into the Parsi institutions was an essential practice of the religion and that it was protected  under Article 26, and that the Trust was entitled to regulate such entry.

Conclusion

The core issue involved in this case is the civil rights of an individual, protected under Article 25 of the Constitution of India, on one hand, and that of the religious denomination under Article 26, on the other. It can be definitely stated that the attempt of the Supreme Court will be to strike-out a balance, maintaining the Constitutional mandates.

The Appeal is pending consideration.

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