An Originating Summons questions the
trustees’ interpretation on who is permitted to
enter the Calcutta fire temple
Whether the children of a Parsi woman married to a non-Parsi can enter the Late Ervad Dhunjeebhoy Byramjee Mehta’s Zoroastrian Anjuman Atash Adaran in Calcutta forms the crux of an Orignating Summons (OS) filed by Calcutta residents Prochy Mehta and Sanaya Mehta Vyas on December 19, 2016 before the Calcutta High Court (CHC). The respondents in the litigation are the trustees of the Adaran, namely, Noshir Tankariwala, Y. J. Dastoor and J. S. Bilimoria.
The OS states that two grandchildren of the first plaintiff, Prochy and the children of the second plaintiff Sanaya, namely Nirvhan Mehta Vyas and Samara Mehta Vyas "had been visiting the Atash Adaran since 2006 without any dispute or demur whatsoever. However, with the change of the head priest of the said Atash Adaran, the rights of admission of children of Parsi women professing (the) Zoroastrian faith (while) married to a non-Parsi… were revoked.” Further, they were not permitted "to perform worship and other religious rites and ceremonies even when such children were duly initiated to the faith by performance of (a) navjote ceremony.”
Late Ervad Dhunjeebhoy Byramjee Mehta’s Zoroastrian Anjuman Atash Adaran
According to the OS, the Mehta family was informed telephonically "to refrain from bringing the plaintiff No. 1’s grandchildren to the Atash Adaran” by the newly appointed panthaky, Ervad Jimmy Taraporwalla, and subsequently by "a communication” dated July 27, 2015 from Tankariwala on behalf of the trustees.
According to the plaint, the trustees had however indicated in (their) annual report for the financial year ended March 31, 2016 "that they are not opposed to the idea of an appropriate direction being given by the Hon’ble Court in respect of the issue of denial of admission (to the Adaran to) children of Parsi women professing (the) Zoroastrian faith (while) married to a non-Parsi.”
The OS points out that while the out-married Parsi women’s children are denied admission, "the children of Parsi men professing (the) Zoroastrian faith (while) married to non-Parsi and non-Zoroastrian women continue to enjoy unfettered right to worship and perform religious rites and ceremonies at the Atash Adaran. (This) is discriminatory and constitutes interference with their right to worship and perform religious rites...and is against the general scheme of the indenture of trust dated September 19, 1915. Furthermore it is stated the last surviving male descendant of the settlor, one Dinshah Vimadalal...also expressed his reservation against (the) prevention” of entry to such children.
The plaint noted that on January 31, 2005 while "allowing an amendment” to the Adaran trust deed, the CHC observed "the time had come for the Court to take a pragmatic view for implementation of the object of the Trust and therefore the lady members of the community ought not to be deprived of the benefits of the Trust.”
The Mehtas claim, "the concept of gender equality is integral to (the) Zoroastrian faith.”
The questions raised before the Court are:
"Whether children of Parsi women professing (the) Zoroastrian faith (while) married to non-Parsis, properly initiated to (the) Zoroastrian faith by performance of navjote ceremony, are ‘members of (the) Parsi community professing (the) Zoroastrian faith’ within the meaning of clause 3 of the indenture of trust dated September 19, 1915?”
Whether such children "have a right to worship and perform religious rites and ceremonies at the… Atash Adaran?” and whether the provisions of the indenture of trust dated September 19, 1915 can and does prevent such children "from performing worship and religious rites and ceremonies at the… Atash Adaran?”
No entry
In his affidavit in reply dated June 5, 2017, Tankariwala opposed the OS and stated it was "misconceived and untenable both on facts and under the law...The matters in respect of which relief is sought...cannot be disposed of in a summary manner and this Hon’ble Court should be pleased to refer the parties to a suit in the ordinary course.”
The trustee cites the judgment of Petit vs Jeejeebhoy 1908 which noted "A Parsi is firstly the descendants of the original emigrants into India from Persia who professed the Zoroastrian religion.
"Secondly, the descendants of the Zoroastrians in Persia who were not amongst the original emigrants, but who are of the same stock and have since that date, from time to time, come to India and have settled here, either permanently or temporarily, and who profess the Zoroastrian religion.
"Thirdly, the children of a Parsi father by an alien mother, if such children are admitted into the religion of their fathers and profess the Zoroastrian religion.”
Narrating the history of the Adaran, the trustee noted, Ervad Dhunjeebhoy Byramjee Mehta established an Atash Dadgah at Canning Street "for the performance of sacred rites and ceremonies according to the tenets and principles of the Zoroastrian religion by Parsis professing the Zoroastrian faith.” One of Mehta’s sons, Roostumjee Mehta built the adaran on Metcalfe Street. Tankariwala notes, it is "significant to record that in paragraph 14 of the said trust deed dated September 19, 1915 it was provided that every trustee must be a Parsi male professing the Zoroastrian faith.” In the event the trustee ceased to profess the faith "he would be liable to be removed from the office.” In his personal will Roostumjee stipulated "that if any of his children married a person not being a Parsi professing the Zoroastrian faith, the child or children of such union would be disinherited...and the said share would vest in the Atash Adaran Trust.”
Tankariwala notes that the agiary has two floors. "The ground floor is open to all. The first floor is reserved for the performance of religious rites and ceremonies and for divine worship by Parsis following the Zoroastrian faith.” He says if Nirvhan and Samara had visited the ground floor "without dispute or demur” that would be "correct. However if the plaintiffs allege that the children had visited the upper floor of the fire temple since 2006 without dispute or demur whatsoever, it is false and false to the knowledge of the plaintiffs and is emphatically denied and disputed. I say that such children were taken up surreptitiously without the knowledge of the priest or the trustees.”
Tankariwala referred to a letter dated July 27, 2015 which states, "The trustees appreciate your feelings and your sentiments and have to advise that this matter had already been discussed at a meeting held by the trustees of two trusts, when you had raised the issue last year, as well as at the Adaran’s last AGM (annual general meeting), wherein it was accepted that the trust deed, which is sacrosanct, does not permit the trustees to accede to your request.
"However, the trustees have looked into the matter further in considerable detail and have received the opinion that the trust deed is sacrosanct and cannot be altered. Therefore, the children of Parsi mothers married outside the community will not be allowed in the Adaran even if their navjotes have been performed elsewhere.”
The trustees prayed the OS which they described as "speculative, harassing vexatious and made mala fide” be dismissed "with exemplary costs.”