Rayomand Coins

Who can we turn to?

"Don’t put too much faith in the courts," a noted lawyer had cautioned sometime back when discussing moving the courts to establish the rights of Parsi women. Those words resonated when three Supreme Court (SC) judges, out of a bench of five, referred the historic Sabarimala Temple judgment to a bench of seven for review. The three justices reasoned, "The debate is not limited to this case, but also arises in… entry of Muslim women in a durgah/mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an agiary… There is yet another seminal issue… on whether a particular practice is essential to religion or is an integral of the religion, in respect of female genital mutilation in Dawoodi Bohras. It may not be inappropriate if matters… touching upon the right to profess, practice and propagate its own religion, are heard by (a) larger bench of commensurate number of judges."

The two dissenting Justices, Dr Dhananjaya Chandrachud and Ro­hin­­ton Nariman, noting the public outcry against the earlier judgment removing a ban on entry to women of menstruating age into the sacred Kerala temple as well as opposition from the ruling Bharatiya Janata Party referred to "the sad spectacle of unarmed women between the ages of 10 and 50 being thwarted in the exercise of their fundamental right of worship… When the (legal) process is complete and a decision is pronounced, it is the decision of the SC that binds everyone. Compliance is not a matter of option."

Goolrookh Gupta’s case, filed originally before a three-member bench of the Gujarat High Court on January 16, 2010, is now pending in the SC. At the urging of the justices, she and her two sisters were granted permission on compassionate grounds by the Valsad Parsi Anjuman to attend the funeral ceremony of their parents residing in the south Gujarat town as and when they expire. Other Parsi women married to non-Parsis would continue to be barred. But Gupta’s case pertains only to the right of Parsi women married to non-Parsis entering the Valsad fire temple and Doongerwadi, a right accorded to such Parsi women in most places.

In the matter of equal rights for Parsi men and women, Prochy Mehta/Sanaya Vyas filed an Originating Summons before the Calcutta High Court on December 19, 2016 asking the Court to opine on who has the right to enter the Mehta fire temple in the West Bengal capital city. That case is languishing in the Court. And whatever decision is arrived at, the judgment will be challenged before a division bench and then the SC. Another 10 years or more could easily pass.

Of course in many other matters the justices have acted swiftly to protect human rights and uphold liberal values. The Bombay High Court (BHC) permitted a change to adult franchise for trusteeship elections to the Bombay Parsi Punchayet (BPP). The old archaic scheme was impractical and easily manipulatable. In the case of the ban on two priests who were barred from praying at Doongerwadi because they performed funerary rites for those opting for cremation, the BHC ruled the trustees had exceeded their powers under the trust deed. The SC called for mediation and the matter was resolved. But not before the BPP frittered away over three crore rupees (USD 415,741) in legal fees.

Injustice done to Parsi women has its roots in the Petit vs Jeejeebhoy case of 1908 decided by BHC Jus-tices Dinshaw Davar and Frank Bea-man. The two defined a Parsi as being the offspring of a Parsi father. "Many mofussil Parsis kept alien mistresses, had illegitimate children by them and brought up those children as orthodox Parsis," Beaman noted. He referred to the "disapproval (of) the better class...regard(ing) the lax morals of the mofussil Parsis. It was not only because that conduct was irreligious — though that too doubtless weighed with them — but because it was lowering to the status of the community. Keeping Dubri mistresses and having Dubri children, was not only shocking to the correct Zoroastrian, as a marital offense — an offense, too, against his religion — but because the Dubri women belonged to a very low caste."

There was no such case cited of Parsi women having non-Parsi lovers and begetting illegitimate children from such liaisons. Either out of fear or chastity, they avoided such predilections. The Parsi men’s lax morals were therefore legitimized and rewarded as their progeny (including those "begotten of prostitutes or kept mistresses," as Beaman observed) were considered Parsis. But the Parsi women who married non-Parsis, and remained chaste and faithful were penalized and their children not included in the definition of Parsi. This sexist judgment from colonial times is, tragically, still valid 111 years later.

Of course, trustees of a fire temple have the right under the 1925 Saklat vs Bella judgment of the Privy Council to permit non-Parsis entry if they so wish. Thus the Delhi Parsi Anjuman managed Katrak Dar-e-Meher and the Wadia Dar-e-Meher managed by the Karachi Parsi Anjuman Trust Fund permit entry to the children of Parsi women married to non-Parsis. But trustees of all other fire temples in India have fought shy of upsetting the status quo.

What are the other options available besides the courts? In the past one could always appeal to the government to introduce a bill righting a historic wrong. But we have seen in the Sabarimala Temple case the union government preferred a status quo and even defied the SC order.

In April 1890, social reformer Beh­ramji Malabari journeyed to England to lobby with British women to coerce the government there to pressure the British administrators in India to pass the Age of Consent Bill in 1891, raising the age of consummation of marriage for Hindu girls from 10 to 12 years. Today, appealing to another nation is not an option for citizens of a sovereign nation. But the zeal that drove a person like Malabari to act can help shape public opinion within the community. If more Parsis opposed injustice and any form of racial and gender discrimination, Parsis may be inclined toward reform. Remaining docile or indifferent achieves nothing.


Villoo Poonawalla