A five-member constitutional bench of the Supreme Court headed by Chief Justice Dipak Misra and comprising Justices A. K. Sikri, A. M. Khanwilkar, Dr D. Y. Chandrachud and Ashok Bhushan will hear sometime after Diwali the case pertaining to Goolrookh M. Gupta (pictured) versus Sam Chothia and other trustees of the Valsad Parsi Anjuman (VPA).
Khanwilkar, when a judge of the Bombay High Court had sanctioned the petition of the BPP favoring adult franchise. Chandrachud and Anoop Mohta had ruled in favor of the two priests banned by the BPP from performing religious ceremonies at Doongerwadi and two agiaries.
The special leave petition came up in the Supreme Court before a three-member bench headed by Misra, Khanwilkar and Chandrachud on October 9, 2017 challenging the Gujarat High Court (GHC) order of March 23, 2012 where by a majority of two to one the court had said that a woman born as a Parsi (by race) and initiated into the Zoroastrian religion, loses her Zoroastrian religion by virtue of her marriage to a non-Zoroastrian, Hindu male. This view was taken, notwithstanding that her marriage was solemnized under the liberal and secular Special Marriage Act of 1954, without her ever having renounced her Zoroastrian faith/religion.
The matter relates to the constitutional protection accorded to all individuals under Articles 21, 25 and 26 of the Constitution of India.
The GHC in a split judgment inter alia held that upon her marriage a woman is "deemed” and "presumed” to have acquired the religious status of her husband, unless a declaration is made by a competent court for continuation of her pre-marriage religious status. The High Court’s views are not restricted to Parsi women alone. Two justices stated, "in all religions, be it Christian, be it Parsi, be it Jew, the religious identity of a woman… shall merge into that of her husband” and "such principle is generally accepted throughout the world and therefore, until the marriage, after the name of the woman, the name of the father is being mentioned and after marriage, name of the husband is being mentioned for the purpose of further describing her identity.”
The High Court had declared that "when marriage takes place between a male and a female belonging to different religion, it should be presumed and considered that the woman after marriage has merged into the religion of her husband and such will be the identity of their family originating from their marriage.” . This, in the High Court’s view, even applies to marriages solemnized under the Special Marriage Act, 1954 — a special statute, specifically enacted by the legislature to register a special form of marriage where neither of the parties to the marriage are required to renounce their (respective) religions.
Clockwise from top: Justices Dipak Misra, A. M. Khanwilkar,
Ashok Bhushan, Dr D. Y. Chandrachud, A. K. Sikri
On the basis of such an interpretation of the scope of the Special Marriage Act, 1954 and the Constitutional freedom enshrined in Article 25, the High Court upheld the respondents’ right denying Parsi Zoroastrian women married to non-Parsi men (under the Special Marriage Act, 1954) from participating in the last rites of their own parents/relatives and from entering into the agiary, bungli, etc. The respondents before the High Court were trustees of the VPA. According to the trustees, once a Parsi Zoroastrian woman marries a non-Parsi non-Zoroastrian man, she ceases to be Parsi Zoroastrian and as such cannot enjoy any religious rights as are available to a Parsi Zoroastrian woman, an argument devoid of any merit or vires which the High Court agreed with.
Gupta claimed the bar on entry was in violation of the fundamental rights guaranteed under Articles 14, 15, 21 and 25 of the Constitution.
Senior counsel Indira Jaising, Sidharth Luthra and counsel Shiraz C. Patodia appeared for Gupta while Percy Ghandy appeared for the VPA with Karanjawala and Company.