Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 11]

Khambata: judicial review can't be excluded in such cases, abroad there is no such practice. in India, children of women are not allowed this judgment said.

CJI: issue what you are saying may not be required in terms of articles 25 and 26, I think section 19 and 21 [of special marriage act]of the Act itself says

Khambata: originally, I thought not to go

CJI: your simpliest argument would be majority judgment runs contrary to the statutory scheme. statute is protected under article 25(2)(b)

Khambata: but this doesn't apply to man who is marrying outside

J Nagarathna: children of parsi father has benefit of zoorastrian by birth, same thing should apply to women. how can it be taken away because of marriage

Khambata: she is a devotee; she doesn't want to say she is a non-devotee

J Nagarathna: otherwise non zoorastrians are not permitted

Khambata: yes, in India

Khambata: my submission would be a balance has to be struck between article 25(2)(b) and 26(b)

J Sundresh: this is a case of a believer

Khambata: dying believer, so many are inter marrying.

J Sundresh: this practice presupposes once there is inter marriage, faith is given up

J Nagarathna: its virtually an ex communication. they are challenging ex communication

J Nagarathna: so its like a violation of article 25(1) right

Khambata: there is no prohibition to petitioner or any one from continuing to profress or practising zoorastarian. but the trust have curtailed the rights saying parsis rights will be curtailed from entering the agiyari temple.

Khambata: there is no presumption that a person born as zoorastrian converts upon marriage. there is an automatic deemed conversion

J Kumar: she has children?

Khambata : bombay judgment as held that if a man marries, his children are not ex communicated

J Bagchi: all this comes down common law doctrine to merger of woman's personality to the man

Khambata: doctrine of coverture is not more accepted

J Nagarathna: because doctrine of conscience is by birth can't be taken away merely by marriage

J Bagchi: could this be traced to essentiality to maintain the essentiality

Khambata: a born parsi woman by contracting a civil marriage with non-marriage would be deemed to be non-parsi unless a declaration is made by the court. after the declaration is made by competent court after full fledged fact finding whether she continues to adopt the parsi religion. lady just wants to continue her religion, she doesn't want anything more.

J Nagarathna: in hindu law, unless both are hindu, it is not considered hindu marriage

Khambata: but the special marriage act allows that. we have the parsi marriage and divorce act, parsis can marry but if one of them is hindu, they have to go to the special marriage act and the onus is put on the woman