Hearing in the special leave petition preferred by Goolrukh Gupta on the Gujarat High Court judgment dated March 23, 2012, commenced on Thursday before the Constitution Bench of the Supreme Court. Senior counsel Indira Jaising, appearing on behalf of the petitioner, submitted before the five-judge bench of the Supreme Court that “religion is a matter of choice. One may be born in a religion but as soon as one reaches the age of expression, one has the right to choose the religion they wish to practice”.
In the impugned judgment, the high court had upheld the decision on part of Valsad Parsi Anjuman Trust to restrain a Parsi woman from participating in the funerary rites of her father at the Fire Temple dedicated to Zoroastrianism on the ground that upon marriage to a Hindu man under the Special Marriages Act of 1954, the woman had ceased to be a Parsi and deemed to have converted to Hinduism.
Jaising further stated, “The freedom of conscience and free practice, profession and propagation of religion as guaranteed under Article 25 of the Constitution is vested in an individual and not in a religious denomination. The liberty of belief, faith and worship as envisaged in the Preamble has to be linked with the fundamental right under Article 25. The religion of any person cannot be dictated, least of all by the State.”
She said, “The restriction placed on the woman was not one imposed by the religion; it was at the behest of the trustees of the denomination. It amounts to excommunication. By stopping the daughter from participating in the funerary rites of her father, her filial right has been violated. That tantamounts to a contravention of the right to association guaranteed under Article 19.”
“The treatment meted out to the woman is sex-based. A Parsi man getting married to a non-Parsi woman would not be so discriminated. There has also been a violation of the right imbibed in Article 15,” she said.
In response, Chief Justice Misra also conceded, remarking, “I cannot perceive how a reasonable classification can be made on the basis of the biological difference between the two genders.”
Thereafter, the senior advocate sought to challenge the validity of the common law doctrine of merger of personality relied upon by the Gujarat High Court, in so much as the doctrine iterates that after marriage, the personality, including the identity and religion, of the wife merges with that of her husband.
“Can we import this English doctrine of common law which has been abandoned in its own country of origin,” Jaising asked.
“Common law can only be enforced in India under Article 372. However, to be eligible for such enforcement too it is necessary that such doctrine fulfil the mandate of the provisions of the Constitution, particularly the fundamental rights. The proposition of law that there shall be a conclusive presumption to the effect that a woman, post marriage, converts to the religion of her husband and that the woman should go to the court to disprove the same is not acceptable. That change of name tantamounts to change of religion is not acceptable,” she said.
“Law, for the purpose of Article 13, means statutory law as well as customary law. There cannot be said to be in practice any custom or usage within the Parsi community on the lines of the doctrine of merger. Also, for any such custom to be legally enforceable, it is necessary that it satisfies two criteria- one, that it is ancient, unbroken and undisputed, and two, that it is in accordance with morality, decency and public policy,” she said.
The bench observed, “The purpose of the Act of 1954 is for the parties to the marriage to retain their individual religious identity post marriage. If either party had to convert to the religion of the other, then they would have solemnised the marriage under the Hindu Marriage Act of 1956. Unless the wife expressly denounces her religion and converts to the religion of her husband, logically there is a presumption that she is continuing to practice her own religion. Prima facie there is no case for accepting the application of the doctrine of merger.”
Finally, the apex court granted time to senior counsel Gopal Subramanium, representing Valsad Parsi Anjuman Trust, to seek instructions on the issue of permitting Parsi women married to non-Parsis to take part in Zoroastrian rites and scheduled the matter for December 14 for further hearing.