A Parsi woman, Goolrukh Gupta, who was barred by an order of the Ahmedabad High Court from entering the community’s Agiari fire temple and the ‘Tower of Silence’ in Gujarat after marrying outside her community, has been granted the right to enter them by an order of the Supreme Court on Thursday, 14 December 2017.
Goolrukh had approached the Supreme court in 2012 after the Ahmedabad High Court, in 2010, stated that Parsi women marrying outside their religion lose their religious identity, and would not be allowed to enter the community’s fire temples or the Tower.
The ‘Tower of Silence’ is used for funerals and the performance of last rites by followers of the Zoroastrian faith – the traditional practice is to dispose of the dead by exposing the corpse to the sun and vultures.
The Ahmedabad High Court had cited customary law which said that a Parsi woman marrying outside her community surrenders her religious rights in the Parsi community and as a result, loses the right to visit the fire temples and the community’s ‘Tower of Silence’ in the event of her father’s death.
Observing that she hasn't "surrendered her affection for her father", the bench said "DNA does not evaporate" after marrying outside the religion.
The High Court had also held in their order that she would be deemed to have acquired the religious status of her husband unless a declaration is made by a court for continuation of her Parsi status.
The woman, in her Supreme Court appeal filed in 2012, said she had married a Hindu under the Special Marriage Act and should be allowed to retain her place in the Parsi community.
Senior advocate Indira Jaising, appearing for the woman in the Supreme Court, referred to the Common Law doctrine of merger of religion which says that the religion of a woman gets automatically merged with the faith of the husband after marriage.
"Can we adopt the Common Law doctrine of merger of religion in India when it has not been followed in the country of its origin?" Jaising said, adding that the constitutional validity of the Common Law principle would also be required to be tested.
Jaising said even if it was presumed that the doctrine of merger had the customary sanction, the customs will have to pass the test of constitutionality and no custom can be allowed to infringe the fundamental rights of a person.
"My submission is that there is no such custom, and even if there is, it will be hit by the provisions of the Constitution," she said at the hearing on 7 December.
The bench said it was only the woman who can decide her religious identity by exercising her right to choice.
It said the presumption that a woman changes her religion according to the faith of her husband does not exist if the marriage has been solemnised under the Special Marriage Act.
There is no law which says that a woman loses religious identity after marrying a man from another faith... Moreover, the Special Marriage Act is there and allows that two persons can marry and maintain their respective religious identities.SC bench
"A man marries outside the community and is permitted to retain his religious identity and a woman is not allowed to marry outside and retain her religious identity. How can a woman be debarred?" the bench said in the hearing on 7 December.
(With inputs from PTI and IANS)
(Breathe In, Breathe Out: Are you finding it tough to breathe polluted air? Join hands with FIT in partnership with #MyRightToBreathe to find a solution to pollution. Send in your suggestions to fit@thequint.com or WhatsApp @ +919999008335)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)