On 7th December, the 5 Judge bench of the SC comprising Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan began hearing arguments in this case.
Ms Indira Jaising appeared for Goolrokh Gupta and argued that the matter involved issues of compassion, the right to equality under Article 14, and the right to practice religion under Article 25. On the rights flowing from compassion, Ms Jaising argued for the rights of the next of kin and questioned whether one could be barred from attending one’s father’s funeral. On Article 25 (the fundamental right to practice religion) and Article 26 (the group’s right to manage internal affairs), Ms Jaising argued that Ms Gupta self-identified as a Parsi and her right to religion could not be abrogated by the Parsi Trust. Then, Ms Jaising moved on to Article 14 and argued that it was a violation of equality that, unlike a woman, a Parsi man did not lose his religion on marrying a Non-Parsi.
At this point, Chief Justice Dipak Misra suggested that Ms Jaising should make the violation of Article 14 (Right to Equality) her primary argument. Ms Jaising responded that all rights must be protected including an individual’s right to faith. She thus declined to restrict herself to only the equality argument. The Chief Justice pointed out that the question was about the freedom of religion and there was a need to balance the rights of individuals as well that of the Parsi denomination. Ms Jaising replied that fundamental rights were conferred primarily on individuals to protect their autonomy and choices.
At this point, Justice Sikri pointed out that conversion to the Hindu religion was required if the marriage had taken place under the Hindu Marriage Act. The Special Marriage Act, on the other hand, allowed the retention of religious identity. Ms Jaising pointed out – thus the presumption that Ms Gupta is a Parsi. Justice Sikri agreed with her observation.
Further, Ms Jaising argued that it was not the case that acceptance by the religious and/or the social community- in this case, Parsis – was a pre-condition for a woman to retain her religious identity under the Special Marriage Act. It made no difference under the Special Marriage Act if the wife was of X religion and husband was of Y religion. Ms Jaising further submitted that the Court should treat the case of Goolrokh Gupta as an opportunity to amplify the significance of the Special Marriage Act, and therefore encourage inter-religious and inter-caste marriages.
Further, Justice Dipak Misra questioned the logic and reasoning behind the impugned judgment of the Gujarat High Court, whilst also stating that he did not agree with the application of the doctrine of merger (the identity of the woman merges with that of the husband after marriage), prima-facie (on the face of it, without further investigation).
Mr. Gopal Subramanium, appearing towards the end of the day, cited that the edicts of Zoroastrianism were very complex and begged the Court for the time required to understand and debate them. In any case, he put forward his preliminary submission, arguing that Zoroastrianism is patrilineal and all the texts/edicts dictate that one was to marry within the fold of the religion itself. If one chose to marry outside the religion, they would not suffer excommunication but would end up losing the privileges conferred on them by the religion.The matter is scheduled to be heard next on 14.12.2017.
(The post relies on contributions from Mr. Vijayant Singh)