Special Leave Petition SummaryParsi Excommunication
Background and Issue
In 2012 the Gujarat High Court in Goolrokh M. Gupta v Burjor Pardiwala and Ors held that by marriage to a Hindu man, a Parsi woman ceased to be a Parsi, unless a competent court declares that she has continued to be a Zoroastrian after marriage. The Petitioner, Ms. Goolrokh Gupta, was refused the right to enter the Parsi institutions in her hometown, and the right to perform the last rites of her parents if they passed away.
The petition raises questions on the consequences of marriage between persons of different religions under the Special Marriage Act,1954. Further, it questions the effect such marriages have on the religious and fundamental rights of the petitioner.
The petitioner claims that the High Court order affects not only her, but all women who marry under the Special Marriage Act, 1954. She claims that the Gujarat High Court has created a legal fiction where a woman marrying a person of a different religion has renounced her own, or changed it.
What Does the Petitioner Seek?
The petitioner prayed for the Court to:
Grant a special leave to appeal against the order of the Gujarat High Court.
Pass an interim order to stay the operation of the order of the Gujarat High Court.
Order the Parsi Trust to allow the petitioner to lift the restrictions from entering the Tower of Silence, Algari, and Fire Temple.
Grounds for the Petition
The High Court Order Vitiates the Purpose of the Special Marriage Act, 1954
The petitioner highlighted that the purpose of the Special Marriage Act, 1954 was to further secularism. Section 4 of the Act enables individuals to marry without having to denounce their religion. The provision merely states that the parties must not already have a spouse, must be of sound mind, and must cross the legal age to marry; therefore it does not place religion based restrictions on the parties.
The Gujarat High Court’s judgement stated that after marrying a non-Parsi man, a Parsi woman is ‘deemed to have acquired’ her husband’s religion. The petitioner contends that this is inconsistent with the purpose of the Act. Also that the Act does not state that the religion of the parties is affected in any way.
Freedom to Profess Any Religion as a Fundamental Right Violated
The High Court judgement states that the religion of a woman is that of her father before marriage and after her marriage, the same as her husband’s. The petitioner contends that the judgement fails to take note of the right to ‘freely’ profess any religion under Article 25 of the Constitution. Further, that unless there has been a voluntary conversion, the petitioner should be considered a Parsi.
The petitioner referred to Ratilal Panachand Gandhi v. State of Bombay, where the Supreme Court had held that the freedom of conscience refers to an individual right to have their own beliefs and doctrines for the sake of their spiritual well being. The impugned judgement predetermines the petitioner’s religion solely based on her marriage.
Gender Discriminatory Interpretation of the Act
The judgment of the Gujarat High Court pertains specifically to women who have married a person belonging to a different religion. The petitioner contends that this classification is discriminatory and violative of Articles 14, 15 and 21 of the Constitution.
Further, Ms. Gupta stated that the interpretation of the Special Marriage Act, 1954 is regressive. That it imposes an added burden on the women to prove that they have been practicing the religion they followed before marriage. The fact that the same burden is not imposed on men makes this a gender based categorisation.