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No law provides change of woman’s religion after marriage: SC

The bench said it was only the woman who can decide about her religious identity by exercising her right to choice.

By: PTI | New Delhi | Published: December 7, 2017 8:29 pm
Suprme court, women's religion, SC on religion, women after marriage, marriage law, hindu marriage law, muslim marriage law, The bench was dealing a legal question whether a Parsi woman loses her religious identity if she marries a man from a different religion.

The Supreme Court on Thursday said the law does not sanction the concept of a woman’s religion getting merged with her husband’s faith after an inter-religion marriage.

A five-judge Constitution Bench headed by Chief Justice Dipak Misra was dealing a legal question whether a Parsi woman loses her religious identity if she marries a man from a different religion.

The bench, also comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, asked senior advocate Gopal Subramanium, representing the ‘Valsad Parsi Trust’, to take instruction and apprise it on December 14 as to whether it can allow Goolrokh M Gupta, a Parsi woman who had married a Hindu, to attend the last rites of her parents.

Gupta has challenged the customary law, upheld by the Gujarat High Court in 2010, that a Parsi woman marrying a Hindu loses her religious rights in the Parsi community and hence, loses the right to visit the ‘Tower of Silence’ in the event of her father’s death to perform the last rites.

“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,” the bench said.

Senior advocate Indira Jaising, appearing for the woman, 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.

“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.

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.

The bench said it was only the woman who can decide about 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.

At the fag end of the hearing, the bench said the short issue was whether a woman can be allowed to visit and pay respect to her parents after death and asked Subramanium to seek instruction from the Parsi trust and apprise it on December 14, the next date of hearing.

On October 9, the apex court had referred to to a five-judge constitution bench the legal question whether a Parsi woman loses her religious identity after marrying a man of different religion.

The bench was hearing a plea filed by Gupta challenging the High Court judgement holding that a Parsi woman is deemed to have converted to Hinduism after she marries a Hindu man.

The woman, in her appeal filed in 2012, said she had married a Hindu under the Special Marriage Act and should be allowed to retain her place in Parsi community. She had assailed the high court finding that a woman universally loses her paternal identity just because of her marriage with a man practising the Hindu religion.

She had also sought the right to visit the ‘Tower of Silence’ in the event of her father’s death to perform last rites.

The Tower is used for funerary purposes by the adherents of the Zoroastrian faith, in which the traditional practice for disposal of the dead involves the exposure of the corpse to the sun and vultures.

The High Court had also held 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 had approached the high court contending that even after her marriage with a Hindu man, she has continued to follow Zoroastrian religion and thus had the right to enjoy all privileges under the Parsi religion, including right to offer prayers at Agiari, a Parsi temple having the ‘holy fire’ and the ‘Tower of Silence’.

She contended that her rights as a Parsi Zoroastrian cannot be denied on the ground that she has married a non-Parsi man. She had also argued that a male Parsi Zoroastrian continued to enjoy all rights available to a born Parsi, even if he is married to a non-Parsi Zoroastrian woman.

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  1. S
    Suneet Sood
    Dec 8, 2017 at 4:34 am
    A Hindu man marrying a Parsi woman. Is he committing love jihad?
    1. Michael Frank
      Dec 8, 2017 at 3:10 am
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      1. Ramakrishna Tumuluri
        Dec 7, 2017 at 10:37 pm
        1. Mangal May Gupta
          Dec 7, 2017 at 10:07 pm
          This is the issue which makes hindus SUFFER at the hands of LAW MAKERS COPYING SOME FOREIGN LAWS! HINDUS BELIEVE IN RITUALS LAID BY SHASTRAS , WHY? Because 'shastras'are GOD'S SPOKEN WORDS THEY BELIEVE AND FOLLOWING SHASTRAS THEY FIND THE PATH OF SALVATION (freeing from the cycles of births and rebirths).AND LAWS ARE TAKING THEM AWAY from the goal of life ( money/house. women etc earthly things are not goals of life though those are required for living )? It reveals THE NEGLIGENCE TOWARDS HINDUS BY RULERS WHOSE PRIN L WAS J L NEHRU who master minded all affairs of indians after 1947!'HINDU MARRIAGE ACT 1955'IS JUST AN EXAMPLE!All these have happened because the country was led ón secular principle'!SO?ARE HINDUS NOT DEPRIVED OF THEIR LEGITIMATE CLAIMS?SHOULD THESE NOT BE RECTIFIED? AND? SECULARISM IS A FAILED MATTER IN GLOBE AND ALL COUNTRIES ARE NOT HAPPY WITH 'SECULARISM'! In short the denials towards hindus need be stopped and shastric cultures started
          1. dipanwita chakravarty
            Dec 7, 2017 at 10:40 pm
            Who is stopping you from following ur faith? Just make sure that it should not create obstruction to others who believe differently. This article was about a woman’s right to continue to live her life according to her religious beliefs and is allowed to perform her fathers last right! But unfortunately u, like many others, needlessly made this an issue that is causing all the troubles in the world. BTW I hope you are following all the teachings and will get moksha!! Though I r still busy with worldly moh maya!!!! Raise above all these issues then maybe u will get salvation 😇
            1. B
              Dec 7, 2017 at 10:55 pm
              All bongs are Bangladeshi. they have no love for Hindus or India
              1. dipanwita chakravarty
                Dec 8, 2017 at 1:45 pm
                Mr. Bhimsen’ji’!! I believe ur comment is meant for me as it’s evident from my name that I’m a proud Indian who happens to be a Bengali born in the capital of the country!!! I can’t even pity u for your ignorance! And I definitely don’t need your approval in order to prove my nationality or my allegiance to my motherland😏. BTW a person with ur intellect should know that the surname Chakravorty is not prevalent only in Bengal!! And it’s a ‘Hindu’ surname and that too ‘brahmin’ caste (though honestly I don’t give a about this fact) Hopefully almighty will look at your way and give u some wisdom😇😇
              2. S
                Dec 8, 2017 at 7:00 pm
                Sounds very close to ISIS aims of "Sharia" Culture! You planning on venturing there? 1. What makes your "belief" superior than anyone else's? As a Hindu, if I don't live n die for Shastras, who's to say that I can't be a Hindu? Why can't I analyze things and decide to apply foreign principles to domestic conditions? Do you not drink Tea, sit on benches, wear trousers, Eat in plates with spoons? Are these not foreign influences? Are they bad just because they are foreign? 2. What legitimate claims? The whole idea that all Hindus are 1 and only Muslims (Or Gandhi family) is COMPLETELY FLAWED. there's no base to it. I can introduce you to many Hindus who question Old traditions. Then, who has "Snatched away" our rights? No one has, it's a cycle of progress. We see, amend ourselves. Otherwise, you want widows to be burnt? Minor girls married? Dalits flogged? All these were practiced earlier. BTW Shouldn't women n Dalits come to claim their legitimate rights?
              3. M
                Dec 7, 2017 at 8:48 pm
                What Is wrong with our country 😡😡😡😡😡😡 is she not allowed to visit her father’s funeral??
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