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Wednesday, December 11, 2019

Explained: The three cases SC wants clubbed with Sabarimala review

'It is our considered view that the pending cases regarding entry of Muslim Women in Durgah/Mosque, of Parsi Women married to a non-Parsi in the Agyari, and the practice of female genital mutilation in Dawoodi Bohra community may be overlapping and covered by the judgment under review.'

By: Explained Desk | New Delhi | Updated: November 16, 2019 9:40:28 am
sabarimala, sabarimala review plea, sabarimala women entry, female genital mutilation, entry of parsi women, dawoodi bohra community, women entry in temple, sc sabarimala case, cji ranjan gogoi, express explained The majority suggested that these cases be clubbed with Sabarimala when the review plea is taken up be a larger Bench at a future date.

In the majority opinion in the Sabarimala review plea, Chief Justice of India Ranjan Gogoi (who wrote the opinion on behalf of himself and Justices A M Khanwilkar and Indu Malhotra), mentioned three other cases pending in the Supreme Court, which were, like Sabarimala, broadly related to the rights of women in the sphere of religion.

The majority suggested that these cases be clubbed with Sabarimala when the review plea is taken up be a larger Bench at a future date.

The majority said: “It is our considered view that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque (being Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/2012); and including the practice of female genital mutilation in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out.”

What are these three cases that the verdict has referred to?

Muslim women’s entry into mosques and dargahs

In April 2019, a Pune woman, Yasmeen Zuber Ahmad Peerzade, and her husband, Zuber Ahmad Nazir Ahmad Peerzade, moved the Supreme Court seeking directions to the governments and Muslim bodies to allow Muslim women to enter mosques through the main door, and to have the “Islamic right to visual and auditory access to the ‘musalla’ (main prayer area)”.

The petition contended that “there is nothing in the Quran and the Hadith that requires gender segregation” and added that “the act of prohibition of females from entering Mosque is void and unconstitutional as such practices are not only repugnant to the basic dignity of a woman as an individual but also violative of the fundamental rights guaranteed under Articles 14, 15, 21 and 25 of the Constitution”.

The petitioners argued that “the alleged act of prohibition of entry to mosque is violation of constitutional and fundamental right guaranteed under the Constitution as there cannot be any discrimination based on caste, sex and religion”.

The matter was last heard on November 5, fewer than 10 days before the Sabarimala review judgment, by a Bench comprising CJI-designate Justice S A Bobde and Justices S Abdul Nazeer and Krishna Murari.

On that day, the Bench adjourned the hearing for 10 days, but did not give any reason for doing so.

Female genital mutilation among Dawoodi Bohras

On September 24, 2018, a Bench of then CJI Dipak Misra and Justices Khanwilkar and D Y Chandrachud referred the matter in ‘Sunita Tiwari vs Union of India and Ors’ to a larger Bench of the Supreme Court.

The petition, filed under Article 32 of the Constitution, had questioned the constitutionality of the practice of female genital mutilation (FGM) or ‘khatna’, or female circumcision (FC) or ‘khafd’, which the petitioner said was carried out on every girl child in the Dawoodi Bohra community.

The “archaic ritual” of FGM, the petition argued, was carried out without any scientific medical reason, and without any reference in the Quran, and inflicted “atrocity, bodily pain, inhumanness, and mental torture” on innocent girls and women, the burden of which they were forced to carry for the rest of their lives.

The petition relied on the UN Convention on the Rights of the Child and the Universal Declaration of Human Rights, and urged that the practice is violative of Article 21 (right to life and personal liberty).

It contended that FGM should be regarded as an offence under the Indian Penal Code.

A counter affidavit was filed resisting the stand of the petitioner, which submitted that the practice was almost 1,400 years old, and that it was an integral part of the religion of the Dawoodi Bohra community — and therefore, protected under Article 26 of the Constitution (right of religious groups to manage their own affairs).

Both Abhishek Manu Singhvi, counsel for the contesting respondent, and K K Venugopal, Attorney General of India, submitted that the matter should be referred to a larger Bench, which the court accepted.

Entry of Parsi women married to non-Parsis in the Agyari

The Special Leave Petition in ‘Goolrukh Gupta vs Burjur Pardiwala’ arose out of a judgment passed by the Gujarat High Court in 2012.

The HC had upheld the Valsad Parsi Anjuman’s right to stop a Parsi woman from visiting the Tower of Silence to perform her father’s last rites in the event of his death.

The HC upheld the Parsi Anjuman’s contention that having married a non-Parsi under The Special Marriage Act, 1954, a woman was no longer a Parsi, and was instead deemed to have become Hindu.

The petitioner was Goolrukh Contractor Gupta, who had moved the High Court in 2010 after her friend Dilbar Valvi who too, like her, was a Parsi married to a Hindu, was denied entry to the Tower of Silence during Valvi’s mother’s last rites some years previously.

In the Supreme Court, Indira Jaising, counsel for Goolrukh Gupta, argued that the question was, “in the case of marriage between an Hindu and Parsi, does it result in automatic conversion of religion?” The matter “raised issues of gender justice”, Jaising said.

In December 2017, a Constitution Bench of then CJI Dipak Misra and Justices A K Sikri, Khanwilkar, Chandrachud, and Ashok Bhushan observed that “DNA does not evaporate” after marrying outside one’s religion”, and that by marrying outside her religion, a woman does not “surrender her affection to her father”. Marrying under the Special Marriage Act was “only for the retention of original identity” the court said.

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