The Supreme Court today referred to a five-judge constitution bench the legal question whether a Parsi woman loses her religious identity after marrying a man of different religion under the Special Marriage Act. A bench headed by Chief Justice Dipak Misra said the larger bench would also consider the scope and width of the ‘triple talaq’ verdict in the present case.
A woman has challenged the Parsi law, upheld by the Gujarat High Court in 2010, that a Parsi female marrying a Hindu loses her religious rights in the Parsi community. “We are referring it to five-judge constitution bench,” the bench, which also comprised Justices A M Khanwilkar and D Y Chandrachud, said.
The decision came after senior lawyer Indira Jaising, appearing for Goolrokh M Gupta, said that ‘the doctrine of custom’, that a woman automatically assumes the religion of her husband, no more held good. The bench was hearing a plea filed by Gupta challenging the High Court judgement that had held that under the Special Marriage Act, a Parsi woman is deemed to be converted to Hinduism after she married a Hindu man.
The woman, in her appeal filed in 2012, said she had married a Hindu under the Special Marriage Act and be allowed to retain her place in Parsi community. She had assailed the HC 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.