Parsi Women Win the Right to Practice their Religion even on Marriage with a Non-Parsi

Aastha Tandon
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Aastha Tandon

Founder/ Designated Partner at Perennial Publication LLP & Consultant at Aceaero Consultants LLP
Aastha Tandon is a Legal Consultant and Entrepreneur apart from being a poet whose literary expression is found in her book 'A Maiden Attempt'. A lawyer by day and poet at heart she loves to read and write. Her work captures human emotions and weaves a fictional world around the user.
Aastha Tandon
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A Revolutionary Step Towards Parsi Religious Tolerance and Gender Equality in the Community

A Parsi Fire Temple

“If a believer demands that I, as a nonbeliever, observe his taboos in the public domain, he is not asking for my respect, but for my submission.”  ― Flemming Rose

The above quote is what we all need to understand as human beings in a society with orthodox religious practices that religious practices cannot be enforced, they need to be accepted.  Goolrukh Gupta’s case is an example of progress in the society with the religious heads accepting the need for change in a practice to keep its believers following its religion by accepting liberal change in its practices directed by the Apex Court of India.

This year the Supreme Court of India has delivered landmark judgments, from questioning the validity of the triple talak to establishing privacy as a fundamental right. But as we come to the close of 2017, the Supreme Court of India has had to answer a query related to another religious community – The Parsi Community. A 5-judge Constitution Bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan heard the plea of Ms. Goolrokh M Gupta on the matter of whether a Parsi woman, married to a Hindu under the Special Marriage Act in India, ceases to be of Parsi faith/religion and if she can be stopped from entering the Tower of Silence?

In simple words, it is a question of opposition between the Fundamental Rights under Part III of the Constitution of India and gender biased customary law followed under religious law. It is pertinent to note that the Parsi community is on the verge of extinction due to its strict customs and laws.

Gender equality in a patriarchal society is difficult to achieve, but it gets even more so when religious groups deny women and men the same rights within their community. The Calcutta High Court was asked to determine whether the children of a Parsi mother and a non-Parsi father could enter a Fire temple? This question is significant as the children of a Parsi Zoroastrian man married outside the community can become Parsi, but the same is not true for a child of a Parsi woman married to a non-Parsi; a clear indication of gender discrimination.

In the present case, Goolrukh Gupta is a Parsi, married to a non-Parsi. Upon her Parsi friend being denied the right to enter the Tower of Silence due to her friend’s marriage to a non-Parsi, she wrote to the Valsad Anjuman (Panchayat) challenging the right to enter the Fire temple and to be permitted to enter the Tower of Silence upon the death of her parents. She was however refused this right. The Gujrat High Court also ruled against her.

Prior to Parsi Panchayat Case of 1909, men too were denied permission to marry a non-Parsi.  However the editor of the community magazine Parsiana, Mr. Jehangir Patel said, “The judgment laid down by Judges Dinshaw Davar and Frank Beaman stated that a Parsi can only be so termed if he or she is born of a Parsi father.”  This change occurred due to a strong movement against an orthodox mindset and through the Goolrukh Gupta Case a similar move is being seen.

The Apex Court was asked to give its verdict on the arguments advanced that the right to practice a religion, by a Parsi woman, married outside of her faith is in violation of her fundamental right under Article 25 on one hand and on the other the Valsad Anjuman opposing on the basis of doctrine of merger of personality which states that a woman loses her identity and legal right with marriage. However, this doctrine is not applicable under the Indian Jurisdiction, permitting it shall lead to the violation of the right to association guaranteed under Article 19 and also a violation of Article 15 for discrimination between a Parsi man and woman when married to a non-Parsi respectively. Similarly, Senior Advocate Jaising challenged the contention regarding customary Parsi Law by presenting the argument that, “Law, for the purpose of Article 13, means statutory as well as customary. There cannot be said to be in practice any custom or usage within the Parsi community on the lines of the doctrine of merger. Also, for any such custom to be legally enforceable, it is necessary that it satisfies two-criteria-one, that it is ancient, unbroken and undisputed, and two, that it is in accordance with morality, decency and public policy.”

On hearing both parties, the Supreme Court held that as the Petitioner – Goolrukh Gupta was married under the Special Marriage Act, which is the voluntary uniform civil code of India, thus doctrine of merger was rejected. The Bench stated that both, husband and wife have separate identities under the law and cannot be treated with a single identity.  The Court also asked the Valsad Anjuman to reconsider its decision and permit petitioners who married outside the community to enter the ‘Tower of Silence’ when the time comes. Senior Advocate Gopal Subramanium, who appeared for the Parsi Panchayat, informed the Apex court that after consulting with the high priest of the Parsi community, the Valsad Anjuman has decided to allow both the women to attend the prayers in the Fire temple and also be present for the last rites of their loved ones in the ‘Tower of Silence.’

This is a landmark judgment and has moved a step closer towards gender equality. More than it being a question of law, this was a question of the progress of a community. The Parsi Community could have taken up arguments and standpoints to uphold its age-old practices and customs. However, the acceptance of the Supreme Court decision along with hearing the silent voices of the women in the community is a progressive step, which ideally should be adopted by all religious groups, regardless of the jurisdiction or country or religion that they belong to.

REFERENCES

  1. The Hindu: Mumbai, The conflict within: Parsis and gender rights, written by Jyoti Shelar on May 22, 2017, link checked on Dec 24, 2017,  
  2. The Constitution of India
  3. “the doctrine iterates that after marriage, the personality, including the identity and religion, of the wife merges with that of her husband” – LiveLaw, “Parsi Woman’s Identity Crisis: Prima Facie No Case For Accepting ‘Doctrine Of Merger Of Wife’s Religious Identity With That Of Husband’, Observes SC” BY: MEHAL JAIN DECEMBER 7, 2017 9:47 PM. 

  4. Livelaw, “Parsi Woman’s Identity Crisis: Prima Facie No Case For Accepting ‘Doctrine Of Merger Of Wife’s Religious Identity With That Of Husband’, Observes SC” BY: MEHAL JAIN DECEMBER 7, 2017 9:47 PM.

  5. The Economic Times, Parsi women married to non-Parsis can visit its places of worship: Supreme Court”  by Samanwaya Rautry, Dec 15, 2017, 12.58 AM IST

  6. The Times of India, “2 Parsi women wed to non-Parsis can attend last rites at ‘tower of silence’, says Valsad Parsi Panchayat”, Updated: Dec 14, 2017, 13:23 IST,

  7.  Scroll Staff, “Parsi woman who married outside community can enter tower of silence, panchayat tells Supreme Court” by Scroll Staff, Published on 14 Dec 2017, 05:08 pm.

About Aastha Tandon

Aastha Tandon is a Legal Consultant and Entrepreneur apart from being a poet whose literary expression is found in her book 'A Maiden Attempt'. A lawyer by day and poet at heart she loves to read and write. Her work captures human emotions and weaves a fictional world around the user.

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