A Special Leave Petition (SLP) has been filed in the Supreme Court challenging the Gujarat High Court’s controversial ruling that a woman who enters into wedlock, even under The Special Marriage Act, 1954, outside her religion is deemed to have changed her religion to that of her husband thereby losing the right to practice her own religion.
The petitioner Goolrokh M Gupta has challenged the majority opinion in Goolrokh M Gupta, Maiden Name Goolrokh A Contractor v. Burjor Pardiwala, President & 8 Ors. (SCA 449/2010) delivered by the Gujarat High Court on March 23, 2012.
Goolrokh, a Parsi Zoroastrian, married a Hindu man in 1991 under The Special Marriage Act, 1954 (Act). After the marriage, she continued practicing the Zoroastrian religion. In her petition, Goolrokh then cites the example of one Dilbar Valvi, a Parsi Zoroastrian woman who married a Hindu. Due to this marriage, Dilbar Valvi was denied the right to attend the funeral ceremonies of her mother at the “Tower of Silence” Fire temple by the trustees of Valsad Parsi Anjuman Trust (Respondents). The Respondents denied this on the ground that Valvi had married outside her religion. Goolrokh then filed a writ in Gujarat High Court under Article 226 of the Constitution; her contention that she would also meet the same fate unless there was an appropriate direction in this regard.
Goolrokh had, therefore, asked the High Court for directions to the Respondents to allow her to enter and worship in the Fire Temple and to participate in the funeral ceremonies at the Tower of Silence of her old parents.
The High Court ruled that the petitioner ceased to be a Parsi Zoroastrian on account of her marriage to a non Parsi (even though she married under the Act) and, consequently, her prayers on the basis of her status as a Parsi Zoroastrian did not require consideration.
This verdict has been challenged on the ground that the,
“The Special Marriage Act, 1954 was enacted as a special legislation to provide for a special form of marriage by registration which does not require either party to the marriage to renounce his/ her religion”.
The petitioner has contended that the decision of the Gujarat High is in violation of the fundamental rights guaranteed under Articles 14, 15, 21 and 25 of the Constitution. She has also submitted that Section 4 of the Act, which lays down conditions for solemnization of marriage between a man and a woman,
“Has been made to enable two persons belonging to two different religions to solemnize their marriage without either of them renouncing his/ her religion or converting into the religion of the to-be spouse”.
Goolrokh has, therefore, challenged the proposition of the Gujarat High Court that the wife would automatically acquire the religion of her husband on marriage alleging that it amounted to the denial of the fundamental right of the woman to freely profess and practice her religion as guaranteed under Article 25 of the Constitution.
Alleging that the interpretation of the High Court tantamount to relegating “women to the class of cattle” she has also contended that the
“feudal concept that a woman loses her legal identity on marriage, and it merges with the identity of her husband, is no longer acceptable today.”
Besides praying for appropriate orders, she has also sought for staying the operation of the Gujarat High Court judgment as interim relief and to allow her to attend all religious ceremonies at the Fire Temple as well as the Tower of Silence.
Shiraz Patodia, Senior Partner at Dua Associates, is working on the case on a pro bono basis along with Senior Counsels Harish Salve and Abhishek Manu Singhvi. She told Bar & Bench that,
“The recent judgment rendered by the High Court is to say the least, a misogynistic approach towards the women of India. The Court held that even if a woman marries under The Special Marriage Act, 1954, i.e. – a statute enacted as a progressive legislation enabling two persons belonging to different religious faiths to enter into marriage without either having to renounce their respective religion, she loses her independent, personal religious identity by the mere fact of marriage.
Upon her marriage to a person of a different religious faith, the Court held, the woman is automatically deemed to have converted to the faith of her husband. This is nothing but reducing a woman to a mere chattel and defeating the legislative intent of the Special Marriage Act 1954.
It is common knowledge that cases of rape, eve-teasing, domestic violence etc., have steadily been rising in India by the day. The fact that the problem continues unabated leaves one with the sense that there is something more acute at play – something that questions the very treatment that we give to our women – fraught with a misogynistic and discriminatory approach. As a woman I am extremely anguished and saddened by the approach taken by the Gujarat High Court.”
The matter is listed for hearing on February 13, 2014.
This is not the first time that High Courts have come under scanner for apparently prejudiced views against women. Karnataka High Court Judge Justice K Bhaktavatsala had come under sharp criticism for his remarks in the open Court that a wife has to adjust to her husband’s beatings and that women suffer in all marriages. He was subsequently taken off from family cases. In a country which is infamous for the skewed approach of the police machinery towards complaints by women, the judiciary as a very significant cog in the wheel is expected to set an example.
A copy of the Gujarat High Court judgment is given below.