“… In regard to matters of religion, the right of management to a religious body, is a guaranteed fundamental right, which no legislature can take away.”
Ratilal Panachand Gandhi v. State of Bombay[1]
Introduction
In a recent case, the following interesting issue came up before the Hon’ble Supreme Court[2]:
Can a Parsi woman marrying a Hindu, continue to enjoy her religious rights as a Zoroastrian Parsi even after her marriage?
The issue arose out of a Gujarat High Court judgment in Goolrokh M. Gupta v. Burjor Pardiwala[3], wherein it was observed by the Hon’ble High Court, that the religious identity of the woman in such a case will merge into that of her husband. On an appeal, the Supreme Court felt that this is an important issue involving constitutional principles, and accordingly referred the matter to a five-Judge Bench[4].
Parsis
The Parsis who originally belonged to Persia (present Iran), migrated en masse to India in the eighth century, to escape from religious persecution by the Arabs who invaded Persia. More than 80% of Parsis live in India and, their number has been dwindling fast. According to 2011 Census, their population in India was 57,264, a drop of 18% from the figure of 69,600 in 2001. Their birth rate is lower than the death rate and, their numbers have, therefore been steadily falling.
Their religion does not permit conversion. The only way to be a Parsi is to be born of a Parsi father. According to their custom, children born of Parsi men and non-Parsi women can be a Parsi but, if a Parsi woman marries outside her religion, her children cannot be Zoroastrian Parsi. They believe in maintaining the purity of their religion, by adhering to the male lineage of the Zoroastrians. A 2002 study of the Y chromosome (patrilineal) DNA of Parsis, showed that Parsis are genetically closer to Iranians than to their neighbours.
Various courts in India, on many occasions, considered the question as to what are the requirements, to be called Parsis. In one of the earliest decisions i.e. Dinsha Manekji Petit v. Jamsetji Jijibhai[5], it was ruled by the Hon’ble Bombay High Court, that both parents should be Parsis or at least the father should be a Parsi.
The above decision was overturned several times subsequently e.g. Jamshed A. Irani v. Banu J. Irani[6]. In spite of the later decisions, the opinion that the 1909 ruling is still binding, continues to persist among the Zoroastrian Parsis.
Gujarat High Court judgment
The Hon’ble Gujarat High Court in its judgment dated in Goolrokh M. Gupta v Burjor Pardiwalia[7] in para 27, has observed that “when the marriage takes place between a male and a female belonging to different religion, it should be presumed and considered that the woman, after marriage, has merged into the religion of the husband”. The Hon’ble Court cited the principle of “coverture” adopted by the British courts but, could not refer to any legal authority in support of such a doctrine. It may also be pointed out, that the principle of “coverture” which was peculiar to the British common law, has been dropped after the enactment of the Married Women’s Property Act, and is no longer part of the common law. In USA, this principle has been declared as unconstitutional[8].
However, the petition was dismissed not based on the above remarks, but, because the petitioner failed to make a declaration before a competent court, for continuation of her status as a Parsi Zoroastrian after marriage. According to the court, if she had done so and, the court after undertaking a full-fledged fact-finding inquiry, on the aspects as to whether after marriage, she has totally abjured Hinduism, the community to which her husband belongs and, she has continued to remain as Parsi Zoroastrian, it would have supported her position.
It may be seen that the observations of the High Court to the effect that a woman, on marriage, is automatically absorbed into the religion of her husband, can only be taken as “obiter”, as these observations have nothing to do with the final decision of the court. At worst, there can be a rebuttable presumption, that a woman, on marriage, has adopted the religion of her husband.
Even after such a declaration by a woman, and its acceptance by the competent court, the question still remains as to whether the Parsi community is bound to act on such declaration and, allow her to all the rights of their religion, which are purely of religious nature. This question involves the interpretation of many constitutional principles and, will be dealt with a little later.
Statutory consequences of inter-religious marriages
It may be hard to believe that some statutes themselves, lay down certain adverse consequences, arising out of inter-religious marriages. Some of the instances are given below:
(i) Section 13 of the Hindu Marriage Act, 1955, lays down that one of the grounds for a decree of divorce could be “if either of the spouses ceased to be a Hindu by conversion to another religion”. This is an option available, but, the very option indicates that there could be some consequence in such cases.
(ii) Section 32(i) of the Parsi Marriage and Divorce Act, 1936 (as amended) also carries a similar provision.
(iii) Section 19 of the Special Marriage Act, 1954 reads as follows:
The marriage solemnised under this Act of any member of an undivided family, who professes the Hindu, Buddhist, Sikh or Jain religions shall be deemed to effect his severance from such family.
The object of this provision is to deprive such members of their right to coparcenership benefits of the Hindu Undivided Family.
(iv) Section 18 of the Special Marriage Act, 1954 provides, that in the case of inter-religious marriages, only their children born after the registration of the marriage under this act, shall be treated as legitimate children. It also provides, that such children born of inter-religious marriages, shall be entitled to succession only to the properties of their parents but, not for a share in the ancestral property.
These provisions relate to what are considered in law as secular matters, such as marriage, divorce and succession. Nevertheless, it is significant that even in such secular matters, the law provides for certain disabilities, arising out of inter-religious marriages.
Constitutional provisions
(i) Right to equality
One of the grounds raised by the appellants before the Supreme Court in this case was, that the denial of religious rights to only women of the Parsi community, on marrying outside their religion, contravenes the right to equality guaranteed under the Constitution. Before going into a detailed discussion on this issue, it would be interesting to find out what exactly do Articles 14 and 15 provide for.
The “right to equality” is one of the most misunderstood concepts in law. The Constitution merely states that there shall be equality in respect of certain matters specified in Articles 14 and 15. In fact Article 14 has only one sentence reading as follows:
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Several hundreds of cases have been decided by the Hon’ble Supreme Court, dealing with the scope of this article. In Shri Sitaram Sugar Co. Ltd. v. Union of India[9], the Hon’ble Court made the following observations:
An act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge, if it is in conflict with the Constitution or the general principles of the law of the land, or it is so arbitrary or unreasonable, that no fair-minded authority, could ever have made it.
In essence, what it means is that the government, or its instrumentalities cannot act arbitrarily, in any matter before it. In fact, if we go through the cart load of cases decided under Article 14, it would be crystal clear that it deals only with the acts of the State and its instrumentalities and, not with non-State organisations or individuals.
(ii) Article 15.—Discrimination on account of religion, etc.
Article 15 prohibits discrimination by the State on grounds only of religion, race, caste, sex or place of birth. Clause (2) which is more specific, reads as follows:
No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition, with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.
This provision does not deal with places of worship, whether temples, churches or mosques, which will be governed by the religious doctrines and the State cannot interfere on matters, which are purely religious in nature. This aspect will be considered in more detail under Articles 25 and 26.
(iii) Right to freedom of religion
Article 25 confers the right to freely profess, practice and propagate religion. A catena of judgments rendered by the Hon’ble Supreme Court, makes it clear that it protects the freedom to practice rituals, ceremonies, etc., which are integral parts of religion[10]. Clause 2(a) of this article, saves the power of the State to regulate or restrict secular aspects of religious practice and not with the essentials of religion, as may be seen from the following judgments:
(i) Ratilal Panachand Gandhi v. State of Bombay[11];
(ii) Seshammal v. State of T.N.[12];
(iii) Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami v. State of T.N.[13]; and
(iv) Sardar Syedna Taher Saifuddin Saheb v. State of Bombay[14].
There were numerous judgments on this, but, the above shall serve as an illustrative list.
Article 25 shall be subject to:
(i) public order;
(ii) morality;
(iii) health; and
(iv) other provisions of Part 3 of the Constitution.
While Article 25 deals with individual religious rights, Article 26 deals with collective rights such as establishment, maintenance and management of institutions for religious and charitable purposes. Both Article 25 and 26 extend to rituals also, and are not confined to doctrines[15]. It is also to be noted that while Article 25 is subject to other provisions of Chapter III, Article 26 is not subject to such restrictions. This was taken note of in Acharya Maharajshri Narendra Prasad Anandprasadji Maharaj v. State of Gujaraj[16]. In Riju Prasad Sarma v. State of Assam[17] it was pointed by the Hon’ble Supreme Court, that religious customs, which are protected under Articles 25 and 26 are immune from challenge under other provisions of Part 3.
In a Full Bench division decision in Ratilal Panachand Gandhi v. State of Bombay[18], the Hon’ble Supreme Court made the following observations:
In regard to matters of religion, the right of management given to a religious body, is a guaranteed fundamental right, which no legislature can take away.
Terms like discrimination based on religion, gender, etc., which figure under Articles 14 and 15, do not find place under Articles 25 and 26. Such considerations which are not mentioned under these articles cannot be superimposed on them, by way of analogy. Further, the freedom under Article 25(2)(b) is subject to the overriding provisions of Article 26. Any restriction under Article 26 can only be in respect of “public order, morality and health” and nothing else.
Comments
(1) The constitutional provisions as interpreted by the Hon’ble Supreme Court in a catena of decisions, concerning freedom to practice religion, are clear, that there can be no State restrictions on the fundamental tenets of religions and, any restriction can be only in respect of the following aspects:
(a) “Public order, morality and health” (Articles 25 & 26).
(b) “Other provisions of Part 3” (only for Article 25).
(c) “Regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice” (Article 25)
(d) “Providing for social welfare and reform or the throwing open of Hindu Religious institutions of public character to all classes and sections of Hindus” (only Article 25 not applicable to non-Hindu religions).
Article 26(b) confers the right for religious institutions to manage their own affairs in matters of religion.
(2) It was pointed out by the Hon’ble Supreme Court in Adi Saiva Sivachariyargal Nala Sangam v. Govt. of T.N.[19] that religion is based on faith and deprived of faith religion means nothing. Further, it is not possible to measure religious beliefs, with contemporary rational/scientific scales.
(3) The main difficulty raised by the appellant in this case was that, if she is treated as a non-Parsi consequent on her marriage with a Hindu, she may not be allowed to participate in the funeral rites of her parents, when they pass away and, may not also be allowed into the Tower of Silence, to participate in their final rites. She has cited a similar instance, where such things happened. According to the Zoroastrian customs, no non-Parsi would be allowed to see the body after it is given a wash, and no non-Parsi would be allowed into the Fire temple or the Tower of Silence. These are customs followed from time immemorial and cannot be looked at from a purely rational or legal angle. The collective rights of the religious community to follow its religious customs, has to be weighed against the individual rights. Generally, collective rights override individual rights.
(4) Any person, who wants to follow his own faith, is free to do so in an individual capacity. However, to avail of the institutional facilities like temples, etc., she is required to follow their customs. A person, who does not want to follow all the customs of the religion to which she belongs, cannot be heard to say, that she would follow only some of the customs and not others. Religious faiths come as package deals and there are no “la carte” options, to pick and choose.
(5) It may be pointed out that Articles 14 & 15 are general provisions whereas Articles 25 & 26 are special provisions. As pointed out by the Hon’ble Supreme Court in State of U.P. v. Renusagar Power Co.[20], the approach in such cases will be to find out which of the two apparently conflicting provisions is more general and which is more specific and, to construe the more general one to exclude the one which is more specific. The same view is reflected in the legal maxim “generalia specialibus non derogant”.
(6) The main components of Zoroastrianism as practiced by the Parsi concepts are pollution, initiation (navjot), daily prayers, worship at Fire Temples, marriage and funerals. Their temples and Towers of Silence are maintained by their trusts called Anjumans, and are governed by strict regulations framed by the founders of these trusts.
(7) Parsi religion is probably the smallest one in the world. Although their number is small their service to the country of refuge was immense. The Constitution itself provides for saving the customs and practices if certain sections of people. Article 371?A provides that there shall be no Act of Parliament in respect of the religious and social practices of the Nagas (Nagaland) unless the Legislative Assembly of Nagaland so decides by a resolution. Similar provisions exist governing Mizos (Mizoram) vide Article 371?G. These are meant for the protection of some of the endangered classes of citizens.
Interim relief
When the matter came up before the Hon’ble Supreme Court in December 2017, the Court expressed its prima facie view that a woman retains her identity, including religious identity, even after she exercises her right to marry outside her community under the Special Marriage Act, 1954. At the instance of the Supreme Court, Valsad Parsi Anjuman Trust reconsidered the matter, and said that it would allow Golrokh M. Gupta, the appellant, to visit the Fire Temple and perform the final rites of her parents. These developments provide the relief prayed for by the appellant in this case. The substantial issues raised in the appeal, however, will be considered separately by the Supreme Court.
[2] Goolrokh M. Gupta v. Burjor Pardiwala, 2017 SCC OnLine SC 1275.
[3] 2012 SCC OnLine Guj 2058 : (2012) 2 GCD 1463.
[4] blog.scconline.com (9-10-2017).
[5] 1908 SCC OnLine Bom 37 : (1909) 11 Bom LR 85.
[6] 1960 SCC OnLine Bom 28 : (1966) 68 Bom LR 794.
[7] 2012 SCC OnLine Guj 2058 : (2012) 2 GCD 1463.
[8] Kirchberg v. Feenstra, 1981 SCC OnLine US SC 59 : 67 L Ed 2d 428 : 450 US 455 (1981).
[10] John Vallamattom v. Union of India, (2003) 6 SCC 611.
[11] AIR 1954 SC 388 : 1954 SCR 1055.
[13] (1972) 2 SCC 11 : AIR 1972 SC 1586.
[15] Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of U.P., (1997) 4 SCC 606.
