A matter of faith

An important ruling strengthens women's rights

In the melee over the Gujarat election campaign, a critical judgment by the Supreme Court went mostly unnoticed in the public discourse. The essence of the judgment is that no law sanctions that the religion of a woman must merge with that of her husband’s after marriage. This ruling has far-reaching implications for both women’s rights and the much-maligned value of secularism embedded in the founding principles of the Indian republic. It offers Indian women the right to choice and, by extension, an independent status in marriage. As importantly, it confirms the pre-eminence of civil law over the personal law of various religious denominations, a principle that Parliament under Rajiv Gandhi weakened, with lasting damage to India’s secular fabric.

 

The judgment in question flowed from a petition by a Parsi woman, Goolrokh M Gupta, for the right to enter the fire temple and the tower of silence, the traditional Zoroastrian funeral site, to attend the last rites of her father. As with many other religions, Parsi customary law decrees that a woman who marries outside her community forfeits the religion of her birth. Ms Gupta was married to a Hindu and had challenged this tenet of customary law that had been upheld by the Gujarat High Court in 2010. It is worth noting that this excommunication does not apply to a Parsi man who marries outside the community. Religion tends to be inherently gender biased, so this privilege is also accorded to Hindu and Muslim men who marry outside their faith. It may be recalled that in 1984, Indira Gandhi, a practising Hindu, was famously barred entry to the Jagannath temple in Puri, Odisha, because she had married a Parsi, Feroze Gandhi, and, therefore, was no longer considered a Hindu.

 

The five-judge bench headed by the Chief Justice of India made two important points; one that restated a broad principle of gender equity and another that underlined the criticality of the legal statute. First, it established that only a woman can decide her religious identity by exercising the right to choice. Second, and no less importantly, the presumption that a woman changes her religion according to her husband’s faith does not exist if the marriage is solemnised under the Special Marriage Act, as Ms Gupta’s wedding was in 2012. Indeed, the bench chose to highlight the point that the Special Marriage Act was enacted in 1954 precisely to enable both parties to retain their religious identities — unless the wife denounces her religion and converts to the religion of her husband. Civil law, the court implied, was blind to all religions. 

 

It goes to the credit of the administrators of the Paris Anjuman Trust of Valsad that they acceded to the spirit of the judgment and provided the apex court an undertaking that they would extend the right of entry to Ms Gupta. This breaking of a glass ceiling within the Parsi community may well be ignored in the wider universe of Indian public opinion because it involves the religious rights of one of India’s shrinking minority communities. But this judgment has created an important and universally applicable precedent. By asserting that a woman enjoys a fundamental right as set out in Article 19 of the Constitution, it precludes the kind of societal pressures that have been intensifying within India’s increasingly polarised polity, for Hindu women marrying Muslim men to convert or for Muslim women marrying Hindu men to repudiate the religion of their birth. In the light of this judgment, the court may have made a good case for repudiation also of the investigation into the conversion by K M Akhila/Hadiya of Kottayam to Islam and marrying a Muslim.