Marriage does not mortgage woman to man: Supreme Court

On Thursday, Chief Justice of India Dipak Misra observed that a woman does not mortgage herself to a man by marrying him. She retains her identity, including her religious identity, even after she exercises her right to marry outside her community under the Special Marriage Act.

The top court's observation came when a five-judge bench was hearing the matter of a Parsi woman who was barred from entering the Tower of Silence to offer prayers for her dead relatives because she married outside her faith.

"Special Marriage Act confers in her the right of choice. Her choice is sacred. I ask myself a question: Who can take away the religious identity of a woman? The answer is only a woman can choose to curtail her own identity," Chief Justice Misra said on the first day of the hearing.

Couples from different faiths who wish to retain their individual religious identities may opt for a marriage under the Special Marriage Act, 1954, which ensures religious protection.

Nobody can presume that a woman has changed her faith or religion just because she chose to change her name after marrying outside her community, the CJI observed.

The bench — also comprising Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan — then asked senior advocate Gopal Subramanium who is representing the Valsad Parsi Anjuman Trust whether it would allow petitioner Goolrukh Gupta time to respond by next week.

Should the trust respond in the negative, the court will then have to decide whether a Parsi woman can hold on to her religious identity if she chooses to marry someone outside her faith.

Prima facie, the top court observed that it did not adhere to the principle of merger relied upon by the Gujarat High Court in denying Gupta the right to practice her faith. Gupta has challenged the high court's order which essentially suggested that by the principle of merger, Gupta became a Hindu when she married one and thus ceased to be a Parsi.

Representing Gupta, Senior Advocate Indira Jaising sought the court's indulgence to treat this case as an endorsement of inter-faith marriages. Those who marry outside their faith should be saddled with any disabilities, she added. Government data suggests that the Special Marriages Act is not used as often as it should be, she said.

Every custom, usage, customary and statutory laws must stand the test of the Fundamental Rights principle, Jaising said. Article 372 (continuance of existing laws) of the Constitution is subject to Article 13, which mandates that laws should not violate the fundamental rights of an individual, she added.

Suggesting that excommunicating Parsi women for marrying outside the faith tantamount to gender discrimination, CJI Misra asked: "How can you (Parsi elders) distinguish between a man and woman singularly by a biological phenomenon… If a woman says she has not changed her religion, by what philosophy do you say that she cannot go to the Tower of Silence? No law debars a woman from retaining her religious identity."

"If a woman's identity is merged, then Special Marriage Act is not required, is it not?" Justice Sikri pointed out.

"The Tower of Silence is not a mutt or a citadel of a cult. It is a place to offer prayers to the dead. Can such a right of a woman be guillotined? It is part of her Constitutional identity," CJI Misra further observed.

The court's decision favouring the Parsi woman's right will create a paradigm shift for women within the minority community. Earlier this year, the top court recently ruled in favour of Muslim women by striking down instant triple talaq as unconstitutional.