Chance For True Gender Equality: Will SC Seize the Moment?
Supreme Court.
Supreme Court.(Photo: Reuters)

Chance For True Gender Equality: Will SC Seize the Moment?

On 9 October 2017, the Supreme Court referred to a Constitution Bench the question of whether a Parsi woman can keep her religious identity intact and alive after marrying someone from another faith under the Special Marriage Act.

In Kerala, Hadiya (who voluntarily changed her religion to marry) and her husband Shafin Jahan’s marriage was annulled by an order of the High Court due to fears of systematic conversion and for protecting her natural religion. But a few years ago and a few miles northwest, another woman was fighting to safeguard her natural religious identity – this time to prove that because of marriage alone, her religious identity did not change. The Gujarat High Court, however, did not agree and confined her religious status to that of her husband’s.

An entire gulf of difference between the two cases, but one thing is common, a woman’s choice and her self-identity being treated merely secondary to larger religious and cultural dogmas.

The Petitioner Goolrukh, a Parsi Zoroastrian, married a Hindu man in 1991 under the Act and claims to have continued practising Zoroastrianism. She cited an example of another Zoroastrian woman, who was denied the right to attend the last rites of her mother at the ‘Tower of Silence’ solely because she had married a Hindu by the trustees of the Valsad Parsi Anjuman Trust.

Goolrukh filed a petition for an appropriate direction in this regard since she feared she’d meet a similar fate, but this petition and the Gujarat High Court’s judgment in 2012 opened a Pandora’s box of issues instead, relating to the historic dilemma between religion and women’s rights as well as subjugated position of women after marriage under the law.

Also Read: Kerala Love Jihad Case: Akhila’s Journey to Becoming Hadiya

Faulty Rationale

A common-law Blackstonian doctrine states that the legal existence of the woman is suspended during marriage or at least consolidated or incorporated into that of the husband.

Even though the Special Marriages Act was enacted as a special legislation providing for a special form of marriage by registration that does not require either party to the marriage to renounce his/her religion, the majority bench of the Gujarat High Court held that the Petitioner ceased to be a Parsi by marriage to a non-Zoroastrian. To come to this conclusion, the learned judges applied the doctrine of coverture or merger of personality, a common-law Blackstonian doctrine that states that the legal existence of the woman is suspended during marriage or at least consolidated or incorporated into that of the husband. In other words, woman's legal rights and obligations were subsumed by those of her husband on marrying him.

Today, this principle marital status law is deemed notorious and is an evidence of feudal and patriarchal traditions once enshrined in the common law. Symbolically, it manifests in the cultural belief that wives should be subservient to their husbands and should not have an individual identity.

The High Court observed that when marriage takes place between persons belonging to different religions, it is presumed that after marriage the woman has merged into the religion of her husband and that will be the identity of the family originating from the marriage. In a way, the Court implies that this merging of the woman’s identity into the husband’s is imperative so that a singular identity is extended to the children born out of that marriage.

According to the Court, same situation would remain in normal circumstances even for the man and woman who have married under the Special Marriage Act. This is a dangerous proposition that has no basis in law whatsoever. Children born out of interfaith marriages acquire neither parent’s religion. Rather, the child’s religion is determined by a factual inquiry into the manner in which or the religion in which the child is brought up.

In 1984, the Delhi High Court in the case of Menaka Gandhi v. Indira Gandhi (and another) found that Sanjay Gandhi had acquired Hindu religion (that of the mother) and not Zoroastrianism (that of the father), on the basis of the evidence placed on record.

Outright Discrimination

According to this doctrine, since after marriage a woman’s legal existence is wiped away, it necessarily leads to a civil death.

Justice Black of the US Supreme Court once opined that “(the doctrine is based on) the old common-law fiction that the husband and wife are one...which has worked out in reality to mean...the one is the husband.”

This doctrine does not envision a loss of identity (religious or otherwise) for the husband but only for the wife, and thereby not only offends equality principles of the Constitution but even international commitments under the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and Convention on the Elimination of Discrimination Against Women that ensure equal rights to both men and women for marriage, both during marriage and at its dissolution.

Due to its lopsided nature, the doctrine has been abolished in course of jurisdictions since its origin through legislations that institutionalised the autonomy of a woman in marriage.

In the United Kingdom, with the passage of the 1870 Married Women’s Property Act, the 1882 Married Women’s Property Act, and the 1918 Representation of the People Act, some degree of equality between partners to a marriage have been brought in.

In the United States too, coverture is usually treated as a legal relic since through the mid-nineteenth century, almost each state adopted a version of the Married Women's Act in an effort to eliminate the detriments of coverture.

In India, even though legislations have removed legal disabilities to a wife’s ownership of property, capacity to contract and even establishes her sole right on ‘stridhan’, the question of religious identity of a married woman has not been addressed.

Also Read: Here’s Why NIA Demanded the SC Let it Probe ‘Love Jihad’ in Kerala

Perennial Religious Barriers For Women’s Rights

The Constitution features an inevitable conflict between fundamental rights and religious or personal laws, and the reformative demands of women for equality inevitably bring these two in direct conflict.

But the question is what happens when the woman is trying to enforce her own right to practice her religion under Article 25? As with Sabarimala and Haji Ali cases, the Court’s considerations first inevitably go into establishing what are the rights of the religious denomination first and what is integral to it, and only if it appears that the practice conveniently falls outside the realm of religion is when it can be challenged on grounds of equality. A woman can practice her own religion within the diktats of that religion no matter how far they infringe on her constitutional guarantees, giving religious laws an inevitably superior place vis-à- vis individual freedoms.

In Goolrukh’s case, the Court must be driven by the fact that Article 26 while giving the right to religious denominations to manage their own affairs, also circumscribed the right with considerations of morality.

The only reasonable way to understand ‘morality’ is to view it in terms of constitutional morality, which not only implies adherence to the provisions but the spirit and overall objectives of the Constitution.

It is hard to fathom that the right to equality (Article 14) and the right against discrimination (Article 15) along with the vast jurisprudence created out of equality principles do not create a popular constitutional morality against arbitrary discrimination.

As per the Gujarat High Court’s judgment, the present position of law is that if Parsi women marry outside their community, they lose their right to the home in a Parsi baug. They can never enter a Fire Temple, and the children born out of such an alliance can't avail benefits of Parsi trust. Either the Court believes that a practice is essential and thus refrains from inquiring into its discriminatory effects, or it can order that a practice that is discriminatory and arbitrary can't find validity even if essential. It’s unfortunate that the former choice is taken quite often.

The Apex Court has the potential to make a breakthrough in gender jurisprudence by abolishing coverture in all its aspects and set a meaningful precedent by holding that no matter how essential, practices that are blatantly discriminatory cannot find constitutional validity. What choice would it make?

Also Read: Supreme Court Asks the Wrong Questions in Kerala ‘Love Jihad’ Case

(The writer is a commerce graduate, pursuing LLB at the University of Delhi. He can be reached on twitter @vrm_abhinav. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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