Special Marriage Act: The interpretation and constitutional perspective
The Case of a Parsi Zoroastrian Woman
The Supreme Court of India has tackled a historic dilemma through the ages, which related to the conflict between personal/religious law such as laws of marriage and divorce, and Fundamental Rights under Part III of the Constitution of India in celebrated cases, be it Shah Bano, Narasa Appu Mali, and Haji Ali case.Other cases such as the Sabarimala case and the triple talaq case are pending decision. The demand for equality for women which is still in its formative phase, is questioning the orthodox and traditional religious notions of propriety and customs, bringing them into direct conflict with religious groups in India and the ruminants of personal law. The Hon’ble Supreme Court now faces an issue of Constitutional importance and gender equality concerning the matter of a Parsi Zoroastrian woman who has been barred from entering and, in the inevitable demise of her aged parents, performing their last rites and ceremonies, only due to the fact that she married a Hindu man under the Special Marriage Act of 1954.Central to the controversy, is the principal question of law namely whether or not a Parsi women who married a Hindu man under the Special Marriage Act is deemed to have become a Hindu by virtue of her marriage alone.
In 1872, the then British Government had enacted the Special Marriage Act 1872 providing for a form of marriage wherein the parties had to renounce their respective religions and enter in a secular marriage after completing with the formalities of the act. After attaining independence, and in light of the provisions of Constitution of India, it became imperative to enact a modern legislation for addressing inter-religious marriages, and establishing marriage as a secular institution bereft of all religions formalities, requiring registration alone. This was done specifically to encourage and facilitate inter-religious marriages.The Special Marriage Act of 1954 was enacted with the object of enabling persons of different religious persuasions to enter into a valid marriage without giving up their respective religions. Two persons belonging to the same faith could also marry under the Act. Marriage under the act becomes a secular institution and the domain of marriage is separated form religion entirely as long as the provisions of the Act are complied with.The basic requirement of the Act is a thirty-day notice given before the marriage is solemnized. These provisions have come with their own pitfalls enabling inter-meddlers to oppose the marriage on fundamentalist grounds. Be that as it may the Act has enabled many persons who wish to enter into inter-caste marriages often opposed by their parents, and inter-religious marriage to be performed.
The Petitioner before the High Court of Gujarat claimed a declaration that the Parsi woman was entitled to enter the Tower of Silence and to attend the funeral of her parents in the event of their demise at the Fire Temple. However, the Gujarat High Court held that a Parsi Zoroastrian woman marrying a Hindu man would be deemed to have become Hindu. It came to this conclusion on the basis of the common law “doctrine of merger” of legal personality of the wife with the husband upon marriage (including the religion of the husband) and held that by virtue of her marriage, she ceased to be a Zoroastrian and become a “deemed Hindu”.
The Petitioner, who was born a Parsi Zoroastrian and remains a devout Zoroastrian to this date, married a Hindu man under the Special Marriage Act of 1954 by complying with all necessary procedure under the Act.She changed her name when moving into her matrimonial home but continued professing Zoroastrianism throughout the time. However in her home in Valsad, Gujarat, since two Parsi Zoroastrian women who had similarly married Hindu men but did not convert to Hinduism, were denied the right to perform the last rites and ceremonies of their parents by the Valsad Parsi Trust;on the ground that they lost their religion(i.e. Zoroastrianism) after marriage. Apprehending that she would not be able to perform the last rites of her ageing parents in light of this conduct of the Trustees, she tried reasoning with the Trustees requesting them to allow her to perform the funeral ceremonies of her parents in the event of their death in the Dungerwadi and Agiary.The Trustees, however remained adamant on barring Parsi Zoroastrian females entering into inter-religious marriages from entering into Parsi institutions or participating in funeral rites. Consequently she was constrained to move the Gujarat High Court under Article 226 of the Constitution of India seeking a Writ, order or direction to the Trustees to allow her to perform funeral ceremonies of her parents in Valsad in the event of their death. The matter came to be listed before a 3-Judge Bench of the Hon’ble Court, which by a majority of 2:1 turned down her Writ Petition.
The majority judgment held that there is a “deemed conversion” in an inter-religious marriage for the woman and that therefore she ceased to be a Zoroastrian. The condition of the Trust was that only a Parsi and a Zoroastrian could enter the temple and according to the Trust, while she was a Parsi by ethnic origin, she was not a Zoroastrian and not entitled to the benefits of the trust which included running the fire temple and conducing funerals. The conclusion of the majority judgment was based on the flawed interpretation of Special Marriage Act, implicit adoption of the “doctrine of coverture” and an erroneous interpretation on the issue of how religion is acquired by an individual.
After examining the provisions of the Special Marriage Act, the High Court in its majority judgment observed that in the Special Marriage Act there is no express provision in the SMA protecting the religion of the woman hence there as a deemed conversion.
“…Parliament by express provisions has not provided that the status as per the religion or the rights consequent thereto shall continue even after the marriage and therefore, it can be said that the status of the person as per the birth belonging to a particular religion shall get and the rights consequent thereto are not protected by express provisions of the statute…”
The majority further noted that the English doctrine of coverture was never apart of Hindu Law, Muslim Law, Parsi Law or Jewish Law as in Indian law, women were regarded as feme sole; and noting so, in the same breath extinguished the independent legal identity of a woman in the following terms:
“…In all religion, be it Christian, be it Parsi, be it Jews, the religious identity of a woman unless specifically law is made by the Parliament or the legislature, as the case may be, as per the religions, shall merge into as that of the husband…
…It is hardly required to be stated that such principle is generally accepted throughout the world and therefore, until the marriage, after the name of the woman, the name of the father is being mentioned and after the marriage, name of husband is being mentioned for the purpose of further describing her identity…
…for the purposes of the present petition we are required to examine the rights as that of the woman in the context of family which originates from marriage of a husband and wife or in other words, such family in contradistinction to the society at large.”
The Court therefore distinguished the position of family as against“society at large” and reasoned that if the woman would not be deemed to have converted to the man’s religion on marriage, it would be difficult to ascertain the religion of the child in such marriages:
“…therefore we find it proper to observe that in normal circumstances, when the marriage takes place between a male and a female belonging to a different religion, it should be presumed and considered that the woman after marriage has merged into the religion of her husband and such will be the identity of their family originating from their marriage in comparison to the society at large and such identity would stand extended to their children too. Same situation would remain in normal circumstances even for the man and woman who have married under Special Marriage Act.”
The Petitioner contended that she had a right to continue her religion which was guaranteed by Article 25 of the constitution.In answer the majority judgment ruled that no evidence or material had been brought before Court by the Petitioner to prove that the right of a Parsi Zoroastrian woman entering into an inter-religious marriage - to entry and performance of last rites and ceremonies into an Agiary or Dungerwadi were part of essential and integral practices of the Zoroastrian religion.
Apart from citing no authority for the propositions as above since it was “hardly required to be stated”, there is no explanation why the husband did not change his religion to Parsi on the “deemed conversion” theory.That apart, the Court did not cite a host of judgments which held that the doctrine of coverture was abandoned in the country of its origin that is the United Kingdom.
The minority dissenting judgment however, appreciated the object of the Special Marriage Act and held that a Parsi Zoroastrian woman had not converted to religion of the husband due to the reason that the parties had married under the Special Marriage Act which allowed parties to retain their respective religions. The reasoning was based on the interpretation of Section 4 of the Act and the dissenting judgment observed therein:
“Therefore, Section 4 of the Act of 1954 makes a special provision also enabling such couples to solemnize the marriage while still retaining their respective religious identities and sentiments. Such provision would apply notwithstanding anything contained in any other law for the time being in force. This is in tune with the Constitutional ethos which envisages a secular State with liberal society...”
Religion is a matter or active faith and must be acquired by an active process of following the rituals and norms of a religion. A child for example does not acquire a religion either parent and his or her religion depends on the manner upbringing. At the age of majority he/she can change religion when he/she fully understands the consequences of their decision.Change of name does not signify change of religion. Surely it must have occurred to the judge that several persons are given names at birth which do not come from any religious texts and several others have names of religions to which they do not owe any allegiance.Even in case of conversion to Hinduism, for instance, it was held that a mere theoretical allegiance or bare declaration does not convert a person to Hinduism, but there must be a bona fide intention accompanied by conduct unequivocally expressing the intention is the sufficient evidence.The concept of deemed conversion is therefore unknown to law. To deny a woman the right to pursue the religion of her choice and to compel her to follow the religion of her husband would be a denial of the right guaranteed to her under Article 25.
The petitioner argues that the identity of a woman does not merge with that of her husband on marriage, and that the “doctrine of coverture“ has long been abandoned in the country of its origin i.e. the United Kingdom. Most importantly, the acceptance of the doctrine of coverture would be to deny to women the right to equality and would result in discrimination based on sex which is prohibited under Article 15 of the Constitution of India. Strangely, it is nowhere suggested by the Judge that a man loses his religion on marriage and is deemed to belong to the religion of his wife! The outcome of the case will be awaited by many who are committed to gender justice and have fought long battles to assert the right of women not to be discriminated against in all spheres of human endeavour.
An appeal is now pending in the Hon’ble Supreme Court.There are issues of constitutional importance involved in this appeal. What is the object of the Special Marriage Act? Can a woman’s legal identity and in particular her religion be deemed to have merged with that of the husband? Does the Constitutional protection of Article 25 extend to the Petitioner’s case? Whether the remedy under Article 226 of the Constitution of India be extended in the Petitioner? Intervention applications have been filed by others who have married under the Act and belong to different religions, a Hindu married to a Muslim and a Christian married to a Muslim. Both couples have brought up their children with secular values leaving it to them to choose their religion on attaining majority.
The highest Court of the land must decide these crucial questions of law and one hopes, give succour to the Petitioner, who is faced with the prospect of being unable to perform the last rites and ceremonies of her parents. The outcome of the case will be watched by many awaiting a decision on the interplay between personal law and constitutional values.
The Invisible Lawyers Team