New Delhi: A five-judge constitution bench of the Supreme Court on Thursday asked a Gujarat Parsi trust to specify whether it would allow women who married into other communities to enter its fire temple or tower of silence.
A bench headed by Chief Justice of India Dipak Misra was two-and-half hours into listening to arguments on a Parsi woman's plea against the curbs at the Parsi Anjuman Trust in Valsad when it halted the hearing to explore an out-of-court settlement after another Parsi woman informed the court there was no such practice in the community. The second woman also said such curbs were confined to the Valsad trust.
Goolrokh M. Gupta, who married a Hindu and filed her plea in 2013, said the trust has announced that it would not allow her to enter the fire temple for the last rites of her parents when they die. Goolrokh's parents are alive and in their 80s.
Goolrokh, herself an advocate, has appealed a 2012 Gujarat High Court order in favour of the trust. The court had by a 2:1 majority held that even though Goolrokh had married under the Special Marriage Act, she ceased to be a Parsi. The matter was referred to the apex court's constitution bench as it involved the fundamental right to practise any religion.
On Thursday, the bench decided to evolve an out-of-court solution after Farida Satarawala, also a Parsi married to a Hindu, informed the judges that barring the Valsad trust, she and other Parsi women married to non-Parsi men freely visit such temples elsewhere and there was no restriction on them from practising or professing their religion.
"I really can't perceive how can you (the trust) discriminate between a man and woman singularly on the ground of biological distinction. How can a lady be debarred, particularly when a person says he/she has not changed his or her religion?" CJI Mishra asked senior advocate Gopal Subramanium, appearing for the trust.
Justice A.K. Sikri - among the other judges on the bench that also included Justices A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan - pointed out that when a couple from different faiths marry under the Special Marriage Act, they retain their religious identity.
CJI Mishra then asked Subramanium to seek instructions from the trust on whether it was willing to lift the curbs and inform the court when the matter is heard next on December 14.
Earlier, CJI Mishra said nobody could take away the right of the Parsi woman to visit the fire temple unless she herself chose to convert to some other religion.
In the present case, Goolrokh continues to practice and profess Parsi religion despite marrying a Hindu. "It is only fair if we have a uniform policy. Rigidity is always not a correct principle of understanding a concept of religion. Less rigidity (will) encourage more to enter (the shrine). God will decide who, is his best disciple," CJI Misra said.
Goolrokh's lawyer Indira Jaising differed with the out-of-court approach and said the issue must be decided legally as it would have a bearing on another important issue - the rights of Hindu women to enter the Sabarimala temple. Females in the age group of 10-50 years are barred from the Kerala shrine on the ground that presiding deity is a celibate. The Sabarimala issue has been referred to a constitution bench that is yet to be constituted.
"We are not getting out of the problem. We will answer the Sabaramalai issue," Justice Misra told Jaising while adjourning the matter to December 14.
In Goolrokh's case, Jaising said her client had every "right to be present at the funeral of the parents" and the freedom of faith cannot be curtailed by any person, including the State, much less a religious trust.
"It (the Valsad trust bar) amounts to ex-communication from my religion. The trust is performing a secular function and is a public authority. No priest from the community has come forward under the Zoroastrian religion saying you have no right to attend the funeral," Jaising said, stressing that the restriction had no legal sanction even under the Parsi religion.
