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2012 (2) GCD 1463 (Guj)
[FULL BENCH]
Hon’ble Mr. Justice Jayant Patel,
Hon’ble Mr. Justice Akil Kureshi &
Hon’ble Mr. Justice R.M. Chhaya
Goolrokh M. Gupta Maiden Name Goolrokha
Versus
Burjor Pardiwala President & Ors.
Special Civil Application No. 449 of 2010—Decided on 23/03/2012
Special Marriage Act, 1954 - Sections 11, 12, 12(2), 13, 15, 19 to 21 and 21-A - Parsi Marriage and Divorce Act, 1936 - Bombay Trust Act - Section 41-A - Civil Procedure Code, 1908 (Central Act 5 of 1908) - Section 9 and Order I Rule 8 - Constitution of India, 1950 - Articles 12, 25, 26 and 226 - Petitioner a born Parsi woman - Marries with non-Parsi Hindu under Special Marriage Act, 1954 - Claim rights of natural Parsi - Scope of - Finding as to - Court considering the law on the subject and various authoritarian pronouncement of Apex Court concluded that in normal circumstances when marriage takes place between a male and a female belonging to different religion it shall be persumed and considered that the women after marriage has merged into religion of her husband and such will be the identity of their family originating from their marriage and such identity would stand extended to their children too - Same situation would remain in normal/circumstances ever for the man and woman who have married under Special Marriage Act unless it is established in any Court of Law after undertaking fact finding inquiry that even after marriage the woman has continued with her own religion but such conclusion can be recorded only when it is established by cogent and satisfactory evidence before the competent Court - Admittedly in the matter no fact finding inquiry has been under taken on the part of the status of petitioner to be continued as Parsi Zorastrian after marriage nor this Court in petition under Article 226 of the Constitution can undertake such exercise - In absence of such inquiry Court can not accept the petitioner as continued to be Parsi Zorastrian age marriage with non-Parsi man may be even under Special Marriage Act - However whether she should be permitted to enter to the place of worship or not would be a matter of religion by a particular religious domination - Such denomination to marriage is permitted subject to public order and morality - Such rights guarantees apply to only integral part of religion affairs or religious tenants and not as per belief - Court held that unless it is found by the competent Court that a particular practice or alleged action is an integral part of religion the enjoyment of such rights can not be finalised - Therefore no writ deserves to be issued to respondents in the present petition on the stage.
Law Laid Down :
(I) A Schedule Caste became Christian but on reconversion he could not become Hindu but recognition by the Community is a pre-condition.
(II) No usage which is found to be permicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by Courts in the Country.
Jayant Patel, J.—The Division Bench of this Court (Coram: S.J. Mukopadhaya, CJ. and AS. Dave, J.) framed the following issues—
1.1. Whether the petitioner - a born Parsi woman, by virtue of contracting a civil marriage with a non-Parsi man under the Special Marriage Act, cease to be a Parsi?
2. If the first issue is answered in negative, then the question will be as to whether the respondents are justified in refusing the petitioner her rights of being a natural Parsi?
3. Whether the High Court under Article 226 of the Constitution of India can issue a writ of mandamus to the respondents to grant reliefs as sought for in the present case?
3.1. It was also observed by the Division Bench of this Court that it will be open to the parties to raise any other issues. Under the circumstances, the matter before the present Bench of this Court.
FACTUAL BACKGROUND :
4. Before we consider the controversy or express view on the aforesaid issues, factual background would be relevant and deserves to be considered. The petitioner is a born Parsi Zoroastrian woman/lady whose parents are Mr. Adi J. Contractor and Mrs. Dinaz A. Contractor. Both are Parsi Zoroastrians following Zoroastrian religion. As per the petitioner, Navjote ceremony of the petitioner was performed by Dasturji Saheb in the year 1971 as per the tenets of Zoroastrian religion.
5. On 01.02.1991, as per the petitioner, she got married to Mahipal Gupta, a born Hindu male as per the provisions of Special Marriage Act. The petitioner contends that even after the marriage, she has continued to follow Zoroastrian religion and therefore, she has the right to enjoy all privileges under the Parsi Religion including right to offer prayers at Agiari (Parsi temple comprising of Holy fire) and a tower of silence for funeral. She contends that like the petitioner, one Mrs. Dilbar Valvi, Parsi woman since had got married to a Hindu man, Mr. Prakash Sukheswala, when Dilbar’s father had passed away and the funeral was performed at tower of silence at Valsad, she was not allowed by the Trustees of Valsad Parsi Anjuman to attend all ceremonies in the tower of silence. Similarly, when the mother of Dilbar died, Dilbar was not allowed to even sit in the room where the dead body of her mother was kept. The petitioner contends that same treatment would be given to her unless there is any appropriate direction.
6. As per the petitioner, Parsi Agiari at Mota Parsiwad, Agiari Street, Valsad is the place at which all Parsi Zoroastrians are entitled to free access for the purpose of worship and ceremonies. Parsi tower of silence situated at Dhampur Road, Near railway crossing, over bridge, Valsad is also a place to which all Parsi Zoroastrians are entitled to free access for the purpose of attending funeral ceremonies of other Parsi Zoroastrians and all Parsi Zoroastrians have a right for having their funeral at the tower of silence. The Respondent Nos. 1 to 9 are controlling and in charge of the said Parsi Agiari being trustees of Valsad Parsi Anjuman Trust.
7. It is the further case of the petitioner that if a male Parsi Zoroastrian marries to a non-Parsi or a non-Zoroastrian family, he continues to enjoy all rights as available to a born Parsi whereas if a female Parsi Zoroastrian marries to a non-Parsi or a non-Zoroastrian male, such rights are not recognized or permitted by the respondents and therefore, she contends that there is a discriminatory treatment being given by Respondents No. 1 to 9 as compared to Parsi males which violates Articles 14 and 25 of the Constitution of India. As per the petitioner, the approach on the part of respondents of not allowing a Parsi Zoroastrian female to enjoy all rights after her marriage with a non-Parsi male is an orthodox view by completely ignoring the law of the land. It is further case of the petitioner that there is nothing in the Zoroastrian religion or scriptures or any textbooks which denies any Parsi Zoroastrian woman married to non-Parsi non-Zoroastr
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