Context:
- The Supreme Court to decide: whether a Parsi woman can keep her religious identity intact after choosing to marry someone from another faith under the 1954 Act.
Case: A petition was filed by a Parsi, who was barred by her community from offering prayers to her dead in the Tower of Silence for the sole reason that she married a Hindu under the Special Marriage Act.
Key Point:
- A decision in favour of the woman would uphold the fundamental right to religion, dignity and life and create a paradigm shift for women within the minority community.
Disagrees with widespread notion
- The Bench, prima facie, disagreed with the widespread notion in common law that a woman’s religious identity merges with that of her husband after marriage.
Defence lawyer argument:
- Arguing for the petitioner, senior advocate Indira Jaising submitted that every custom, usage, customary and statutory laws had to stand the test of the Fundamental Rights principle.
- Article 372 (continuance of existing laws) of the Constitution was subject to Article 13, which mandated that laws should not violate the fundamental rights of an individual.
- Jaising argued that the fundamental right enshrined in Article 14 of the Constitution guaranteed equality before the law and the equal protection of the laws. It prohibited discrimination on grounds of religion, race, caste, sex or place of birth. “Anything arbitrary violates the rule of law,”.
- Denying a woman respect and the right to observe her religion merely because she married outside her faith was violative of her fundamental right to religion enshrined under Article 25 of the Constitution.
- Jaising argued that the ‘doctrine of coverture’, which held that a woman lost her identity and legal right with marriage, was violative of her fundamental rights. ”The doctrine is not recognised by the Constitution.”
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