Goolrookh case: SC bench states prima facie no case for application of doctrine of merger


A special leave petition filed by a Parsi Zoroastrian woman married outside the community under the Special Marriage Act 1954 contending that the Trustees managing the fire temple and the Tower of Silence in Valsad had prohibited her in the event of the death of her father from attending the funeral rites.

The Special Leave Petition was preferred against the judgment of a 3 Judge Bench of the Gujarat High Court judgement dated March 23rd, 2012 wherein the High Court by a majority of 2:1 held that the religion of the woman having merged with that of her husband after marriage, therefore the woman would also become a non-Parsi.

The hearing commenced before a Constitution Bench of the Supreme Court on Thursday (December 7th) comprising of CJI Dipak Misra, Justice A.K. Sikri, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Ashok Bhushan. The question for consideration before the Constitution Bench was whether a Parsi Zoroastrian woman can keep her religious identity intact after choosing to marry someone from another faith under the Special Marriages Act of 1954.

On Thursday, Senior Advocate Indira Jaising submitted before the bench that religion is a matter of choice, and one may be born into a certain religion but once reaching the age of expression, may choose the religion they wish to practice. She stated, “The liberty of belief, faith and worship as envisaged in the Preamble has to be linked with the fundamental right under Article 25. The religion of any person cannot be dictated, least of all by the State.
It was argued by Senior Advocate Ms. Jaising that stopping a daughter from participating in her father’s last rituals was tantamount to a contravention of the right to association guaranteed under Article 19 read with Articles 21 and 25. She also submitted that this was a case of sex-based discrimination that was being practiced by the community, since a Parsi Zoroastrian man getting married to a non-Parsi would not face the same discrimination and therefore there was a violation under Article 15 of the Constitution of India.

Senior Advocate Ms. Jaising also sought to challenge the validity of the common law doctrine of merger/coverture which stated that after marriage the personality including the identity of the wife merged with that of her husband. This common law doctrine was relied upon by the Gujarat High Court in the impugned judgment to come to the conclusion that there was a merger of the religion of the husband with that of the wife and that the Petitioner would cease to be Parsi Zoroastrian.  

It was identified that common law can only be saved under Article 372 of the Constitution. However, it was necessary for such enforcement that it fulfils the test of the provisions of the Constitution, specifically the fundamental rights as provided under Article 13 of the Constitution.

The Bench observed during the hearing that the purpose of Special Marriages Act of 1954 under which the marriage of petitioner was solemnised, was for the parties to retain their individual identities post marriage. If either party had to convert to the religion of the other, then they would have solemnised the marriage under the Hindu Marriage Act of 1956 or respective Personal laws of other religions. Unless the wife expressly denounces her religion and converts to the religion of her husband, there would be a presumption that she is continuing to practice her own religion. It was stated that prima facie there was no case for accepting the application of doctrine of merger.
The Court after consultation with the counsel of the parties, granted time to Senior Advocate Mr. Gopal Subramanium, representing Valsad Parsi Anjuman Trust, to seek instructions on whether it would be permissible for a Parsi woman married to a non-Parsi to take part in Zoroastrian rites in particular, the Petitioner. The Hon’ble CJI observed that the filial sentiments and the attachment of the daughter with her father are emotions that must be respected.

The matter has been scheduled for further hearing on December 14th.

Read the order here.