Why does a woman’s religious identity in India still depend on who she’s married to?
Eight years before Independence, in a remarkable document titled ‘Women’s Role in a Planned Economy’, a committee led by the social reformer Rani Rajwade wrote that in the independent India yet to be born, “the individual [must be] the unit [and] marriage shall not be a condition precedent to the enjoyment of full and equal civic status, social rights and economic privileges”. Too radical for its time, the document’s ideas nonetheless found utterance 10 years later in the Constitution, which guaranteed equality before law and forbade discrimination “on grounds of.... sex”. In making equality one of its three foundational values – alongside liberty and fraternity – the Constitution repudiated the existing landscape in which laws, customs, and social institutions had long combined to deny women equal citizenship and had effectively worked to submerge their individuality within the strictures of marriage, family, and community. The Constitution – which, after all, was the culmination of a freedom movement that had seen large-scale participation from women on equal terms with men – promised a transformation from subjecthood to citizenship.
That promise, however, seemed to have bypassed the Gujarat High Court when, in 2012, it ruled that if a Parsi woman married a non-Parsi, she would lose her religion. The reason, said the High Court, was that in all faiths, on marriage, a woman’s religion “shall merge into... that of the husband”. In December, the Supreme Court briefly heard the appeal from this judgment, and is due to hear it in full later this month. And at that point, the court will have an opportunity not only to set right the error of the Gujarat High Court, but also to clarify that under the Indian Constitution, islands of religious or personal law cannot trump individual dignity and equality.
At the heart of the Goolrokh Gupta vs Burjor Pardiwala case are two issues. First, who decides religious faith? The dispute in the case turns upon the fact that after her marriage to a non-Parsi, the petitioner (Goolrokh Gupta) feared that she would be forbidden from offering worship in the Parsi Towers of Silence, and from performing her parents’ last rites there. This was because other Parsi women who had married outside the religion had been forbidden from accessing the Towers of Silence (Agiaris), and in her own correspondence with the Parsi high priest as well as with the person in charge of her local Agiari, Goolrokh’s right to do so had not been recognised. The question before the High Court of Gujarat, therefore, was whether her continued profession of her Parsi faith after her marriage could be repudiated by the trustees of her Agiari, if they held the view that she was no longer “Parsi”. In siding with the latter, the High Court, therefore, endorsed the view that the freedom of religion under the Constitution was not an individual right, but was subject to the dictates of a class of officially-sanctioned gatekeepers.
The second issue, of course, is whether an inter-faith marriage could deprive a woman of the right to continue practising her old religion, and it is in this context that the Gujarat High Court made its observation that marriage entailed a “merging” of the wife’s religion into that of her husband.
While the two issues seem different – the first deals with religious freedom while the second is about gender equality – there is something that unites them: it is that the levers of religious power have always been under the control of men. Apart from a few outliers, it is primarily men who have authored religious texts, interpreted religious texts, and implemented religious mandates. It is therefore scarcely surprising that without exception, personal laws and religious doctrine are stacked against women, and consequently, at odds with the Constitution’s promise of equality.
Last year, in the triple talaq case, the Supreme Court had the chance to affirm the primacy of constitutional values over the mandates of religious gatekeepers. It fluffed its lines, however, with two judges out of five according personal law the status of a fundamental right and immune from constitutional or legislative interference, and none of the five judges endorsing the view that the Constitution would prevail over personal law. But now, once again, the Court has a golden chance to reaffirm a very basic proposition: that religion cannot serve as a cloak to deny women equal status under the Constitution and, in the ringing words of Rani Rajwade and her comrades from 78 years ago, “marriage shall not be a condition precedent to the enjoyment of full and equal civic status, social rights and economic privileges”.
Gautam Bhatia is an advocate in the Supreme Court
The views expressed are personal