The bench led by Justice S. Abdul Nazeer and Justice A.S. Bopanna issued notice in this matter. The petitioner is a Parsi woman and her plea says that her fundamental rights are circumvented because she faces social and religious ostracization owing solely to factors of lineage, ethnicity and race consequential to the fact she is married to a man considered to be a non-Parsi.
The Supreme Court on Friday heard a plea which sought the practice of excommunicating Parsi Zoroastrian women for marrying non-Parsi men as being discriminatory and unconstitutional.
The bench led by Justice S. Abdul Nazeer and Justice A.S. Bopanna issued notice in this matter. The petitioner is a Parsi woman and her plea says that her fundamental rights are circumvented because she faces social and religious ostracization owing solely to factors of lineage, ethnicity and race consequential to the fact she is married to a man considered to be a non-Parsi. Parsis are a race and ethnic group and ostracization of a Parsi Zoroastrian and her offspring on the grounds of her marriage to an individual of a different lineage, race or religion is contrary to basic human rights and the fundamental rights guaranteed by the Constitution of India.
The plea says, “Marriage is a personal choice, which choice is an essential element of the fundamental right to freedom and equality guaranteed by the Constitution of India. Women should be free to exercise that personal choice without having to face the consequence of being ostracized from the society, community and religion she was born into. This requires not only that: (a) the community and religion of her husband should not compel her to convert after her marriage or make it a condition to such marriage and at the same time; (b) the community and religion of her birth should not ostracize her or her offspring as a consequence of her marriage to an individual of a different community. This Petition pertains to the latter issue and asserts the right of a woman to belong to the community and religion into which she was born irrespective of who she marries.”
The plea also states, “That a section of the Parsi community, believes that Parsis are racially superior being of Aryan descent and insist that intermarriage of Parsis with other races “dilutes” and “contaminates” the ethnicity of the Parsis and therefore actively discourages intermarriage by socially excluding and ostracizing children born of intermarriages. This is contrary to the human rights of young impressionable children who are victimized simply because their mother is a Parsi but did not marry a Parsi. While some also discriminate against children born of intermarriages where the father is a Parsi married to a non-Parsi, the discrimination is prevalent and accepted as the norm where the child’s mother is a Parsi but not the father. While children are routinely discriminated against in case their father is a non- Parsi, even the Parsi women who are married to non-Parsis also face similar discrimination owing only to their marriage to non-Parsis. This discrimination on the basis of gender is justified on the grounds of it being the law of India, as set out in a 1908 decision of the Hon’ble High Court of Bombay in Petit v. Jeejeebhoy, 1908 (Suit No. 689 of 1906), which is assailed in this petition as being unconstitutional and wholly misconceived. Furthermore, the aforesaid case dealt only with the limited question of who can benefit from private endowments set up for Parsis. The social evils outlined in this Petition arise from the faulty application of this decision to all matters social and religious in deciding “Who is a Parsi?”
“The decision in Re. Petit v. Jeejeebhoy, discrimination against and denial of fundamental rights of Parsis, especially Parsi women who are married to non-Parsis has been justified also on the grounds of religion by failing to distinguish between Parsis, a racial group and the Zoroastrian religion. In reality there is no religious script or tenet of the Zoroastrian religion which justifies discrimination on grounds of race, ethnicity, parentage, or gender and such discrimination is not a part of the religious faith. On the contrary, Zoroastrianism is a faith propounding universal love and the oneness of humanity. Further, there is no custom or practice commonly followed and in recent times, the orthodox Parsis, who control the religious and social institutions, have amended the ‘rules’ and principles in response to an uproar in the Parsi community provoked by incidents which were especially despicable and bigoted,” the plea highlighted.
The petitioner also states in her plea that she is socially excluded from Parsi society and the Parsi community, and further admittedly does not have the same religious rights as a practicing Zoroastrian owing to the fact that her mother, the petitioner No 2, a Parsi Zoroastrian, is married to an individual who is not considered to be a Parsi. The petitioner No 2 asserts her right to uniformly and unequivocally continue to practice and profess the faith she was born into and also to bring up her own child within the said faith, or for the child to be accepted within the community on social non-religious matters.
The petitioner further states that she is deprived of their basic fundamental rights to equality and to live with dignity and to make personal choices. That apart, the petitioner vital rights to bring up her child without him having to face social ostracization and to raise the child in her own faith is being trampled upon even in the absence of any particular law or religious text. It is specifically pointed out that the Zoroastrian religion does not discriminate on grounds of gender and both a man and a woman have equal rights to practice and profess the religion. That however, despite the religion of Zoroastrianism not placing any such embargo, the Parsi community in India discriminates against Parsi women who marry individuals who are non-Parsis and routinely excommunicates their children. Such Parsi women are deprived of the right to raise their children as Parsis and commonplace social rights are denied to them. The same treatment is not meted out to Parsi males marrying a non-Parsi and their offspring from inter-marriages. That given the same, the petitioner’s vital rights under Article 14, 15, 19(1)(a) and 21 of the Constitution of India 1950 are threatened and her rights to practice and profess the religion of her birth, faith and choice after marriage with a non-Parsi even under the Special Marriage Act 1954 as a consequence of marriage of a Parsi Zoroastrian woman with a man of any other community or religion stand vitally affected. Thus, ex-communication of women is considered to be the price to be paid for intermarriage.