- A woman does not mortgage herself to a man by marrying him and she retains her identity, including her religious identity, even after she exercises her right to marry outside her community under the Special Marriage Act, Chief Justice of India Dipak Misra orally observed while heading a five-judge Constitution Bench.
- The Special Marriage Act:
- The Special Marriage Act of 1954 is seen as a statutory alternative for couples who choose to retain their identity in an inter-religious marriage.
- “Special Marriage Act confers in her the right of choice. Her choice is sacred. I ask myself a question: Who can take away the religious identity of a woman? The answer is only a woman can choose to curtail her own identity,
- Chief Justice Misra said on the first day of hearing of a petition 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.
- Nobody could presume that a woman has changed her faith or religion just because she chose to change her name after marrying outside her community, the Chief Justice observed.
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.
- Indicating that this amounted to discrimination on the ground of gender, Chief Justice Misra asked, “How can you [Parsi elders] distinguish between a man and woman singularly by a biological phenomenon… If a woman says she has not changed her religion, by what philosophy do you say that she cannot go to the Tower of Silence? No law debars a woman from retaining her religious identity.”
- The court said it had to decide whether a religious principle had dominance over the constitutional identity of a Parsi woman.
- 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.