Senior Advocate Darius J. Khambata, appearing for a Parsi Zoroastrian woman who married under the Special Marriage Act, challenging the denial of certain religious rights after marrying outside the faith, argued before the nine-judge Constitution Bench on Day 11 of the Sabarimala reference.
Senior Advocate Darius J. Khambata submitted that denying a Parsi woman married under the Special Marriage Act access to religious rights effectively treats such a marriage as a form of “deemed conversion” and “excommunication”. He submitted that the Gujarat High Court had effectively held that a woman’s religious identity merges with that of her husband, a position he argued undermines constitutional protections under Articles 14, 19 and 21.
He clarified that the petitioner was not seeking any additional privileges but only the right to continue practising her faith: “She just wants to continue her religion. She does not want anything more.”
He also highlighted unequal treatment within the community, pointing out that Parsi men who marry outside the faith do not face similar restrictions:
“There is an unbroken practice that a Zoroastrian man marrying a non-Zoroastrian does not face such prohibition.”
Gender Bias &‘deemed conversion’ of Parsi women
Senior Advocate Darius J. Khambata argued that there is no uniform or essential religious practice justifying exclusion of Parsi women upon their marriage outside the faith. He pointed to material on record, including a resolution passed by the Bombay Parsi Trust permitting the entry of women, to demonstrate that practices vary and are not rooted in core religious doctrine. According to him, the restriction is a recent and inconsistent imposition by certain trustees rather than a settled tenet of the faith, warranting judicial scrutiny rather than deference.
Justice BV Nagarathna questioned the gendered nature of the exclusion, observing that children of Parsi men continue to retain their religious identity, raising concerns about unequal treatment:
“This is only for ladies? Children of a Parsi father get the benefit of Zoroastrian identity by birth how can it be taken away from a woman because of marriage? It is virtually an excommunication.”
Justice MM Sunderesh also noted that the practice assumes abandonment of faith upon interfaith marriage: “This practice presupposes that once there is intermarriage, faith is given up.”
On the question of conversion and identity, Mr Khambata submitted that there is no legal or religious basis to presume that a woman loses her faith upon marriage under the Special Marriage Act. He argued that what is being imposed is an automatic “deemed conversion,” which finds no support in law or doctrine.
Justice Joymalya Bagchi noted that the practice resembles the common law doctrine of merger of a woman’s identity into that of her husband. To this, Mr Khambata clarified that such doctrines, including coverture, are no longer recognised in modern constitutional jurisprudence. Justice BV Nagarathna again observed that matters of conscience and belief are intrinsic to an individual and cannot be taken away merely by marriage.
Denominational Rights Cannot Override Individual Freedom
On the reconciliation of individual rights to freedom of religion under Article 25 with the rights of religious denominations to manage their own affairs under Article 26, Mr Khambata argued that Article 25 forms the foundational basis of religious freedom in the Constitution, with Article 26 emerging as a derivative or institutional extension of that individual right. In his submission, denominational autonomy cannot be interpreted in a manner that overrides or diminishes the core constitutional guarantee available to individuals.
“Even assuming Article 26 is separate, it is complementary to Article 25, at least it cannot operate contrary to Article 25. To give primacy to Article 26 would be to annihilate Article 25.”
He contended that any interpretation granting primacy to Article 26 would risk undermining individual freedoms, particularly where denominational practices come into conflict with constitutional values. Instead, he urged the Court to adopt a harmonised reading of both provisions, ensuring that institutional rights operate within the broader framework of individual liberties.
Justice Joymalya Bagchi observed that the argument being advanced aligns with the principle laid down in Devaru, which calls for harmonisation between individual and denominational rights. Justice Ahsanuddin Amanullah, in a lighter vein, noted: “on lighter vein, every counsel says balance but tell us how to balance.”
Marriage Cannot Strip Women of Religious Rights
On the question of equality, Mr Khambata argued that the guarantee of religious freedom under Article 25 inherently incorporates principles of equality. He submitted that exclusionary practices, particularly those based on gender, cannot be justified within the constitutional framework, as they conflict with the broader guarantees of dignity and equal treatment. Drawing on the idea of constitutional morality, he submitted that practices which discriminate against women cannot be sustained merely by being characterised as religious, and must be tested against contemporary constitutional standards.
He relied on Joseph Shine to argue that marriage does not extinguish a woman’s autonomy or identity: “Marriage is for equals; women cannot be treated as chattel.”
He submitted that practices which deny women religious rights on the basis of marriage reflect unconstitutional notions of subordination. Addressing the doctrine of essential religious practices, Khambata argued that courts must determine whether a practice is truly integral to religion before granting it protection.
He further asserted that exclusionary practices cannot be justified merely by invoking religion:
“I am not aware of any religion which subjugates women or treats them as chattel.”
Justice MM Sunderesh suggested that the issue may involve examining whether a practice is secular in nature, to which Mr Khambata responded that the ultimate test must be constitutional validity. Mr Khambata submitted that only practices that are demonstrably integral to religion can claim constitutional protection, reiterating that individual rights to equality and dignity must guide the interpretation of religious freedom.