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RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA

Yukta Bajaj

INTRODUCTION: RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA

RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA - MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS.
RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA

India is known for its cultural diversity globally. Indian religions are a major form of world religions along with Abrahamic ones. Conflict of law problem generally arise when the law of one state or country differ from that of another. In a country such as India, however where some citizens are governed by a religious law that is separate and distinct from the secular law of the state, a conflict of laws can arise within the state.

In India, such as conflict arises between Muslim personal law and India’s criminal procedure code concerning an Indian Muslim divorcee’s right to reasonable maintainance from her ex-husband. This particular law creates a problem because this raises an international issues of women’s right and gender discrimination. This note analysis both the conflict between religious law and secular or women’s law in the context of 2 different landmark  cases which is define below:-

INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS.

Today, 28th September 2018, the Court delivered its verdict in Sabarimala Temple Entry. A 4:1 majority held that the temple’s practice of excluding women is unconstitutional. It held that the practice violated the fundamental right to freedom of religion – Article 25(1) – of female worshippers. It struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from public places of worship, if the exclusion was based on ‘custom’.

The Court delivered four separate opinions: Chief Justice Misra, Justice Nariman, Justice Chandrachud, Justice Malhotra. Justice Nariman & Justice Chandrachud concurred with the opinion of Chief Justice Misra. The dissenting opinion in the case was delivered by Justice Indu Malhotra.

Chief Justice Misra’s opinion

CJI Dipak Misra, speaking on behalf of Khanwilkar J. & himself observed that religion is a way of life intrinsically linked to the dignity of an individual and patriarchal practices based on exclusion of one gender in favour of another could not be allowed to infringe upon the fundamental freedom to practice and profess one’s religion. He stated that the exclusion of women between the ages of 10-50 years practiced by the Sabarimala Temple denuded women of their freedom of worship, guaranteed under Article 25(1). He held that the devotees of Ayyappa did not pass the constitutional test to be declared a separate religious identity. He said that they are Hindus.

Thus he held that the temple’s denominational right to manage its own internal affairs, under Article 26(b), was subject to the State’s social reform mandate under Article 25(2)(b). Article 25(2)(b) provides that the State can make laws to reform Hindu denominations. Specifically, Article 25(2)(b) allows the State to make any law that opens a public Hindu institution to all ‘classes and sections’ of Hindus. Justice Misra interpreted ‘classes and sections’ to include the gendered category of women. He concluded that the Sabarimala custom of excluding women is subject to State mandated reform. He also held that the exclusion of women between ages 10-50 by the Sabarimala Temple cannot be an essential religious practice.

He held that if the Ayyappans are Hindus, the practice of excluding women cannot be held to be an essential religious practice. He struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965. He said that is both in violations of the Constitution and ultra vires to Sections 3 and 4 of its parent Act. Sections 3 and 4 of the Act were written with the specific aim of reforming public Hindu places so that they become open to all sections of Hindus. Rule 3(b) achieves the opposite — it allows public Hindu places of worship to exclude women on the basis of custom. Hence, CJI Misra concluded that the rule not only violates the Constitution, but also stands in conflict with the intention of the parent Act.

Justice Nariman’s opinion

Justice Rohinton Nariman delivered a concurring opinion. He held that the worshippers of Ayyappa do not constitute a separate religious denomination. He labeled them as Hindus who worship the idol Ayyappa. Thus he held that the Sabarimala Temple’s denominational freedom under Article 26 is subject to the State’s social reform mandate under Article 25(2)(b). He declared that the exclusion of women from the temple effectively rendered their right under Article 25 meaningless.

He emphasised that Article 25(1) protects the fundamental right of women between the ages of 10-50 years to enter the Sabarimala Temple and exercise their freedom of worship. He stated that there was sufficient material to conclude that the exclusion of women from Sabarimala violated Article 25(1). He concluded that the Ayyappans’ custom of excluding women, between the ages of 10-50 years, from the Sabarimala Temple was unconstitutional. He also struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules of 1965 as unconstitutional.

Justice Chandrachud’s opinion

In a separate and concurring opinion, Justice D Y Chandrachud held that the exclusion of women between the ages of 10-50 years by the Sabarimala Temple was contrary to constitutional morality and that it subverted the idelas of autonomy, liberty, and dignity.  He held that the morality conceptualised under Articles 25 and 26 of the Constitution cannot have the effect of eroding the fundamental rights guaranteed under these Articles. Justice Chandrachud concurred with the opinions delivered by CJI Dipak Misra & Justice Nariman to hold that the Ayyappans, or worshippers of Lord Ayyappa, did not satisfy the judicially enunciated requirements to be considered a separate religious denomination.

He held that the exclusion was not an essential religious practice. Justice Chandrachud further emphasised that physiological characteristics of women, like menstruation, have no significance or bearing on the entitlements guaranteed to them under the Constitution. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity and the stigma around the same had no place in a Constitutional order. Significantly, Justice Chandrachud also dealt with the argument that the exclusion was a form of untouchability prohibited under Article 17 of the Constitution.

He observed that a perusal of the Constituent Assemble Debates would show that the makers of the Constitution had deliberately chosen to not give the term untouchability a specific meaning. He concluded that this was to ensure that it was not understood in a restrictive manner and must therefore be given an expansive meaning. He further held that Article 17 is a powerful guarantee against exclusion and cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution.

Justice Malhotra’s dissenting opinion

Justice Indu Malhotra delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation’ of various competing claims to fundamental rights. She said that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. She held that the Sabarimala Temple satisfies the requirements for being considered a separate religious denomination. She therefore held that the Sabarimala Temple is protected under Article 26(b) to manage its internal affairs and is not subject to the social reform mandate under Article 25(2)(b), which applies only to Hindu denominations.

Note that Article 26, denominational freedom of religion, is subject to ‘public order, morality and health’. Justice Malhotra held that ‘morality’ (constitutional morality) must be understood in the context of India being a pluralistic society. She stated that the State must respect the freedom of various individuals and sects to practice their faith. She held that the fundamental right to equality guaranteed to women under Article 14 cannot override Article 25, which guarantees every individual the right to profess, practice and propagate their faith. She held that Rule 3(b) does not stand in conflict with its parent Act, the Kerala Hindu Places of Public Worship Act.

RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA - MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS.

She emphasised that the rule ‘carves out an exception in the case of public worship’. She held that the rule was consistent with Article 26(b) of the Constitution. She dismissed the argument that the Sabarimala custom violates Article 17 of the Constitution. Article 17 pertains to untouchability and prohibits discrimination on the basis of impurity. She stated that, in the context of the Article and the Constitution in general, untouchability refers to caste and does not extend to discrimination on the basis of gender.

Like Justice Chandrachud, she referred to the Constiuent Assembly Debates to establish how the founder intended to use the term untouchability. Unlike Justice Chandrachud, she concluded that untouchability does not extend to gender.

RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA - MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS.

MOHM. AHMED KHAN VS. SHAH BANO BEGUM

Mohm. Ahmed Khan (the appealing party) who was a lawyer by profession, married to Shah Bano Begum (the respondent) in 1932, had three sons and two daughters from this marriage. In 1975, when Shah Bano’s age was 62 years, she was disowned by her spouse and was tossed out from her marital home together with her children. In 1978, she filed an appeal in the presence of Judicial Magistrate of Indore, because she was abandoned from the maintenance of Rs. 200 per month, which was guaranteed to be provided by him. She demanded Rs. 500 per month as maintenance.

Subsequently, the husband gave her irrevocable triple talaq on November 6th, 1978, and used it as a defence to not pay maintenance.  The magistrate, in August 1979, directed the husband to pay an entirety of Rs 25 per month as maintenance. Shah Bano in July 1908 made a plea to the High Court of M.P, to change the sum of maintenance to Rs. 179 each month, and high court increased the maintenance to the said amount i.e. Rs. 179 per month.  The same was challenged by the spouse within the Supreme Court as a special leave petition to the High court’s decision. The verdict was given by C.J, Y.C Chandrachud, and the appeal of Mohd. Ahmed Khan was dismissed.

JUDGEMENT

Supreme Court said Section of the code applies to all citizens independent of their religion and consequently Section 125(3) of Code of Criminal Procedure is pertinent to Muslims as well, without any sort of discrimination. The court further stated that Section 125 overrides the personal law if there is any conflict between the two It makes clear that there’s no strife between the provisions of Section 125 and those of the Muslim Personal Law on the address of the Muslim husband’s obligation to provide maintenance for a divorced wife who is incapable to maintain herself.

Supreme Court in this case duly held that since the obligation of Muslim husband towards her divorced wife is restricted to the degree of ” Iddat” period, indeed though this circumstance does not contemplate the rule of law that’s said in Section 125 of CEPC., 1973 and subsequently the obligation of the husband to pay maintenance to the wife extends beyond the iddat period in the event that the wife does not have sufficient means to maintain herself.

It was further stated by the court that this rule according to Muslim Law was against humanity or was wrong because here a divorced wife was not in a condition to maintain herself. The payment of Mehar by the husband on divorce is not sufficient to exempt him from the duty to pay maintenance to the wife. After a long court procedure, the Supreme Court finally concluded that the husbands’ legal liability will come to an end if a divorced wife is competent to maintain herself. But this situation will be switched in the case when the wife isn’t able in a condition to maintain herself after the Iddat period, she will be entitled to get maintenance or alimony under Section 125 of CRPC.

PARSI COMMUNITY CASE

The Parsi community is quite exclusive – it allows only Parsis to enter the Fire Temple and Tower of Silence. Parsis also abide by patrilineal descent and Parsi women who inter-marry, are deemed to have converted to their husband’s faith. Resultantly, Parsi Religious Trusts may disallow Parsi women who have inter-married, from entry into the Fire Temple and Tower of Silence. Goolrukh, who lives in Valsad, Gujarat, married a person of Hindu faith. Upon seeing her Parsi friend who had also inter-married, be refused entry into the Fire Temple and Tower of Silence for her parents’ funerary rituals, Goolrukh decided to petition the Parsi Trust at Valsad to ask that she be allowed to attend the rituals that would comprise her parents eventual demise.

Valsad Trust refused to acknowledge Goolrukh’s request. Goolrukh approached the Hon’ble High Court of Gujarat and argued before the Full Bench that she continues to be a Parsi after her marriage to a Hindu. The Valsad Trust contended that Parsi women cease to hold their Parsi identity upon marriage outside their community. By a 2:1 majority, the Hon’ble High Court held that a Parsi woman, upon an inter- religious marriage under the Special Marriage Act, 1954 (‘SMA’), is deemed to acquire her husband’s religious status, unless a declaration is made by a competent court for continuation of her status as a Parsi after marriage1.

Two points of the majority judgment are open to debate:

  • First, it suggests a deemed conversion of only a woman upon her marriage under the SMA. This flies in the face of the Right to Equality under Article 14 and Right to Religion under Article 25 of the Constitution. The majority also portrays a regressive interpretation of the SMA, whichwas enacted post-Independence, in line with Constitutional principles. The British-era Special Marriage Act of 1872 (‘old SMA’) could not be employed by Christians, Muhammedans and Parsis and a declaration was to be made by the bride and bridegroom that they do not profess these religions. Resultantly they would have to renounce their religions for a marriage under the old SMA. The SMA of 1954 does not require any such declaration/ renunciation and allows marriages between all religions.
  • Secondly, the majority requires a court to factually determine and declare that a woman, despite her deemed conversion under the SMA, has chosen to abide by her religion as prior to marriage. This deemed conversion under the SMA – which women have no choice but to negate by a competent court’s declaration – is as good as an excommunication of women from their faith.

RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS.

RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS.

The majority problematically reasons that the wife’s deemed conversion will lend certainty for identification of the child’s religion, which is in the larger interest of society, and for the proper observance of customs2. This interpretation of the SMA not only excommunicates women from their religion, but limits the child to identifying with one religion. This militates against an individual’s Freedom of Religion guaranteed under Article 25 and goes against the ideals of a secular nation enjoined by the Preamble. The dissenting minority judgment is more in line with the applicable legal framework.

Justice Kureshi holds that Goolrukh was well within her right to retain her religious identity after her marriage to a Hindu. He also notes the progressive nature of the SMA holding that it enables persons of inter-religious faith to solemnize their marriage, in contrast to how personal religious laws may not recognize the same, unless one party renounces/ converts from his/her religion3.

However, Justice Kureshi opined that the petition was not maintainable as the Valsad Trust does not come within the definition of “State” under Article 12 of the Constitution4. This dismissal on maintainability is evocative of the unease felt by Courts when they must decide between religious customs and Fundamental Rights guaranteed under the Constitution. When Goolrukh appealed to the Hon’ble Supreme Court, the Valsad Trust gave into the Court’s suggestion that Goolrukh and her family be allowed to attend rituals, which order operates merely in the interim and is not rendered.

RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA

RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS.

CONCLUSION

We are yet to see whether Indian Courts would continue to employ a progressive approach to ensure that religious customs that are no more beneficial be overruled in favour of Fundamental Rights, which guarantees right to freely profess, practice and propagate religion subject only to public order, morality and health. This may be done by striking down of customs and usage which are in derogation of Fundamental Rights as provided under Article 13 of the Constitution.

RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS.

RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS.

RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS.

RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS. RELIGIOUS RIGHT VS WOMEN’S RIGHT IN INDIA – MOHM. AHMED KHAN VS. SHAH BANO BEGUM -INDIAN YOUNG LAWYERS ASSOCIATION & ORS. VS. THE STATE OF KERALA & ORS.

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