This article is written by Ms. Nimisha Dadhich, a company secretary and law graduate. This article is an attempt to analyse the religious identity of women in Indian society and examine the historical, cultural and legal aspects related to it.

This article has been edited and published by Shashwat Kaushik.

Introduction

India is known worldwide not only for its varied culture and traditions but also for its religious diversity. The diverse culture, traditions and religion act as the principal factors in defining India’s identity across the globe. Freedom to practice any religion is the fundamental right of every human being and is a fundamental characteristic of the Indian Constitution.

Though India has made significant progress in recent years towards gender equality, women’s empowerment, women’s education, and modernisation, women in India still face many obstacles in society. Discrimination against women has existed in different forms for ages. Women continue to face gender unequalities, sexual harassment, and domestic violence in India. The societal structure in India remains deeply influenced by historical, cultural and patriarchal norms, often putting women in subordinate positions.  

In India, married women experience more discrimination and face greater challenges in their personal as well as professional lives. One such issue that married women deal with is related to their religious freedom. Although the Indian Constitution states that all men and women have equal rights to choose their religion, this is far from reality. Despite a strong and dedicated judicial system, religious freedom in India is a sensitive matter and a topic for unending discussion. Till today, women are considered subordinates to the male members of the family and are denied their basic rights. A woman’s religious identity is seen as an extension of her father’s/ husband’s identity and is often determined by the beliefs of her marital family. 

Factors affecting religious freedom of women

For ages, a woman’s religious identity in India has been deeply connected with the historical, cultural and social beliefs of her marital family. Women are not allowed to practice any religion or belief of their choice. There are many factors contributing to this state of women. Let us understand these factors in detail:

Patriarchy and the Indian society

The most significant obstacle to a woman’s development and freedom of religion are the various patriarchal norms that have been prevalent in Indian society since ages. Patriarchy simply means male domination. It is a social system in which men hold significant power and women are often considered as subordinates. Despite various efforts towards abolishing patriarchy, it is deeply rooted in the Indian social system. Today, women face discrimination due to the patriarchal mentality of society. Women are considered subordinates to the male members of the family and are denied their basic rights. 

Marriage

In India, marriage not only unites two souls but also symbolises the amalgamation of two families, communities and religions. This notion can be prominently seen in arranged marriages. As discussed previously, a woman’s religious identity is seen as an extension of her father’s/ husband’s identity. Hence, a bride is expected to adopt her husband’s religious identity and beliefs after marriage. This often results in coercion and discrimination against the religious freedom of women.

Societal pressures and expectations

Women in India are heavily burdened by societal pressures and unrealistic expectations. They are expected to behave in a certain manner at all times. Rigid gender roles often result in expectations that women must be submissive to the male members of the family, especially husbands. They must dress up in a certain manner and adhere to the customs and religious practices, regardless of their own beliefs and preferences. By disregarding these societal norms and expectations, they are considered stubborn, obstinate and rebellious.

Legal framework

India’s legal system plays a pivotal role in safeguarding the fundamental rights of its citizens. The judicial system has always emphasised the significance of gender equality and religious freedom and worked towards safeguarding the rights of citizens in these areas. The Indian legal system has also played a pivotal role in defining the religious identity of a married woman as that of her marital family.

Article 14 of the Indian Constitution

Article 14 of the Indian Constitution stands as a cornerstone of the nation’s legal framework, enshrining the fundamental principle of equality before the law. This seminal provision guarantees that every citizen, irrespective of their social background, religious affiliation, or personal beliefs, shall be treated equally in the eyes of the law.

The significance of Article 14 cannot be overstated. It forms the foundation of a just and equitable society, where every individual is afforded the same opportunities and protections under the law. This right to equality permeates all aspects of life, from the courtroom to the workplace, ensuring that no one is unjustly discriminated against or denied basic rights due to factors beyond their control.

One of the key implications of Article 14 is the prohibition of discrimination based on various grounds, including caste, creed, and religion. This means that the law must treat all individuals equally, regardless of their social or religious identities. This principle serves as a powerful safeguard against prejudice and bigotry, promoting inclusivity and fostering a sense of belonging among all citizens.

Furthermore, Article 14 mandates that laws and policies be applied uniformly to all citizens without any arbitrary or unreasonable distinctions. This principle of equal protection of the law ensures that the government cannot enact discriminatory laws that favour certain groups or individuals while disadvantaging others. It also imposes a duty on the government to provide equal access to public services, facilities, and opportunities for all citizens, irrespective of their personal characteristics.

The right to equality before the law is crucial for the preservation of individual liberty and the promotion of human dignity. It empowers citizens to seek justice and hold the government accountable for any violations of their fundamental rights. It also fosters a sense of trust and confidence in the legal system, knowing that all citizens are subject to the same laws and procedures.

Article 25 of the Indian Constitution

Freedom of religion is a fundamental right guaranteed by Article 25 of the Indian Constitution. This Article states that every citizen has the right to practice and profess the religion of their choice, without any coercion or pressure. It protects and promotes religious freedom in the country.

This freedom encompasses several key aspects:

1. Religious belief: Individuals have the right to hold and adopt any religious beliefs, whether they are traditional or non-traditional, theistic or atheistic.
2. Religious practice: Citizens are entitled to engage in religious practices, such as offering prayers, participating in rituals, and observing religious festivals.
3. Religious expression: Freedom of religion includes the right to express one’s religious beliefs through speech, writing, art, and other forms of expression.
4. Religious assembly: Individuals have the right to assemble for religious purposes, such as attending religious gatherings, congregational prayers, and spiritual retreats.
5. Religious education: Citizens are free to receive and impart religious education, either through formal institutions or informal means.
6. Religious conversion: Freedom of religion includes the right to convert from one religion to another or to choose not to follow any religion at all.
7. Religious institutions: Religious institutions, such as temples, mosques, churches, and gurudwaras, enjoy the freedom to establish, manage, and administer their affairs according to their religious principles.
8. Prohibition of religious discrimination: Article 25 also prohibits discrimination based on religion in matters such as employment, education, and access to public facilities.

The Indian Constitution’s commitment to freedom of religion reflects its vision of a secular state, where the government does not favor or endorse any particular religion but instead ensures that all religious communities can coexist peacefully and practice their faith freely.

The Special Marriage Act of 1954

The Special Marriage Act, enacted in 1954 by the Government of India, serves as landmark legislation facilitating interfaith and inter-caste marriages, including unions between individuals belonging to different religious communities or castes. This act provides a comprehensive legal framework that addresses the conditions and procedures for solemnising such marriages, ensuring the rights and responsibilities of the parties involved.

One of the key aspects of the Special Marriage Act is its emphasis on personal choice and consent. It empowers individuals to enter into matrimonial alliances without the constraints imposed by religious or social norms. By recognising the right to marry a person of one’s choice, regardless of religious or caste differences, this act promotes inclusivity and individual autonomy in matters of marriage.

To facilitate interfaith and inter-caste marriages, the Special Marriage Act outlines a straightforward process for solemnising such unions. It requires that both parties give their free consent, have attained the legal age of marriage, and are not prohibited from marrying under any other law. Additionally, the act stipulates that a notice of intended marriage must be published in the district where the parties reside, allowing for any objections to be raised within a specified period.

Upon fulfilment of these requirements, the marriage can be solemnised before a marriage officer appointed by the state government. The marriage officer is responsible for ensuring that the marriage is conducted in accordance with the provisions of the act and that all legal formalities are observed. The act also provides for the registration of the marriage, which serves as legal proof of the marital union.

Furthermore, the Special Marriage Act addresses the rights and responsibilities arising from interfaith and inter-caste marriages. It ensures that both partners have equal rights and obligations in terms of property ownership, inheritance, and maintenance. Additionally, it recognises the rights of children born out of such marriages, ensuring that they are entitled to the same legal protections and privileges as children born to couples of the same religion or caste.

The enactment of the Special Marriage Act marked a significant step towards promoting social harmony and inclusivity in India. It provides a legal framework that safeguards the freedom of choice in marriage and enables individuals to forge matrimonial alliances based on mutual love and consent, transcending religious and caste boundaries. By recognizing the validity and sanctity of interfaith and inter-caste marriages, this act contributes to the creation of a more egalitarian and progressive society.

The Goolrukh M. Gupta vs. Burjor Pardiwala President Ors. 

Background

The Goolrukh M. Gupta vs. Burjor Pardiwala and Ors. case was presented before the Gujarat High Court in 2012 and revolves around Ms. Goolrukh Gupta, a Parsi woman, who challenged the notion that an inter-religious marriage could not deprive a woman of her rights to practice her old religion. The petition of Ms. Gupta questions interfaith and inter-religious marriages in India and the effect such marriages have on the religious practices and beliefs of women.

Facts of the case

The petitioner claims that even after marriage, she has continued to follow the Zoroastrian religion and therefore has the right to all privileges under the religion and that marrying a non-parsi man under the provisions of the Special Marriage Act, 1954, does not cease to be a Parsi.

Religious freedom vs. gender equality

The case struggles to find a balance between the two important rights enshrined in the Indian Constitution, religious freedom and gender equality. Article 25 of the Indian Constitution guarantees the freedom to profess, practice and propagate any religion. This article states that every citizen has the freedom to practice any religion as per their views and beliefs without any coercion or pressure. It protects and promotes religious freedom in the country. Article 14 of the Indian Constitution guarantees equality before the law and prohibits discrimination based on religion, race, caste, or gender. The case raises the issues faced by women with regard to their religious freedom and also highlights the discrimination faced by women within religious communities. While religious communities have a say in deciding their respective customs and traditions, such customs and traditions must be framed within the boundaries of laws and must not supersede any law.

Patriarchy within the community

The dispute in the case raises the point that the Parsi community forbade Ms. Gupta to enter the fire temple to perform the last rites of her father as she had married outside the community. The Parsi community’s law forbids women who have married outside their community to participate in any religious ceremonies within the community. This clearly reflects patriarchal norms within the community.

Judgement

The Supreme Court stated that the Parsi Community should remove the ban as DNA does not evaporate after marrying outside one’s religion and that by marrying outside her religion, a woman does not surrender her affection to her father. The judgement of the Supreme Court was of significant importance as it highlighted the fact that personal laws cannot supersede the constitutional rights of citizens. This judgement was historic in itself and set an example for upholding the constitutional rights of citizens and standing against the discriminatory practices of religious communities. 

Challenges

In a society where patriarchal norms and time-honored traditions have long held sway, India is witnessing a glimmer of hope for change. The thinking process of its people, particularly regarding gender roles, has been gradually evolving. Today, a growing number of women are stepping out of the confines of traditional expectations, embracing confidence and independence like never before.

This remarkable shift can be attributed to several key factors. Education has played a pivotal role in empowering women, providing them with the knowledge and skills they need to navigate the world on their own terms. Urbanisation and modernization have also contributed to this transformation, exposing women to new ideas and opportunities. Technological advancements have further accelerated this progress, connecting women to a global network of information and support.

Moreover, the concept of women’s empowerment has gained significant traction in recent years. Organisations, government policies, and social movements have all played a crucial role in raising awareness about women’s rights and advocating for their equality. As a result, more and more women are becoming aware of their rights, duties, and responsibilities, and are demanding a space for themselves in society.

This positive change is not without its challenges. Patriarchy and traditional norms continue to pose obstacles for women seeking to break free from societal constraints. Discrimination, violence, and harassment remain pervasive issues, and women often face significant barriers in accessing education, employment, and healthcare.

Despite these challenges, the progress that has been made is undeniable. Women in India are increasingly taking on leadership roles in various fields, from politics to business to science and technology. They are actively participating in decision-making processes, shaping policies, and advocating for social justice. Their voices are being heard, and their contributions are being recognized.

However, these developments are often considered regressive by society and are often met with resistance. In many cases, it is observed that women challenging these traditional customs have faced severe repercussions from society, including their own families. By disregarding these societal norms and expectations, they are often considered stubborn, obstinate and  rebellious. 

Conclusion

Religious freedom in India is a sensitive matter and has always been a key topic for discussion. The religious identity of a woman and her marital status are two sides of the same coin and portray the complexities of culture and unrealistic societal expectations that have been deeply rooted in the Indian social system for ages.

While it is true that the status of women in India has improved tremendously as compared to the past and women today enjoy greater independence, discrimination against women arises in many areas of society. Despite a strong and dedicated legal system, ensuring religious freedom in India, especially in the women’s community, proves to be a daunting task.

For India to be successful in all its future endeavours, a systematic approach needs to be adopted to ensure gender equality and religious freedom and to abolish patriarchy and unrealistic societal expectations in order to provide long-due respect to the women’s community.  

References

• Why does a woman’s religious identity in India still depend on who she’s married to? – Hindustan Times
• Parsi woman who married outside religion can enter fire temple, says Supreme Court – India Today
• (PDF) Religious freedom and gender equality in India
• Top Five Cases related to Religious Freedom in India
• In-Depth Analysis of Article 14 of the Indian Constitution
• Goolrokh M Gupta v. Burjor Pardiwala President Others | Gujarat High Court | Judgment | Law | CaseMine.
• https://www.jetir.org/papers/JETIR2208563.pdf