This article is written by Aanika Aery, currently pursuing B.B.A. LLB from Symbiosis Law School, Noida; and Kishita Gupta, an advocate who is a graduate of the Unitedworld School of Law, Karnavati University in Gandhinagar. This is an exhaustive article which deals with the Parsi Marriage and Divorce, 1936.

It has been published by Rachit Garg.

Introduction

The Parsi marriage is also considered important for its validity to be a contract via an Ashirvad religious ceremony. The word ‘Ashirvad’ literally means blessings. A prayer or God’s call to the parties to comply with their marital duties of trust. The marriage and divorce are stated in a separate act for Parsis, known as the Parsi Marriage and Divorce Act, 1936. The same will be discussed below in the given article.

The Parsi Marriage and Divorce Act, 1936 (hereafter referred to as “the Act,” “the said Act” or “this Act” as appropriate) is one of the most intriguing pre-independence laws of the Indian legal system. The Parsi Marriage and Divorce Act, 1865, was repealed by the aforementioned Act, which went into effect on June 22, 1936, and amended the law governing marriage and divorce among Parsis. The 1936 Act was last amended by the Parsi Marriage and Divorce (Amendment) Act, 1988.

Who are Parsis

The Bombay High Court, in the case of Sir Dinshaw Manockji Petit v. Sir Jamsetji Jeejeebhoy (1908) observed that the Iranies from Persia who come to India, either temporarily or permanently, and profess the Zoroastrian religion, along with the children of Parsi fathers by alien mothers who have been duly and properly admitted into the religion, make up the Parsi Community. These people are all descended from the original Persian emigrants. The Parsis in India are descended from a group of Persians who were forced to abandon their homeland around 1200 years ago as a result of Mahomedan religious persecution. After seeking refuge in Kohistan and the Isle of Ormus, this group of Persians ultimately settled in India; at the moment, Bombay serves as their main administrative centre.

In another judgement by the Bombay High Court, Jamshed Irani v. Banu Iarni (1967), it was observed that long before 1936, Zoroastrians from Iran and India were referred to as Parsis, and this usage was widespread in both countries. Consequently, the Act’s use of the term “Parsi” refers to both Iranian and Indian Zoroastrians.

It was observed in the case of Sarwar Merwan Yezdiar v. Merwan Rashid Yezdiar (1950) that a Zoroastrian who temporarily lives in India while being registered as a foreigner and whose residence remains Persian does not magically transform into a Parsi just because they share the same racial heritage. An Iranian can only become a Parsi by residing in India, and that is at least a necessary prerequisite. As a result, the Parsi Chief Matrimonial Court, which was established in accordance with the Parsi Marriage and Divorce Act, 1936, lacks the authority to hear an action for dissolution of marriage brought against him. Section 29 of the Parsi Marriage and Divorce Act, 1936 designates the appropriate court where a complaint may be filed. It assumes that the lawsuits filed have jurisdiction, but that by itself, that jurisdiction cannot be granted in cases when the court lacks jurisdiction.

Parsi Marriage and Divorce Act 1936

Important definitions

Section 2 of the Parsi Marriage and Divorce Act,1936 states the important definitions given below-

1. “Chief Justice” includes senior Judge;
2. “Court” means a Court constituted under this Act;
3. to “desert” together with its grammatical variations and cognate expressions, means to desert
4. the other party to marriage without reasonable cause and without the consent, or against the will, of such party;

“grievous hurt” means—

(a) emasculation;

(b) permanent privation of the sight of either eye;

(c) permanent privation of the hearing of either ear;

(d) privation of any member or joint;

(e) destruction or permanent impairing of the powers of any member or joint;

(f) permanent disfiguration of the head or face; or

(g) any hurt which endangers life;

“husband” means a Parsi husband;

“marriage” means a marriage between Parsis whether contracted before or after the commencement of this Act;

a “Parsi” means a Parsi Zoroastrian;

“priest” means a Parsi priest and includes Dastur and Mobed; and

“wife” means a Parsi wife”.

Applicability

• Marriage shall not apply if, in any degree of consanguinity that is both contracting parties relate to each other and share the same ancestry.
• Marriages are not valid in Parsi Law when marriages are not solemnized by the priest with two Parsi witnesses in attendance.
• A marriage shall not be accepted if the husband is 21 years old and the wife is 18 years old.
• When marriage is not valid as set out above, a child born out of that marriage will be illegitimate.

Marriage between Parsis

Requisites of a valid marriage

No Marriage shall be valid if— 

(a) the Contracting Parties, in the presence of two other Parsi witnesses other than that priest, have a relationship with each other at any level of consanguinity or affinity as defined in Schedule I; or 

(b) such marriage shall be solemnized by any Parsi form of a ceremony called “Ashirvad” by a priest or (a) any Parsi (if that Parsi has changed).

Punishment for bigamy

Any Parsi, who has been married during his or her life, is subject to the penalties provided for by the India Penal Code for an offence to return to marriage during the lifetime of a Parsi or not, without being legally divorced by a wife or husband or having his or her previous marriage declared invalid or dissolved.

Remarriage when unlawful

(1) No Parsi shall, in the lifetime of a wife or a husband, marry, whether or not a Parsi, except after he has divorced or married that wife or husband legally, or after marriage to that wife or husband has been declared null, or is void of or is dissolved and, if so, whether he or she has been legally made null and void or dissolved.

(2) Any marriage which does not agree to the above-stated provision will be considered void.

Registration of divorce

In the case of a court decree concerning divorce, nullity or dissolution, the Court shall transmit to the Registrar of Marriages within the jurisdiction referred to in Section 7 a copy of that decree for registration; the Registrar shall enter the same in a registry for the purposes of its preservation and shall apply the provisions of Part II which are applicable to Registrars and marriage registers,

The penalty under the Act:

• The Priest, in his or her opinion, shall be penalized by the single prison for a term of six months, or by a fine that may amount to two hundred rupees, or for both, on conviction of any priest who wilfully and knowingly celebrates marriage contrary to and in violation of Section 4.
• Any priest who fails to comply with any provision found in Section 6 shall be punished with a single sentence of imprisonment or with a fine extending to one hundred rupees or with both, on conviction of such an offence.
• Any other person to subscribe to, or authorize the certificate in compliance with section 6 who willfully fails to do so or fails to do so may, on conviction, be punished with a fine of no more than one hundred rupees for all such offences.
• Each person making, signing or attesting to a false declaration that he knows or thinks is false shall be punished for the period extending to 3 months by simple imprisonment or by an additional penalty extending into 1000 rupees, or by both; and if the act is equivalent in counterfeiting, as specified in the Indian Penal Code ( Act 45 of 1860).
• Any officer who has not entered such a certificate under paragraph 6 shall be disciplined for a period of one year or one thousand rupees or with all of them with simple imprisonment.
• Any person sealing the register, destroying it, or altering it in any section, unlawfully, or fraudulently shall be punished with imprisonment for a period of five years, which may extend to five years, of either category as specified in the Indian Penal code (45 of 1860), or, where he is registered, of the Indian Penal Code (45 of 1860).

Requisites of a valid marriage

Degree of prohibited relationship in Parsi law

The Parsi law forbids or discourages marriages between specific relatives through consanguinity and affinity, just like all other personal laws. Schedule I of the Act has a table that lists all the prohibited degrees of relationship. These connections are made through the parents, the children, the spouse or husband, the sister, and the brother.

The Ashirwad ceremony

Ashirvad simply translates to “blessing.” It has to do with calling on God to bless the union of spouses. The Parsi priest carries out the ritual. Dastur and Mobed are the two types of Parsi priests that are mentioned in Section 2(8). Any of them may perform “Ashirvad.” In addition to the priest, there is a requirement for two Parsi witnesses. Section 6 mandates that the priest performing the ceremony must certify the union using the template provided in Schedule II of the Act.

Legal age of marriage in Parsi law

The provision of legal age to marry in Parsi Law was added by the 1988 Amendment Act. At the time of marriage, the male must be at least 21 years old, and the female must be at least 18 years old. Even if they switch their religion or place of residence, the Parsis must abide by this marriage requirement. Now, if the agreement of his or her father or guardian was gained, as it was in the Act of 1965, the marriage of a Parsi who has not reached the required age could not be a lawful one.

Child born in a void marriage

This provision was also added by the 1988 Amendment Act. The child born of a void marriage is just as legitimate as if he had been the result of a valid marriage, even if the marriage was void because it violated the standards outlined in Section 3(1) of the Act. The clause applies both going forward and going back. The Parsi Act does not limit the inheritance rights of children of invalid marriages to parents solely, in contrast to Hindu law and the Special Marriage Act, 1954.

Parsi Matrimonial Courts

In each of the Presidency towns of Calcutta, Madras and Bombay, and in certain other locations within the territories of the various State government agencies, a Special Court shall be formed for the purposes of the hearing suits pursuant to this Act.

The Parsi Chief Matrimonial Court of Calcutta, Madras, or Bombay, as the case may be, is so founded in each Presidency-town.

• Chief Matrimonial Courts-The local limits of the Parsi Matrimonial Court competence shall correspond with the local limits of the High Court’s ordinary original civil competence, alimony and maintenance, both continuous and pendiente lite, shall be supported by a Chief Justice of the High Court or by any other judges of the Supreme Justice from time to time appointed by the Judge of that Matrimonial Court, and, when dealing with cases under this Act, by one [five delegates, except in relation to —

(a) interlocutory applications and cases of proceedings;

(b) care, protection and education of children and 

(c) matters and prosecutions other than routine trials of cases; and 

(d) other cases and other prosecutions.

• District Matrimonial Courts-The Parsi District Matrimonial Court of this place is the title of a court so constituted in a place other than President Itself. The geographical limits of the jurisdiction of the Tribunal shall correspond with the limits of the district in which it is located, subject to the provisions of section 21. (a) The Judge of the main Court of original civil jurisdiction shall be the Judge of that Marriage Court and in proceedings against cases under this jurisdiction. (b) alimony and care, both the pendente lite and the permanent one; (c) custody of children, care and training; (d) all matters and procedures other than the usual hearing of cases.

Any district which the State government finds inappropriate to include in the jurisdiction of any District Matrimonial Court because of the insufficient existence of the Parsi residents shall be included within the jurisdiction for those Territories in which that Court applies, under the jurisdiction of the Parsi Chief Matrimonial Court. Unless the delegate is dead, is over, refuses to give up, or is unable or unable to work, or ceases to be a Parsi, or is convicted of a violation under the Indian Penal Code (45 of 1860) or other law for a period 1 (including a moral tort), then and so often State Government can be considered as insolvent. 

The delegates chosen by the State Government pursuant to Sections 19 and 20 for assistance with the administration of the suits under this Act are, by the orders of the President Judge of the Court, taken from delegates designated by the State Government in accordance with Section 24, under proper rotation. 

Any suit brought in pursuant to this Act shall, at the time of commencement of proceedings, be brought to trial under its jurisdiction [or where a wedding has been solemnized in compliance with this Act]. When the accused has at that time left  (the jurisdictions protected by this law) the case shall be brought before the Court where the complainant and the accused have lived together for the last time.

The way the trials are conducted is one of the Act’s most distinctive elements. In addition to being presided over by a judge, the trial is also performed in the presence of ‘five delegates’ who serve as the jury, and with their aid. Although the word ‘jury’ is not used in the Act, the delegates’ function is somewhat comparable to that of a jury. In India, the jury system was eliminated in all procedures by 1960. With the exception of cases handled in accordance with this Act, the K.M. Nanavati case (1961) may have been the end of the jury system. Notwithstanding the fact that the Act’s jury system has been the subject of several discussions about its benefits and drawbacks, the focus of this part of the article is strictly on the approach and process that is often used to appoint delegates under the Act. Yet, it would be vital to comprehend the purpose and range of the delegates’ powers under the Act before moving on to analyse the procedure.

Role of the delegates and their functions

1. The Parsi Matrimonial Courts are designated as “Special Courts” by the Act and are established to hear cases. According to Sections 19 and 20 of the Act, the presiding Judge will preside over the trial of cases before these Special Courts, the Parsi Chief Matrimonial Courts (for the Presidency towns for Calcutta, Madras, or Bombay), or the Parsi District Matrimonial Courts (for districts or areas other than the Presidency towns).
2. Although the Act does not define the phrase “regular hearing of cases,” judicial rulings have construed the phrase to cover those matters that are under dispute by the relevant parties. They include matrimonial lawsuits governed by Section 30 (suits for nullity), Section 32 (divorce), Section 36 (restitution of conjugal rights), etc., where the factual basis must be established. Apart from the limitations stated in Sections 19 and 20, the Bombay High Court in the case of Minoo Rustomji Shroff v. Union of India (2005) has ruled that delegates are not required to support the presiding judge in non-contentious proceedings like divorce by mutual consent under Section 32-B of the Act.
3. It was observed by the Bombay High Court in the case of Rohinton Panthaky v. Armin R. Panthaky (2014) that the Presiding Judge’s and the delegates’ responsibilities are carefully segregated. According to Section 46 of the Act, all questions of law and procedure must be decided by the Presiding Judge, but the decision regarding the facts of the case must be made by a majority of the delegates present at the trial unless there is an equal division of opinion among the delegates, in which case the Presiding Judge will make the decision. Factual determinations are only required when they are in dispute between the parties. The Judge makes decisions on matters of law and procedure, but the delegates’ findings of fact are definitive and are not appellate in nature.
4. According to Section 27 of the Act, the delegates designated under Section 24 by the State Government shall be replaced by the delegates chosen under Sections 19 and 20 in accordance with the orders of the Presiding Judge of the court. The proviso of the Section allows each party to the marriage dispute/suit to challenge any two of the court-invited delegates without giving a reason before such delegates are chosen, and no delegate who has been so challenged can be chosen.

Power and procedure for appointing delegates

1. Under the Act, the State Government has sole authority to name delegates. According to Section 24 of the Act, the local Parsis must be given an opportunity of expressing their opinion in such a manner as the respective Government may think fit before the State Government appoints delegates in the Presidency towns and the district of the State under the jurisdiction of their respective Governments. Only Parsis may be appointed as delegates, and the names of those chosen must be published in the Official Gazette in accordance with subsection (2). Within the local bounds of a High Court’s ordinary civil jurisdiction, no more than thirty Parsis may be appointed, and no more than twenty Parsis may be appointed in a district.
2. One of the Act’s most noticeable features is the lack of any mechanism or procedure for delegate nomination, even though the State Government has the authority to do so. If one were to examine the overall structure of the Act and the Statement of Objectives and Reasons of Amendment Act 5 of 1988, the omission of such a provision would appear to be deliberate. It would be reasonable to presume that, in the absence of any system specified by the Act, the Parsi community members in a given area or jurisdiction are left to their own devices and are free to decide the process and manner in which the delegates are to be nominated. This leads to a lack of uniformity, therefore the process used would vary depending on the location.

One of the most prominent cases that dealt with the issue of delegate nominations was Delforooz Darius Dorabjee v. State of Maharashtra (2006) by the Bombay High Court. In this case, in Pune, the petitioner-wife had served the respondent-husband with a divorce petition. The petitioner filed a writ petition in the Bombay High Court while the matrimonial proceedings were still pending, asking for a writ of certiorari to overturn and annul a government notification dated 10-2-2005 that had appointed 11 people as delegates for a period of 10 years to assist in the adjudication of cases arising under the provisions of the Act in the Parsi Matrimonial Court in Pune. One of the additional requests was to reverse and annul the District Court of Pune’s order, which served as the Parsi Matrimonial Court’s order dated 13-7-2005, which overruled the petitioner’s objection to the notice of delegates’ appointments on the grounds that they intended to contest their appointment as a result of a government notification dated 10-2-2005. 

The Hon’ble High Court acknowledged that no regulations or guidelines establishing a process for the appointment of delegates have been issued pursuant to the Act, but emphasised the significance of providing the local Parsis with a forum to voice their opinions, as provided for in Section 24 of the Act. The Court’s reasoning is based on the freedom to express one’s viewpoint. Therefore, the ultimate inference that can be drawn from the Court’s reasoning is that the procedure followed need not necessarily be uniform in its application and may differ from place to place as long as the local Parsi community is given the opportunity to voice their opinion in the process of the appointment of delegates.

Matrimonial suits

In Parsi Divorce Act one of the partners may dissolve marriages by three means:

Nullity cases: Unless the consummation is unlikely because of natural causes, the marriage may be declared null or void.

Grounds for divorce:

1. Any married person may sue for divorce on one or more of the following grounds, under the Parsi Law Act of divorce: Marriage has not been consummated within 1 year of its officialization on grounds of the defendant’s deliberate failure to conduct it.
2. The defendant at the time of the marriage was mentally ill or of unsound mind and has been habitually so up to the date of the suit.
3. That the defendant was at the time of the marriage pregnant by some person other than the plaintiff: Provided that divorce shall not be granted on this ground, unless the plaintiff was at the time of the marriage unaware of the fact alleged, the suit has been filed within 2 years of the date of marriage, and marital intercourse has not taken place after the plaintiff came to know of the fact.

Reasons for marriage dissolution: When a husband or wife are separated from one another for a period of seven years.

The complainant shall take the co-defendant in any proceedings in relation to adultery divorce unless otherwise directed by the Court, and the Court shall, in all other proceedings in connection with which the adultery is supposed to have been committed, order the adulterer to pay the whole or part of the proceedings’ costs. If a husband has abandoned his cohabitation with his wife, deserted or, without a valid reason, has ceased to co-exist with his spouse, the party so deserted or with whom co-existence so stopped may, if satisfied with the truth of the claim in the plea, sue for reimbursement of his or her conjugal rights and the Court.

Children of the Parties

In any proceeding under the present Act, the Court may from time to time pass these interim orders in respect of the custody, maintenance and training of children under 6 years of age (till 18 years) in a definitive judgment which it finds fair and proper to marry the parent to which the case relates, and may, upon request, apply for the final order.

If it has been made to the Tribunal that a wife has a right to any possession or reversal of property, the Court may order a settlement of that right which it finds it fair to make of any part of that property not exceeding one-half of it for the benefit of thin any case in respect of which a decree of divorce or judicial separation for the adulteries of a wife is given.

Conclusion

The Parsis are an endogamous group of solely monogamous people. Marriage between priestly and non-priestly families was often avoided. Given these constraints and the small size of the group, it is not surprising that close family members are possible partners. Although the incidence of cross and parallel marriages is not common — less than 1% of all marriages in 1961, intergenerational marriages (e.g., between uncle and niece are allowed). A decline in marriages and a rising birth rate is the biggest challenge faced by society today.

Given these constraints and the group’s limited scale, it is not surprising that close families are potential partners. While cross and parallel marriages— less than 1% of all marriages in 1961— are rare, intergenerational marriages are allowed (e.g., between the uncle and the niece). The biggest problem facing society today is a decline in marriages and a rising birth rate. The two parents will inherit their sons and daughters. No primogeniture laws exist. Notwithstanding the above formal rules, affluent Parsis also leave their entire estates for charitable purposes, such as schools for endowment, hospitals, fire temples or the like. The emphasis on compassion and the sense of collective obligation in childhood for the poor and vulnerable find their expression in will and trust. Hence the ongoing division of wealth between the wealthy and the poor has taken place.

Frequently Asked Questions (FAQs)

What principles govern the Parsi Personal Laws?

Parsi law is the body of law that governs India’s Parsi Zoroastrian community. The legal tradition of the nineteenth century is essentially where Parsi law originates. The principles such as marriage, divorce, maintenance, alimony, child protection, etc. are some of the principles that govern the Parsi personal laws.

Why do the Parsis have their own distinct personal law?

The Zoroastrian religion is practised by the Parsis, who have different beliefs from the Hindus, Muslims, and Christians of India. They also have different personal rules.

A Parsi marriage is a type of contract that is performed through a ceremony known as “Ashirvad,” which literally translates to “blessings,” and is governed by the Parsi Marriage and Divorce Act, 1936. Since there is no formal adoption among Parsis, if a Parsi couple wishes to become parents, the child would not automatically be entitled to inherit anything. The Parsis have their own customs about marriage, so there was a need to pass a law that regulates it separately.

References

• https://indiacode.nic.in/bitstream/123456789/2476/1/a1936_____3.pdf
• https://indiacode.nic.in/handle/123456789/2476?view_type=browse&sam_handle=123456789/1362
• https://indiankanoon.org/doc/869363/
• https://indiankanoon.org/doc/519340/
• http://www.legalserviceindia.com/legal/article-1883-parsi-law-regarding-marriage-and-divorce-an-overview.html
• http://legislative.gov.in/actsofparliamentfromtheyear/parsi-marriage-and-divorce-act-1936

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: