DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
2016-17
B.A.,L.L.B.(Hons.)-IIIrd Semester

FAMILY LAW
FINAL DRAFT
PARSI MARRIAGE AND DIVORCE

Submitted To: Submitted By:

Mrs. Samreen Hussain Stuti Sinha

Astt. Professor (Law) Sec-B (Roll No.149)
 ACKNOWLEDGEMENT

I would like to extend my gratitude to the people who helped me in making this project. I
would like to thank Mrs. Samreen Hussain for helping me with the project format and
concept and also my friends who helped me in understanding it.

STUTI SINHA

SEM-III

ROLL NO. 149

 TABLE OF CONTENTS

INTRODUCTION .................................................................................................................................. 4
HISTORY AND ORIGIN....................................................................................................................... 5
MARRIAGE AND DIVORCE ............................................................................................................... 7
CASE LAWS ........................................................................................................................................ 10
PROBLEM WITH THE PARSI LAW ................................................................................................. 13
BIBLIOGRAPHY ................................................................................................................................. 15
 INTRODUCTION
Marriage as an institution which holds the universal criteria and acts as the foundation for any
type of family, marriages acts as the union between the men and women for a life time and
there are many ceremonies and different cultures prevails over institution of marriage in
India. Marriage is a basic social, cultural and legal institution which involves rights and
obligations by choosing of one’s own life partner even though it differs from culture to
culture. Parsis been originated from Country of Iran to India and there exist the need for the
particular community to deals with the marriage and its connected terms. Central
Government by notification in the Official Gazette has enacted law relating to the Parsis and
it called as the Parsi Marriage and Divorce Act, 1936. The Act extends to the whole of India
except the State of Jammu and Kashmir.

This project mainly focuses on the provisions that are there in the Parsi Marriage and Divorce
Act, 1936 and discuss about its different aspects and applicabilities. This paper will also
analyse the laws relating to the Parsi Marriage and Divorce and how far they are effective in
the modern day context. The lacuna in our law will be looked into and suggestion shall be
made regarding what should be done so as to make it equal for everyone. It will be limited in
scope only to Parsi marriage and divorce law.
 HISTORY AND ORIGIN
The Parsis originate from Iran They originated in the Persian province of “Pers”. In AD 636
when the Arabs invaded Persia and Caliph Omar defeated the Parsi King Yezdezind. They
sailed off in boats in search of a new land to escape persecution. Carrying with them their
sacred fire they landed twenty five miles south of Daman8. The head of the group implored
the local king to give them refuge with a promise that they would enrich his land.

The king laid down five conditions:

1. The Parsis should adopt the local language.

2. They should translate their holy texts into the local language.

3. Their women must change their dress and wear the local saree.

4. Their marriage ceremony should include the local rite of tying of the sacred knot.

5. They should surrender their arms.

They consented to all the five terms and in return the king granted them permission to build
their fire temples and allotted them an undeveloped country near Diu. They renamed the
place as NAVSARI which literally means New Sari' as it reminded them of a place they had
left behind in Persia. They settled down to agriculture and lived amicably with the Hindu
community. Due to the rigid caste system by the Hindus, assimilation was not possible and
hence they were able to maintain their separate and distinct identity.

Within this integrated community there are two sects- shensoys and kudmis.

After the island of Bombay was gifted to the king of England by the Portuguese, the parsis
started trickling in and were able to obtain various commercial contracts10. They were the
first to adapt to English education, new trading patterns, and later to commerce and industry.
They evolved as an important economic and political force during the colonial regime and
were able to negotiate for themselves a separate set of personal laws1.

1
Flavia Agnes, Family Law, Volume 1, Family Law and Constitutional Claims, (2011, 1st ed.)
The term parsi is not the same of the religious community. It of course carries some territorial
or racial significance. In order to be a parsi he or she must be a Zoroastrian2. The parsis are
listed under the head 'other communities'.

Parsi Law Association of 1855 in its mission succeeded in getting Parsi Marriage and
Divorce Act (Act No XV) 1865 and after various amendments the Parsi Marriage and
Divorce (Amendment) Act.1988 was formed.

2
Janak Raj Jai, Universal Handbook on Divorce Law and Procedures, (2010, 3rd ed.).
 MARRIAGE AND DIVORCE
Zoroastrianism states that marriage is a spiritual discipline and not a mere civil contract. The
Parsi laws acknowledge the conversion of a non-Parsi into Zoroastrianism. For the union to
be legal the marriage must be solemnized by the priest in an “Ashirvadt” (blessing)
ceremony. Besides, at least two Parsi witnesses must be present during the ceremony to
vouch for its legitimacy. The officiating priest must certify the wedlock on the certificate
given under Schedule II of the Parsi Marriage and Divorce Act. This certificate must also be
duly signed by the bride, bridegroom and the two witnesses. The said priest has to thereupon
send the certificate to the Registrar of the place where the marriage has been solemnized who
makes a formal record of the union.

As regards Parsis, the question is set at rest by the Parsi Marriage Act (Act X. of 65, s. 4) of
which provides that no Parsi shall contract a marriage while he or she has a wife or a husband
living. unless such husband or wife shall have been divorced.

Section 5(2) of the Act states:

1. The accused had already been married to some person3.

2. That the person to whom he was married was still living.

3. That the accused married another person.

4. That the second marriage was void by reason of its taking place during the lifetime of the
first spouse.

In addition to the above four it is to be also proved that the accused when marrying the
second person concealed from such person the fact of the former marriage.

The Parsi Marriage and Divorce Act, 1936 lays down that a Parsi below the age of 21 years
can marry only with the consent of the guardian of the person. But by amending Act of 1988,
it has been laid down that a girl who has not completed the age of 18 years and a boy who has
not completed the age of 21 years cannot marry. It is also laid down that marriage below
these ages is void. The provision for guardianship has been abolished4.

3
Birbul vs Savan 1874 Pr No. 4 of 1874.
4
Paras Diwan, Laws of Marriage and Divorce, (2011, 5th ed.).
If a Parsi performs a marriage with a non-Parsi such a marriage is invalid under the act.
Among the Parsis there are no sects or denominations and hence no inter caste or inter sect
marriages.

Parsi Marriage and Divorce Act, 1936 lays down prohibition to marriage on the basis of
consanguinity and affinity in Schedule Ito the Act.

Under this act. a marriage is void:

i. If parties are within prohibited relationship of consanguinity or affinity.

ii. If necessary formalities of marriage have not been performed.
iii. If any party to marriage is below requisite age of marriage.
iv. Either party to the marriage was impotent.

The provision under this act, is also similar with this modification that period of limitation
from that date of marriage for filing the suit for divorce on this ground is two years and not
one year as under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.

The Act laid down grounds for divorce or nullity as insanity, non-consummation owing to
physical causes, absence or desertion for seven years, adultery and cruelty. While almost all
other grounds of divorce remained the same, the period of desertion was brought down from
7 years to 3 years and later to 1 year. A Parsi husband or wife may file a suit to dissolve the
marriage tie under section 31 of this act. The marriage of such husband or wife shall, with
compliance of the requirements contained under the provisions of the said section be
dissolved. Parties may sue for divorce on any one or more of the grounds provided under
section 32 of the act. When a court passes a decree for divorce, the court shall send a copy of
the decree for registration to the registrar of marriages within its jurisdiction appointed under
section 7 of the act. The registrar shall enter the same in a register to be kept by him for the
purpose, and the provisions of part II applicable to the registrars and registers of marriages
shall be applicable, so far as may be, to the registrars and registers of divorces.

Continuous absence for seven years is a ground for divorce. The presumption under this
section is with reference to the filing of the proceeding for dissolution of marriage and not
with reference to any particular date5.

5
Surjit Kaur vs Jhujhar Singh, AIR 1980, P & H 274.
Three conditions are to be imposed6. Firstly, the plaintif should be ignorant of the fact. If he
knows the fact of pregnancy and still marries, it is case of voluntary consent' and doctrine of
volunti non fit injuria'. Secondly, the suit should be instituted within two years of the date of
marriage. Thirdly after the knowledge of pregnancy there should be no cohabitation. If there
still cohabitation, divorce cannot be granted on the doctrine of condonation7.

Under this act, mutual consent and irretrievable breakdown of marriage are not grounds of
divorce through a decree for judicial separation may be followed by a decree of divorce if the
parties have not had marital intercourse for the statutory period since such decree or order. It
is to be noted that section 32B providing for mutual consent for divorce has been inserted in
this Act under this particular Act.

Question whether constructive desertion has ended is to be decided by interference drawn

from the facts. Thus, such decision on the facts is to be disposed of finally by the delegates8.

‘Causing of grievous hurt' under the Parsi Marriage and Divorce Act, 1936 is ground for
divorce. Proviso to clause (dd) of this act lays down that in a petition for divorce on the
ground of cruelty, the court has discretion to pass a decree of divorce or judicial separation.

Rape and unnatural offences are ground of divorce for both husband and wife.

If at the time of marriage one of the parties to the marriage was of unsound mind and
continued to be so up to the date of presentation of the plaint, the plaintiff can obtain a decree
of dissolution of marriage provided he or she had filed the suit within three years from the
date of marriage. But if a Parsi knowingly marries an insane person, marriage cannot be
avoided. Post marriage insanity of a spouse is not a ground for divorce.

Parsi divorce rates are higher than those for other Indian communities because, when
compared to Hindu law, Parsi law has always made divorce easier. Remarriage after the death
of a spouse is permitted for both sexes9. Leprosy is not a ground for divorce in Parsi law
unlike that in Muslim law and Hindu Law.

6
Nand Kishore vs Munnibai, AIR 1975 MP 45.
7
S. Krishnamurti Aiyar, Law of Marriage And Maintainance Separation And Divorce, 3rd Edition.
8
Dina Dinshaw Merchant vs Dinshaw Ardeshir, AIR 1970 Bom 341.
9
http://www.everyculture.com/South-Asia/Parsi-Marriage-and-Family.html.
 CASE LAWS
In Robasa Khanum vs Khodad Bomanji Irani10, a parsi woman converted to Islam claimed
her marriage was dissolved; professing different religions need not prevent a happy marriage,
interpreted her action as a unilateral repudiation of marriage, and upheld the sanctity of the
Zoroastrian vow. They entered into a solemn pact that the marriage could be monogamous
and could only be dissolved according to the tenets of the Zoroastrian religion. It would be
patently contrary to justice and right that one party to a solemn pact should be allowed to
repudiate it as a unilateral act. It would be tantamount to permitting the wife to force a
divorce upon her husband although he may not want it and although the marriage vows which
both of them have taken, would not permit it.

It may be that in ignoring the earlier authorities Sir James Wilde was relying upon the
decision of the Judicial Committee in Aniasser Cursepe v. Peroseboye which came before the
Board on appeal from the Supreme Court of Bombay11. In reversing the decision of Perry C.J.
the Judicial Committee held that the ecclesiastical side of the Bombay Supreme Court had no
jurisdiction to grant restitution of conjugal rights in respect of a Parsi marriage.

In the process of emulating English statutes, certain biases against women crept into
matrimonial laws. Despite the enactments, in matters not covered by the statute, either the
English common law or principles of justice, equity, and good conscience continued to be
applied to parsis12.

In an important case involving the head of the Parsi Anjuman of Bombay, Sir Dinsha Petit,
and Sir Jamsetji Jeejeebhoy13, decided in 1908, the courts ruled that there is no conversion
among the parsis.

In order to prevent the Parsi trust property and fire temples from slipping away from the parsi
fold in Sakalt Vs Bella14, it was ruled that converts to Zorastrainism and children born to a
Parsi woman who has married a non-Parsi are not Parsis. In Maneka Gandhi vs Indira
Gandhi15, it was held that Sanjay Gandhi who was born of a parsi father and a hindu mother

10
[1946] 48 BOMLR 864.
11
AIR 1943 Bom 32.
12
Mithibai Vs Limji N.Banaji, ILR 5 Bom 506.
13
Dinsha Petit Vs Jamsetii Jeejeebhoy, (1909) ILPR 33 Bom 509.
14
1925 ILR 53 IA 42.
15
AIR 1984 Del 428.
was a Hindu. Any Indian parsi who does not subscribe to Zoroastrianism is not a parsi by
religion.

An Iranian who temporarily resides in India and is registered as a foreigner and whose
domicile is a Parsian domicile does not become Parsi merely because he is a Zoroastrian. As
he is not a Parsi, this Act does not apply to him. He cannot be married under this Act. The
Parsi Chief Matrimonial Court set up under this Act cannot have any jurisdiction over him16.

Grounds of divorce were further liberalized and divorce by mutual consent was introduced.
The disparity between the rights of legitimate children was abolished.

The following aspects need to be highlighted in the context of parsi law reforms:

1. At each juncture, the process of reforms was initiated from within the community and a
broad consensus was reached before the bills were introduced. So, finally when the bills were
presented to the legislature, they were unanimously passed without much debate.

2. Women from the community were conspicuously absent from the discourse.

3. Although gender justice was the stated agenda, the motive of reform seems to be dual.

i. Maintaining a separate community identity and once this was achieved

ii. Ensuring that the laws do not lag far behind the dominant ideology.

1. The premise that gender equity was not the primary object is substantiated by the retention
of certain outdated discriminatory notions inherited from the British statutes in 1865.

2. The debate in parliament when the bills were enacted was cursory. The members did not
concern themselves with the implications of the bill on parsi women. The debate was
confined to two spheres:

i. Since parsis have willingly modified their laws. it is time to enact a uniform civil
code.
ii. Praises to the parsi community are an enlightened and progressive community and
thereby insinuating that other communities are backward and reactionary. The Act
also retained the sexist provisions.

16
Sanvar Menvan Vs Merwan, Rashid AIR (1951) Bom 14.
In 1933, the council of the Parsi Central Association submitted a draft bill for the opinion of
the Parsi public to amend the Parsi law of succession. The main objective was to improve the
position of widows and daughters under the statute and the allotment of share to parents.

The Parsi Marriage and Divorce Act of 1865 had become outdated when from 1865 to 1930
the status of women in England was radically transformed through various statutes. So the
Parsi Central Association took up the question of reforms in 1923 and a subcommittee was
appointed to suggest suitable changes. The Parsee laws revision Subcommittee submitted its
report in 1927. The bill was circulated for public opinion. Based on the various views
expressed, a draft of the proposed act was prepared and circulated which had the approval of
the illustrations members of the parsi community.

A bill was introduced into the council of state in 1935 by Sir Pheroze Sethna. The select
committee reported to the council of state the same year and the bill was passed on 13th
March, 1936. The Federal Assembly considered the bill in April 1936. The reforms expanded
the scope of dissolving marriage by introducing several new grounds — non consummation
of marriage, insanity, pre-marriage pregnancy, grievous hurt and desertion.
 PROBLEM WITH THE PARSI LAW
Personal laws are as conceptually flawed as the UCC since they deny to women the right of
self-determination, autonomy and access to resources. Historically, reform and codification
of Parsi law eroded some of the customary variations and diversities within communities.
Many are politically motivated. As such these laws do not allow any choice to individuals
who may be non-believers or dissenters, or believers who do not wish to be governed by
discriminatory and unjust laws which are violative of their fundamental rights. Where
community rights infringe the rights of women and other groups within the community, they
are to be rejected. I feel that the focus must be shifted un-ambiguously to working towards
the non-negotiable and inalienable rights of citizens. The most different provisions are ruling
the parsi marriage: minority and insanity are not a bar to the maniage. Indian Parsees argue
that without separate personal law systems the result would be a uniform civil code that
would inevitably reflect mainly Hindu interests.

In the Shah Bano case17, judges said that a common civil code will help the cause of national
integration by removing disparate loyalties in laws which have conflicting ideologies. In the
recent Supreme Court judgment on Sarla Mudgal vs Union of India18, the judges repeated this
and further held: in the Indian Republic there was to be only one nation — Indian nation —
and no community could claim to remain a separate entity on the basis of religion. They
added: 'The Hindus and Sikhs have forsaken their sentiments in the cause of national unity
and integration; some other would not..."

We also see the limited success of the historical process of reforms in Parsi laws and its
failure to abolish patriarchal privileges. Proposals for reform are either watered down or
curtailed or are simply not enabling for women.

It is recommended that a new section be inserted in the HMA to the effect that a married
person governed by it cannot marry again even after changing religion unless the first
marriage is dissolved or declared null and void in accordance with law and if such a marriage
is contracted it will be of no legal effect and attract application of Sections 494 and 495 of the
IPC. The commission has recommended that similar provisions to be inserted the Parsi
Marriage and Divorce Act 1936.

17
(1985) AIR 945.
18
AIR (1995) SC 153.
The Parsi Marriage and Divorce Act lays down that a person below the marriageable age can
marry with the consent of the guardian. However it is a glaring defect that under no personal
law is a child marriage void19.

The Parsi Marriage and Divorce Act (1936) came under the purview of seminal amendments
which have proved to be milestones in the personal law reforms. Marriages between
consanguine and affine relatives are deemed legal and have become a common practice. In
fact parallel-and cross-cousin marriages as well as inter-generational marriages are legally
permitted. A Parsi who marries outside the community is also not bared from practicing
Zoroastrianism. Besides, the child of such wedlock is cannot be refused from receiving the
Parsi thread ceremony20.

19
http://lex-warrier.in/2013/11/marriage-divorce-parsi-law/#identifier_0_4742.
20
http://www.lawisgreek.com/legal-formalities-of-a-parsi-marriage.
 BIBLIOGRAPHY
 Flavia Agnes, Family Law, Volume 1, Family Law and Constitutional Claims, (2011,
1st ed.).
 Janak Raj Jai, Universal Handbook on Divorce Law and Procedures, (2010, 3rd ed.).
 Paras Diwan, Laws of Marriage and Divorce, (2011, 5th ed.).
 S. Krishnamurti Aiyar, Law of Marriage And Maintainance Separation And Divorce,
3rd Edition.
 http://www.everyculture.com/South-Asia/Parsi-Marriage-and-Family.html.
 http://lex-warrier.in/2013/11/marriage-divorce-parsi-law/#identifier_0_4742.
 http://www.lawisgreek.com/legal-formalities-of-a-parsi-marriage.