Ipsita Mishra, NLU, Odisha
Marriage is a universal human institution which has formed the foundation of the family ((New World Encyclopedia, Available At: Http://Www.Newworldencyclopedia.Org/Entry/Marriage (Last Visited On April 28, 2010).)). It usually means a voluntary union for life of one man with one woman to the exclusion of others ((Hyde V. Hyde, (1866) Lr 1 P&D 130.)). While the traditions surrounding marriage ceremonies, the rights and obligations of marriage, the way of choosing one’s marriage partner, and even who all are permitted to marry may differ from culture to culture ((Supra Note 1)). In the case of Shaw v. Gould ((Shaw V. Gould, (1868) L.R. 3 H.L. 55)), Lord Westbury said ((J.H.C. Morris, The Conflict Of Law ( 2005).))Marriage is the very foundation of civil society, and no part of law and institutions of a country can be of more vital importance to its subjects than those which regulate the manner and the conditions of forming, and if necessary of dissolving, the marriage contract ((Rajat Dosi, Validity Of Marriage And Conflict Of Laws, (1999,2nd ed).)).’ Marriage is a basic social and legal institution ((Kiran Singh ,Protection Of Innocent Victims Of Matimonial Offences , CrLJ, September 2012, Vol 118)). This paper will analyze the laws relating to the marriage and divorce in Parsi law and how far they are effective in the modern day context. The lacunas in our law will be looked into and suggestions shall be made as to what needs to be incorporated in our law so as to make it equal for everyone. It will be limited in scope only to Parsi law marriage and divorce.
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 Daman ((framjee 1858:10)). 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:
- The parsis should adopt the local language
- They should translate their holy texts into the local language
- Their women must change their dress and wear the local saree
- Their marriage ceremony should include the local rite of tying of the sacred knot
- They should surrender their arms ((Cabinetmaker 1991: 2-3)).
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 contracts ((Framjee 1858 ; Cabinetmaker 1991)). 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 laws ((Flavia Agnes ,Family Law, Volume 1, Family Laws And Constitutional Claims, (2011,1st ed).)).
The term parsi is not the same of the religious community ((Section 2(7).)). It of course carries some territorial or racial significance. In order to be a parsi, he or she must be a Zoroastrian ((Janak Raj Jai ,Universal Handbook On Divorce Law And Procedures, (2010,3rd ed).)). 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 ((Shiv Sahai Singh ,Unification Of Divorce Laws In India, (1993).))and after various amendments, the Parsi Marriage and Divorce (Amendment) Act,1988 was formed ((The Act: The Gazzette of India,part II, S.1 Exty. No 6(29.3.1988).)).
Marriage & 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 ‘Ashirvad’ (blessing) ceremony. Besides, at least two Parsi witnesses must be present during the ceremony to vouch for its legitimacy ((Section 3)). 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 ((Section 6, 7)).
As regards Parsis, the question is set at rest by the Parsi Marriage 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 ((Sir Frederick Robertson , The Relations Between The English Law And The Personal Law Of Indians In England With Special Reference To The Marriage Law, Comp. Legis. & Int’l L. N.S. 242 1918)).
Section 5(2) of the Act states
- The accused had already been married to some person ((Birbul Vs Sawan, (1874) Pr No 4 Of 1874)).
- That the person to whom he was married was still living ((Lumley, (1869) Lr Iccr 196)).
- That the accused married another person ((Kanwal Ram Vs Himachal Pradesh Admin, AIR 1966 Sc 614)).
- that the second marriage was void by reason of its taking place during the lifetime of the first spouse (( Pr No 43 Of 1882)).
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 ((1982 Crlj 136 Mad)).
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 ((Section 3(C).)). 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 abolished ((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 I to 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 ((Section 30)).
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 ((Section 3-17)).
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 date ((Surjit Kaur Vs Jhujhar Singh, AIR 1980 P & H 274)).
Three conditions are to be imposed ((Nand Kishore Vs Munnibai, Air 1979 Mp 45)). Firstly, the plaintiff 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 condonation ((S.Krishnamuthi Aiyar ,Law Of Marriage And Maintainanace Separation And Divorce,3rd Edition)).
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 ((Jorden Diengdeh vs S.S.Chopra AIR 1985 SC 935)). It is to be noted that section 32B providing for mutual consent for divorce has been inserted in this Act under this particular Act ((Section 48)).
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 delegates ((Dina Dinshaw Merchant vs Dinshaw Ardeshir AIR 1970 Bom 341)).
“Causing of grievous hurt” under the Parsi Marriage and Divorce Act, 1936 is ground for divorce ((Section 32(e).)). 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 ((Section 32)).
Rape and unnatural offences are ground of divorce for both husband and wife ((Section 32(a).)).
If at the time of marriage one of the parties to the marriage was of unsound mind and continued to be so upto 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 ((Secton 32(b).)). 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 sexes ((Available at http://www.everyculture.com/South-Asia/Parsi-Marriage-and-Family.html)). Leprosy is not a ground for divorce in Parsi law unlike that in Muslim law and Hindu Law.
In Robasa Khanum vs Khodad Bomanji Irani (( 48 BOMLR 864)), 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 ((Kumkum Sangari, Personal Laws, Social Scientist, Vol. 27, No. 5/6 (May – Jun., 1999), pp. 17-61)). 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 ((The Parsi Marriage and Divorce (Amendment) Act, 1988 (No. 5 of 1988), 25 March 1988.
(Reported in Islamic and Comparative Law Quarterly, Vol. 8, No. 4, 1988, pp. 342-344; Digest of Central
Acts, Vol. 25, No. 1, 1988, pp. 18-20.).)).
It may be that in ignoring the earlier authorities Sir James Wilde was relying upon the decision of the Judicial Committee in Ardasser Cursetjee v. Peroseboye which came before the Board on appeal from the Supreme Court of Bombay ((AIR 1943 Bom 32)). 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 (( 6 M.I.A. 348.)).
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 parsis ((Mithibai Vs Limji N.Banaji, ILR 5 Bom 506)).
In an important case involving the head of the Parsi Anjuman of Bombay, Sir Dinsha Petit, and Sir Jamsetji Jeejeebhoy ((Dinsha Petit Vs Jamsetji Jeejeebhoy, (1909) ILPR 33 Bom 509)), 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 Bella ((1925 ILR 53 IA 42)), 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 Gandhi ((AIR 1984 Del 428)), it was held that Sanjay Gandhi who was born of a parsi father and a hindu mother was a Hindu. Any Indian parsi who does not subscribe to Zoroastrianism is not a parsi by religion ((Jstice M.L.Jain, ‘Can a parsi be not a Hindu?’ AIR 1985 Jour 81)).
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 him ((Sarwar Merwan Vs Merwan Rashid AIR 1951 Bom 14)).
Grounds of divorce were further liberalized and divorce by mutual consent was introduced. The disparity between the rights of legitimate children was abolished ((M. Shabbir and S. Manchanda, Parsi Law in India ( 1991).)).
The following aspects need to be highlighted in the context of parsi law reforms:
- 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.
- Women from the community were conspicuously absent from the discourse
- 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
- 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.
- 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.
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 pregnanacy, 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 ((Reversing the Option: Civil Codes and Personal Laws, Economic and Political Weekly, Vol. 31, No. 20 (May 18, 1996), pp. 1180-1183)). The most different provisions are ruling the parsi marriage: minority and insanity are not a bar to the marriage ((Csandd Antal, Legal Transplantation In India,(2009).)). Indian Parsees argue that without separate personal law systems the result would be a uniform civil code that would inevitably reflect mainly Hindu interests ((J. Hinnells, “Parsi Attitudes to Religious Pluralism“, in Howard G. Coward, ed.,Modern Indian Responses to Religious Pluralism (Albany, New York, 1987).)).
In the Shah Bano case ((1985 AIR 945)), 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 India ((AIR 1995 SC 153)), 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 ((Reversing The Option: Civil Codes And Personal Law, Economic And Political Weekly, Vol. 31, No. 20 (May 18, 1996), Pp. 1180-1183)).
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 be inserted the Parsi Marriage and Divorce Act 1936 ((Section 4)).
The Parsi Marriage and Divorce Act ((Section 3(D).))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 void ((Probal Bhaduri ,Women: Age At Marriage, (1992).)).
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 can not be refused from receiving the Parsi thread ceremony ((http://www.lawisgreek.com/legal-formalities-of-a-parsi-marriage)).