Parsi Marriage and Divorce Act, 1936: A Comprehensive Guide

The Parsi Community are Zoroastrian Iranis originally from Persia who reached Indian shores around 800 AD to escape religious persecution.

The definition of the word ‘Parsi’ is highly contested in India. In the case of Sir Dinshaw Manockji Petit v. Sir Jamsetji Jeejeebhoy in 1909, the Bombay High Court ruled that a ‘Parsi’ is directly descended from the original Persian refugees or born to a Parsi father. This law has been overruled several times, particularly in 1950 when the court ruled that the 1909 definition was only an opinion and not legally binding. However, the perception among the community persists with the 1909 definition. In the case of Jamshed Irani v. Banu Irani, the term ‘Parsi’ could be used to refer to Iranian as well as Indian Zoroastrians.

The Parsi Marriage and Divorce Act of 1936 governs matrimonial unions between Parsis. Prior to the enactment of this legislation, the Parsi Marriage and Divorce Act of 1865 was in existence. The 1936 Act was further amended in 1988.

Marriages Between Parsis

Valid Parsi Marriage

As per Section 3 of the Parsi Marriage and Divorce Act, a matrimonial union shall be valid only under the following conditions:

• The marriage must be solemnised by a Parsi ceremony known as ‘Ashirvad’. The ceremony must be conducted by a priest in the presence of two other Parsi witnesses.
• The male must be 21 years of age, and the female must be 18 years of age.
• The two parties must not be related to each other by consanguinity.

If a child is born out of an invalid marriage, despite the nature of the union, the child shall be legitimate.

Remarriage and Bigamy

A Parsi shall be allowed to remarry only post the dissolution of a first marriage. Divorce proceedings must be completed, or the first marriage must be declared null and void before the subsequent wedding. As per Section 4 of the Act, if a marriage ceremony is performed before any of the aforementioned conditions, then such marriage shall be void. If a Parsi indulges in remarriage without adhering to the provisions of Section 4, then Sections 494 and 495 of the Indian Penal Code delineate punishment for the Act.

Registration of Marriage and Divorce

As per Section 6 of the Act, the officiating priest of every Parsi marriage shall certify all solemnised matrimonial unions. The certificate is to be signed by the priest, the husband, and the wife, and two other witnesses. The certificate is then sent to the Registrar along with a fee of Rs 2. Thereafter, the Registrar enters the certificate into the prescribed register.

A registrar is appointed by the Chief Justice of a High Court to perform prescribed duties within the ordinary civil jurisdiction of such a court. The registrar may also be appointed by the State Government. The Register of Marriages shall be inspected by any person at any reasonable time. According to Section 8, certified extracts from the register, which shall serve as evidence of the truth of statements, shall be provided by the Registrar on payment of a fee. All registrars send a true certified copy of every marriage certificate entered by him into the register, to the Registrar-General of Births, Deaths, and Marriages.

If a nullity, dissolution, or divorce as per the provisions of the Act has been finalised by a court of law, then a copy of the decree shall be sent to the Registrar of Divorces. The same shall be entered into the register of divorces by the Registrar, as per Section 10 of the Act.

Penalties for Various Offences

The different offences and their punishments as per Chapter II of the Act are as follows:

• Section 11 – A priest solemnising a second marriage without the legal dissolution of the first marriage shall be punished with a maximum fine of Rs 200, a maximum imprisonment of 6 months, or both.
• Section 12 – A priest who fails to certify a marriage shall be punished with a maximum fine of Rs 100, a maximum imprisonment of 3 months, or both.
• Section 13 – Persons responsible for attesting or subscribing marriage certificates will be punished with a maximum fine of Rs 100 if they fail to do so.
• Section 14 – Attesting or signing a false certificate shall be punishable with a maximum fine of Rs 100, or a maximum imprisonment of 3 months, or both. The offender shall also be liable for forgery under Section 466 of the Indian Penal Code.
• Section 15 – If a Registrar fails to enter a certificate into the register, then he/she shall be punished with a maximum fine of Rs 1000, or a maximum imprisonment of one year, or both.
• Section 16 – Destroying, fraudulently altering, or secreting the register shall be punished with a maximum fine of Rs 500 and a maximum imprisonment of 5 years if such offence is committed by a registrar. Someone who is not a registrar shall be punished with a maximum imprisonment of 2 years.

Parsi matrimonial courts

Chief and District Courts

As per Section 18 of the Parsi Marriage and Divorce Act, Special Courts known as Parsi Chief Matrimonial Courts shall be instituted in the Presidency towns of Madras, Bombay, and Calcutta. Such courts shall also be set up in the various states by the State Governments for hearing suits brought under this Act. The jurisdiction of these courts shall be the same as the ordinary original civil jurisdiction of the High Court. The Chief Justice or any other Judge of the High Court shall be the Judge of the Matrimonial Courts. Five delegates are to be appointed to aid the Judge.

In accordance with Section 20 of the Act, all courts other than the court located in presidency towns shall be known as Parsi District Matrimonial Courts. The jurisdiction of such courts shall be the limits of the district in which it is situated. The Judge of the court shall be the Judge of the principal Court of original civil jurisdiction of the district. Additionally, five delegates shall be appointed to aid the Judge.

The presiding judge of every court shall keep in his possession a unique seal of his/her court. All orders and decrees made by the court shall be sealed with such seal as per Section 23 of the Act.

Appointment of Delegates

The delegates appointed for aiding the adjudication of suits in matrimonial courts shall be appointed by the State Governments of the respective districts and presidency towns. The opinions regarding the same of the Parsis of the local areas shall be considered before making any appointments. Thirty delegates shall be appointed within the local limits of the civil jurisdiction of a High Court, and 20 delegates shall be appointed in the other districts. All such persons appointed as delegates must be Parsis and their names must be published in the official gazette, as per Section 24 of the Act.

Section 27 gives the parties to a suit in a matrimonial court the right to challenge any two delegates. A delegate who has been so challenged shall not be selected to attend the Court.

The tenure of every delegate shall be 10 years, and the delegates shall be eligible for reappointment. If the office of a delegate becomes vacant due to relinquishment, death, incapability, a conviction of an offence, or ceasing to be a Parsi, then a new delegate shall be appointed by the State Government. Section 25 of the Act mandates the same.

Legal practitioners practising in a High Court shall have the right to practise in any court instituted by this Act. Practitioners practising in a District Court shall practise in all Parsi District Matrimonial Courts.

Court Where Suits are to be Filed

As per Section 29 of the Act, suits are to be brought in the court within whose local jurisdiction the marriage was solemnised or the defendant resides. In cases in which the defendant no longer resides in a territory to which the provisions of this Act extend, the suit shall be instituted in a court with jurisdiction in the place in which the plaintiff and the defendant last resided together. The court may also grant a leave to the plaintiff to file a suit at the place where he or she resides.

Matrimonial Suits

Divorce, Dissolution, and Nullity

If a marriage is not consummated naturally, then such a marriage may be declared null and void at the instance of either party. A marriage may be dissolved if a spouse is continually absent from the marriage and has not been heard of as being alive for a period of 7 years.

As per Section 32 of the Parsi Marriage and Divorce Act, a spouse has the right to sue for divorce on certain grounds. The same grounds are applicable to a suit for judicial separation as well:

• The defendant was of unsound mind at the time of marriage and continues to be so. However, in such a case, the suit must be filed within 3 years from the date of marriage.
• The defendant has committed adultery, bigamy, an unnatural offence, rape, or fornication after the marriage. In such cases, the suit must be filed within 2 years of realisation of the fact.
• The defendant has forced his wife to enter into the prostitution industry.
• The defendant has inflicted cruelty and grievous hurt on the plaintiff.
• The defendant has voluntarily infected the plaintiff with a venereal disease.
• The defendant has deserted the plaintiff for 2 years.
• The defendant has converted to another religion and has ceased to be a Parsi. The suit must be filed within 2 years of realisation of the fact by the plaintiff.
• A magistrate has ordered the defendant to pay maintenance to the plaintiff, and the parties have not indulged in marital intercourse for a period of 1 year since such maintenance order.
• The defendant has been sentenced to a minimum of 7 years in prison for an offence under the Indian Penal Code and has already completed 1 year of such imprisonment.
• The defendant was pregnant by some other person at the time of the marriage. Divorce will not be granted on this ground if the plaintiff indulged in sexual intercourse with the defendant in spite of being aware of the fact, the plaintiff knew of the fact at the time of marriage, or the suit is filed after 2 years of marriage.
• The defendant refuses to consummate the marriage within 1 year of its solemnisation.
• The parties to a marriage have been living separately for 1 year and have mutually agreed that the marriage should be dissolved.

Section 37 of the Act entitles the defendant to make a counterclaim for any relief.

Restitution of Conjugal Rights

Section 36 of the Act details the restitution of conjugal rights. In cases in which a spouse was deserted without any lawful cause, the aggrieved party can sue for the restitution of conjugal rights. The court may decree such restitution if it is satisfied that the plaintiff should be granted relief. When the decree has been passed, the defendant must cohabit with the plaintiff within a year. If the defendant refuses to do so, then the plaintiff can file for divorce. Thus, non-pursuance of a decree of restitution of conjugal rights is a ground for divorce.

Alimony and Maintenance

As per Section 39 of the Act, the court may order the defendant to a suit to pay alimony pendente lite to the aggrieved party during the pendency of the suit. The alimony may include a monthly or weekly sum for subsistence, in addition to expenses of the suit. Such an order is passed by the court on the application of the plaintiff that they do not have an independent income to support themselves.

Section 40 of the Act details permanent alimony and maintenance. On the application by either spouse, the court may order a particular amount to be paid as maintenance to the aggrieved party. The sum to be paid is determined on the basis of the income and assets of both the defendant and the plaintiff. The payment shall be made as a monthly, periodical, or gross sum. At the instance of either party, in case of a change in circumstances of either spouse, the court may rescind or modify an order previously made. The order may also be modified if the party in whose favour the order was made has remarried, or in case of separation has been unfaithful.

Children of the parties

As per Section 49 of the Act, provisions regarding the maintenance, education, and custody of children below the age of 18 years whose parents are embroiled in a divorce suit, shall be included by the court in either the final decree or any other interim orders made. All such orders shall be suspended, modified, or revoked from time to time on the basis of application made after the final decree. Any application filed during a divorce suit must be disposed of within a period of 60 days.

In cases in which a judicial separation or divorce is granted on the ground of adultery of the wife, any property that the wife is entitled to may be settled for the benefit of the children of the marriage. According to Section 50 of the Act, if such a settlement is made, then it can be made only with respect to half of the property.

Conclusion

Thus, the Parsi Marriage and Divorce Act was instituted for governing matrimonial unions and their dissolution within the Parsi community. The Act provides provisions for maintenance, alimony, and custody of children. All orders passed by the Special Courts set up to decide the aforementioned matters are appealable at the High Court under whose jurisdiction the court lays. The appeal may be on the ground of a defect or substantial error in the investigation or procedure of the case which may have erred in the decision made, or on the ground of the decision being in contravention of any law. Therefore, the High Court has superintendence over all courts established under this Act.