This article is written by
currently pursuing B.B.A. LLB from Symbiosis Law School, Noida. This is an exhaustive article which deals with the Parsi Marriage and Divorce, 1936.
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
. The same will be discussed below in the given article.
The (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. , was repealed by the aforementioned Act, which went into effect on June 22, 1936, and amended the law governing marriage and divorce among Parsis.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
Parsi Marriage and Divorce Act 1936
Important definitions
states the important definitions given below-
- “Chief Justice” includes senior Judge;
- “Court” means a Court constituted under this Act;
- to “desert” together with its grammatical variations and cognate expressions, means to desert
- 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;
(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.
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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 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:
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 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 .
- Any priest who fails to comply with any provision found in 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 .
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.
(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.
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 I ) 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 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 , 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 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 . (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 I ) 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 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 , 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.
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:
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.
Nullity cases: Unless the consummation is unlikely because of natural causes, the marriage may be declared null or void.
Grounds for divorce:
- 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.
- 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.
- 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.
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.
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.
References
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