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Parsi Law Regarding Marriage And Divorce. An overview

The Parsi Marriage is also regarded as a contract through a religious ceremony of Ashirvad is necessary for its validity. Ashirvad literally means “blessings”. A prayer or divine exhortation to the parties to observe their marital obligations with faith is necessary. The Parsi Marriage and Divorce Act at present in force were passed in 1865. Since then circumstances have greatly altered and to some extent there has also been a change in the sentiments and views of the Parsi community.

Hence a necessity for some change in the law has been felt for years. The Parsi Central Association took up the question in 1923 and appointed a Sub-Committee to suggest amendments. The Sub-Committee submitted a report which the Association got printed and circulated for opinion to most other Parsi Associations as well as prominent members of the community both in Bombay arid outside. Many suggestions were made, and among them by the Trustees of the Bombay Parsi Panchayat who had the advantage of seeing the suggestions of others.

he Central Association adopted the suggestions of the Panchayat Trustees and reprinted the whole and again circulated it. Fresh suggestions were thereupon made in the press, on the platform, by associations and individuals.

These were fully considered by the Trustees as well as the Association and the present draft is the result. On the whole it represents, the views of the great majority of the community, and has been approved by leading Parsis like Sir Dinshaw E. Wacha and the late Rt. Hon. Sir Dinshaw F, Mulla (Gazette of India, 1934, Part V).

An Act to amend the law relating to marriage and divorce among Parsis. Where it is expedient to amend the law relating to marriage and divorce among Parsis. Now Parsis are governed in the matters of marriage and divorce by the Parsi Marriage and Divorce Act, 1936. The Act is divided into six chapters and deals with marriage between Parsis, matrimonial courts, matrimonial suits, children of the parties and miscellaneous provisions. As per Section 2(7) of the Act a ‘Parsi’ means a Parsi Zoroastrian.

Marriage:

Chapter II of the Act deals with marriage between Parsis.

Essentials:

Section 3 gives the requisites to validity of Parsi Marriages. According to this section no marriage shall be valid if:

  1. The contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I.
  2. Such marriage is not solemnized according to the Parsi form of ceremony called “Ashirvad” by the priest in the presence of two Parsi witnesses other than such priest.
  3. In the case of any Parsi (whether such Parsi has changed his or her religion or domicile or not) who, if a male, has not completed twenty-one years of age and if a female, has not completed eighteen years of age.

However, legitimacy has been conferred by sub-section (2) which says that:
“Notwithstanding that a marriage is invalid under any provisions of sub-section (1), any child of such marriage, who would have been legitimate if the marriage had been valid, shall be legitimate”.
Remarriage when unlawful: Under Section 4 of the Act, no Parsi (whether such Parsi has changed his or her religion or domicile or not) shall contract any marriage under this Act or any other law in the lifetime of his or her wife or husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolved and if the marriage was contracted with such wife or husband under the Parsi Marriage and Divorce Act, 1865, or under this Act, except after a divorce, declaration or dissolution as aforesaid under either of the said Acts. Every marriage contracted contrary to the above provisions shall be void.

Punishment for Bigamy:

As per Section 5 of the Act, every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or husband, or without his or her marriage with such wife or husband having legally been declared null and void or dissolved shall be subject to the penalties provided in Sections 494 and 495, IPC for the offence of marrying again during the lifetime of a husband or wife.

Registrar: For the purposes of this Act, Section 7 prescribes that a Registrar shall be appointed within the local limits of the ordinary original civil jurisdiction of a High Court by the Chief Justice of such court, and without such limits by the State Government.

Certificate of Marriage:

Every marriage contracted under this Act shall, immediately on the solemnization thereof, be certified by the officiating priest in the form contained in Schedule II. The certificate shall be signed by the said priest, the contracting parties and two witnesses present at the marriage and the said priest shall thereupon send such certificate together with a fee of two rupees to be paid by the husband to the Registrar of the place at which such marriage is solemnized. The Registrar on receipt of the certificate and fee shall enter the certificate in a register to be kept by him for that purpose and shall be entitled to retain the fee.

The register of marriage mentioned in Section 6 shall, at all reasonable times, be open for inspection, and certified extracts there from shall, on application, be given by the Registrar on payment to him by the applicant of two rupees for each such extract. Every such register shall be evidence of the truth of the statements therein contained.

According to Section 9 of the Act, every Registrar, except the Registrar appointed by the Chief Justice of the High Court of Judicature at Bombay, shall, at such intervals as the State Government by which he was appointed from time to time directs, send to the Registrar General of Births, Deaths and Marriages for the territories administered by such State Government, a true copy certified by him in such prescribed form of all certificates entered by him in the register of marriages.

Formal irregularity not to invalidate marriage:

As per Section 17 of the Act, no marriage contracted under this Act shall be deemed to be invalid solely by reason of the fact that it was not certified under Section 6, or the certificate was defective, irregular or incorrect.

Penalties: In Sections 4, 12, 13, 14, 15, 16 penalties have been provided for solemnizing marriage contrary to Section 4, neglect of requirements of Section 6, omitting to subscribe and attest certificate, issuing false certificate, failing to register certificate, secretly destroying or altering register.


Divorce:

Chapter IV of the Act deals with matrimonial suits. Section 30 lays down that in any case in which consummation of marriage is from natural causes impossible, such marriage may, at the instance of either party thereto, be declared to be null and void.

Dissolution Suits:

Under Section 31 of the Act, if a husband or wife shall have been continually absent from his or her wife or husband for the space of seven years and shall not have been heard of as being alive, within that time by those persons who would have naturally heard of him or her had he or she been alive, the marriage of such husband or wife may at the instance of either party thereto be dissolved.

Grounds:

Any marriage may be dissolved on a suit by any person on any one or more of the following grounds, namely:

  1. That the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it
     
  2. That the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit. The plaintiff under this ground has to prove that the plaintiff.
    (i) Was ignorant of the fact at the time of marriage.
    (ii) Has filed the suit within three years from the date of marriage.
     
  3. That the defendant has been incurably of unsound mind for a period of two years or more immediately preceding the filing of the suit or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the plaintiff cannot reasonably be expected to live with the defendant.
     
  4. That the defendant was at the time of the marriage, pregnant by some person other than the plaintiff. But, divorce shall not be granted on this ground unless:
    (i) The plaintiff was at the time of the marriage ignorant of the fact alleged.
    (ii) The suit has been filed within two years of the date of marriage.
    (iii) Marital intercourse has not taken place after the plaintiff came to know of the fact.
     
  5. That the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence. But, divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact.

Divorce by Mutual Consent:

Section 32-B added by the Amendment Act of 1988 provides for divorce by mutual consent.

It says that, subject to the provisions of the Act, a suit for divorce may be filed by both the parties to a marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. A suit under this section can only be filed after one year has lapsed since the date of the marriage. The court after hearing the parties and after making such inquiry as it thinks fit to ascertain that the consent of either party to the suit was not obtained by force or fraud, pass a decree declaring the marriage to be dissolved with effect from the date of decree.


Reference:
  1. Hastings, James, John A. Selbie, Encyclopedia of Religion and Ethics, Part 16, Kessinger Publishing Ist Edn., 2003, ISBN 978-0-7661-3693-9
  2. J. J. Modi, The Religious Ceremonies and Customs of the Parsees, Bombay, 1922
  3. Parsi Marriage And Divorce Act 1936, https://indiacode.nic.in/handle/123456789/2476?view_type=browse&sam_handle=123456789/1362
  4. https://www.toppr.com/guides/legal-aptitude/family-Law-I/parsi-marriage-and-divorce-act/
  5. https://lawsisto.com/Read-Central-Act/1554/PARSI-MARRIAGE-AND-DIVORCE-ACT-1936

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