Legal legacy

"The Parsis are the light and soul of litigation in Bombay and in one shape or the other they are connected with the majority of suits in the (Bombay) High Court.” Mitra Sha­ra­fi quotes from a 1911 entry in the diary of A. J. C. Mistry, ma­na­ging clerk of Wadia Gandhy and Company, the pro­mi­nent Bombay firm of advocates and solicitors. A PhD student from Princeton University, the Iranian-Canadian Sharafi is working on her history thesis whose interim title is "Zoroastrians and the Law: the Parsi identity debates (1900-1930).”

Researching her subject in the Bombay High Court from Febru­ary to June 2004, Sharafi found case papers, comments on judg­ments and judges’ notebooks — "more material than expected” — in the reference room in the Court’s original side. Thirteen notebooks of Justice Dinsha Daver, the first Parsi judge to be appointed to the High Court in 1906, became her major focus as she said she was looking for Parsi vs Parsi cases and most such cases in Daver’s time came to him until he died, in harness, on July 29, 1916. According to Sharafi between 1908 and 1924, 40 to 50 percent of solicitors were Parsis. 1925 onward she found that one-third of all advocates practicing in the High Court were Parsis. Surveying the Indian Law Reports between 1900 and 1930 she says she found almost 18 percent of reported cases from Bombay involved Parsi litigants.

Sharafi has found the long discussions on "Who is a Parsi?” very well documented. "The period between 1900 and 1930 is framed by the Petit vs Jejeeebhoy case and the Privy Council Judgment on Bella,” she notes, informing us of three other cases besides these two landmarks. In 1903, (founding partner of Wadia Gandhy and company Jivaji Dinshaw) Gandhy vs Wadia concerned Bomanji Ardeshir Wadia who had converted to Judaism and married a Polish Jew in London in 1892. The Wadia family precluded him and his wife from the family trust because of the conversion, says Sharafi, but he won the case because the terms of the Trust had nothing to say about remaining a Parsi Zoroastrian. His wife also won on the basis of their valid Jewish wedding and hence had a right to the Wadia Trust.

The Wadia vs Wadia case of 1914 concerned Nusserwanji Pes­tonji Arde-shir Wadia vs Eleanor Wadia, an English actress whom he married in Kensington, UK, on August 4, 1911 and abandoned on a railway platform in London while she was posting a letter, per­haps due to family pressure. "She came back to Bombay and filed a suit for restitution of conjugal rights. The British public opinion was on her side. There was even a Times of India comment­ary. The husband argued that she had been cruel and that she was incontinent. Justice Norman McCloud rejected the arguments and gave the verdict in favor of Eleanor. The case was appealed by Wadia who won on technical jurisdictional grounds of not residing here!” narrates Sharafi adding that she had had the privilege of reading through the judge’s private papers at his home in the Scottish Highlands.

In the third case, Dinbai vs Eruch-shaw Dotyvala of 1916, Sharafi recounts that the Parsi husband abandoned his wife be­cause she was half Malagasy, born of a Parsi trader’s relation­ship with an African woman he had not married. She had been brought to India and raised by her father’s relatives in Vesu, near Surat, who then had difficulty getting her married because of her mixed racial background until she married Eruchshaw. Dinbai claimed that Eruchshaw had been told that her mother was African. He claimed that he did not know and thought she was dark-skinned because of salt water! She won the case because the jury accepted that her father was a Parsi.

Born in Penticton, British Columbia, a Canadian summer resort famous for its fruits and wine, Sharafi earned her LLB from Britain’s Cambridge University and her LLM from Oxford, after graduating from McGill University in Montreal. She then traveled and lived for three and a half months in Iran, spending a major portion of the time in Tehran. Sharafi says her father hails from a village between Shiraz and Persepolis so the Zo­roastrian story was a familiar one. When she joined Princeton’s doctoral history program in 2000 her advisor was Prof Gyan Pra­kash who had grown up in Bihar but "was enamored by Bombay and always interested in the Parsis,” and was himself working on the history of colonial Bombay.

Sharafi says she is fascinated by India’s pluralism and chose to focus on Bombay when other researchers noted that the Bombay High Court would be more accessible whereas in Calcutta family connections may be required. She started her research in London, at the British Museum, School of Oriental and African Studies (SOAS) and Oxford, met Professors Mary Boyce, John Hinnells and Almut Hintze. "The best sources came from the Privy Council’s big store room in the basement where the bound records in really good condition proved to be fabulous.” Sharafi informs us that the Privy Council still decides on death penalty cases coming from the Caribbean, Mauritius and New Zealand. She adds that the Maoris of New Zealand want the Privy Council jurisdiction to continue.

Another source she found extremely useful was the British Newspaper Library in London where English language newspapers from around the world have been preserved since the late 18th century. Here Sharafi says she found a lot of sidelights on the Bella case. (Bella, the daughter of a Parsi mother and Goanese father, both deceased, had been raised in a Parsi home as a Parsi child and her navjote performed. When she accompanied her adoptive father to the Agiary in Rangoon, certain members of the community objected to her presence there, until the judicial proceedings reached the Privy Council which declared that the right to restrict entry to the fire-temple rested with the trustees and not the beneficiaries of the Agiary trust as the latter lost nothing by Bella’s presence.) Somewhere along the line she got to see the Hindi Punch, a satirical weekly of cartoons in London. "The Bombay newspapers had accused Bella’s adoptive mother of being half Burmese and being mistress of Bella’s adoptive father, Shapurji Cowasji Captain. There was also a second navjote of a boy within a day or two of Bella’s. The newspapers maintained that he was part Burmese. His father, Mr Contractor, sued the newspapers as did Bella’s father. One newspaper editor apologized; the other editor settled and a compromise was reached. Bella’s case is so rich because of these litigations and the involvement of the Parsi Fire Temple Trust and the Parsi Cemetery.”

In London Sharafi says she was able to meet people who knew Bella’s husband, a Mr Kolapore, a Parsi who worked for the Singer Sewing Machines Company in Rangoon, said to be a very fun-loving man. At the time of the Privy Council judgment, the sole trustee of the Agiary was Bella’s uncle Bomanji Cowasji Captain, who supported her legal efforts. The man who led the case against Bella was Merwanji Saklat, a very prominent citizen of Rangoon. After her uncle died, Bella was barred entry into the Agiary, became bitter and stopped attending Parsi functions, wore Burmese clothes, etc. She is even supposed to have adopted a little girl, notes Sharafi.

Despite dedicated research — she hoped to have another crack at the Privy Council records on her way back to Princeton — she isn’t sure she has found all the cases, worrying that she may have missed clusters of them as the published judgments deal with only a small number of cases considered important as points of law. The old case papers at the Bombay High Court were in the process of being moved to a storehouse in Mazagaon during the month of May 2004, even as she worked, so it was not possible "to start at the beginning and get it all. You get whatever you can.”

The spunky academician made a trip to Udvada on her own, stayed at the Globe Hotel and came upon "a very obscure book in the local library — the only extra judicial publication of Jus­tice Dinsha Daver, a speech on how to be a good lawyer he had delivered to graduating students.” In Navsari she visited the Meherjirana Library where, among the "amazing collection” she found the Rivayat manuscripts well maintained. While in India she went to Poona and Delhi and visited Aberystwyth and Invernesse in Wales and Scotland respectively to look at the private papers of British judges. On her way back she was hoping to look at some manuscript sources in Paris.

To Sharafi, who enjoys travelling, this has been a "fun project.” She says she found Parsis in Bombay and London very helpful, introducing her to descendants of the old litigants, opening family memoirs and albums. She claims she has gleaned a lot of material from oral history.

More reflectively, she notes, "What these cases reveal is the ethnic self-perception of the community. They open a window on who is a Parsi and how Parsis are different from others. It also complicates the standard view of Parsis as westernized as they cling to their Persian-Parsi identity, opposing mixed mar­riages even to English or French spouses.”