Parsi marriage law transportable

The Parsi Marriage and Divorce Act, 1936 (the Act) makes separate provisions for the Parsi marriage, for grounds for declaration of nullity of marriage and for their dissolution and divorce. For a marriage to be valid both parties to the marriage must be Parsis (i.e. Parsi Zoroastrians) and such marriage must be solemnized according to the form of ceremony called ashirvad by a Parsi priest in the presence of two Parsi witnesses. Compulsory regis­tration of marriages is an integral feature of the Act.

In 1988 on the representation of the Parsi community the Act was amended enabling parties to a marriage to obtain divorce by mutual consent. For the purpose both the parties to the mar­riage must file a suit for divorce on the ground that they have been living separately for a period of at least one year, they have not been able to live together and they have mutually agreed that the marriage should be dissolved. After hearing the parties the court may pass a decree declaring the marriage to be dis­solved. This is a cheap, expeditious and effective remedy to obtain divorce by mutual consent and thereby avoid contentious and at times painful litigation. However, several times this remedy is not invoked due to the hostile attitude of one of the parties to the marriage refusing to give his or her consent to move the court, prolonging thereby acrimony among the parties.

An irretrievable breakdown of marriage is not included as one of the grounds for divorce. Whether that should be a ground is a moot issue giving rise to differing views. Fear is enter­tained in some quarters that this might be used to harass women belonging to the downtrodden or weaker sections of the society and thereby deprive them of the rights and privileges enjoyed by them on marriage. The issue, being controversial, needs consid­eration on a wider range, having regard to personal laws of the communities concerned.

Very frequently women are thrown out of marriage on dubious or frivolous grounds and courts should see that this does not happen as far as possible. In most of such cases the hus­band’s plea is that the marriage has broken down irretrievably and divorce is the only option. However, the Supreme Court has held that an irretrievably broken marriage is not a straight­jacket formula for grant of relief of divorce and has cautioned against easy divorces. It is only in extreme circumstances that the court may use this ground for dissolving a marriage as the last re­course. Every effort must therefore be made to preserve the institution of marriage through arbitration aimed at reconcilia­tion through legal or social mechanisms. Broken homes are traumatic for every person in the family, specially children and that should be avoided as far as possible.

In 2001, section 125 of the Code of Criminal Procedure, 1973 was amended whereby the ceiling of Rs 500 payable as main­tenance allowance by a person to his wife, children and aging parents was removed. The quantum of maintenance allowance is now left entirely to the discretion of the court. Further the Act has been amended providing that an application for alimony pendent lite (pending litigation), maintenance and custody of minor children shall be disposed of within 60 days from the date of service of notice on the respondent. Thus women who are divorced or seeking maintenance, etc from their estranged husbands will derive benefit by the aforesaid provisions of law.

One particular provision of the Act, which is unique and has no counterpart in the personal law of any other community, is contained in section 52 dealing with applicability of the provi­sions of the Act. Section 52(2) provides that a Parsi who has contracted a marriage under the Act shall remain bound by the provisions of this Act, even though such Parsi may change his or her religion or domicile, so long as his or her wife or husband is alive and so long as such Parsi is lawfully not divorced from such wife or husband or such marriage has not lawfully been declared null and void or dissolved under the decree of a compe­tent court under the Act. The Bombay High Court has held that this provision excludes by implication a Parsi married under the Act from obtaining a divorce or from having his or her marriage dissolved in any court in any country of the world other than a competent court under the Act even where he or she had acquired a domicile therein. Thus a person who has contracted marriage under the Act cannot by change of domicile (e.g. domicile in the UK or the USA) escape from the provisions of the Act. If such a Parsi changes his domicile and wants to obtain relief by way of di­vorce, remarriage, alimony, maintenance, etc that can legally be done only by a decree or order of a competent court (Parsi Matri­monial Court) constituted under the Act. Such a Parsi is thus governed by this personal law of divorce, alimony and maintenance wherever he may be domiciled.

Section 4 provides that no Parsi, whether such Parsi has changed his or her religion or domicile, shall contract a mar­riage under the Act or any other law in the lifetime of the spouse, whether a Parsi or not, unless the marriage has been lawfully dissolved or declared null and void and if the marriage was contracted under the Act was dissolved or declared null and void under the provisions of the Act. The object of the section is to prevent polygamous marriages which were then prevalent by Parsi custom.

It follows that if the marriage is contracted under the Act, it can only be dissolved or declared null and void under the provisions of the Act by a competent court constituted under the Act. The same principles apply regarding remarriage, alimony, maintenance, etc. This will serve as guidance to Parsis married under the Act obtaining divorce and contracting remarriage, etc under laws in foreign countries (e.g. the UK and the USA). Such divorce and remarriage are not valid and effective under the Act.

In this connection attention may be invited to an impor­tant decision of the Bombay High Court which recently held that if parties to a marriage were domiciled in India at the time of solemnization of the marriage under the Hindu Marriage Act, 1955 courts in India have the jurisdiction to hear and decide the petition for divorce filed by one of the parties to the marriage domiciled in India at the time of filing the petition, even though they lived abroad for long periods and acquired foreign domicile. Acquisition of domicile in India by a party to the marriage is an essential condition for the said Act to be appli­cable. According to the Court the system of law which governs a marriage should remain constant and cannot change with the whims of the parties to the marriage. Provisions of the said Act, once applied at the time of marriage, will continue to apply so long as the marriage exists even to proceedings for divorce. It is significant to note that the Court gave this important decision as aforesaid even though the parties to the marriage had acquired foreign domicile and the Hindu Marriage Act does not contain any provision similar to that contained in section 52(2) of the Parsi Marriage and Divorce Act, 1936.

This highlights an important aspect of the Parsi marriage law, which is in a sense truly transnational. A Parsi married under the Act carries with him the personal law of marriage, divorce, alimony, maintenance, etc contained in the Act wherever he goes and this personal law is "transportable” with him. For the purpose factors regarding religion, domicile or even nation­ality are immaterial for vesting jurisdiction in a court other than a competent court constituted under the Act. Once the mar­riage is solemnized under the Act its provisions will continue to apply and the marriage can only be dissolved by a competent court constituted under the Act notwithstanding any divorce, remar­riage, etc granted by foreign courts.

Rustom S. Gae, former law secretary to the Government of India, is presently a senior advocate practising in the Supreme Court of India. He is known for his expertise on subjects relating to fiscal laws (including the income-tax law), company law and constitutional law. He writes frequently on legal and other issues pertaining to the community.