Wrongly interpreted

In my view, the Beaman-Davar judgment (11 Bom LR 85: Dinshaw Petit vs Jamsetji Jeejeebhoy) has been wrongly interpreted over the years.

Limiting myself to legal considerations alone, I submit that the judgment of Justices Frank Beaman and Dinshaw Davar does not lay down any law as to who is a "Parsi;” it only recognizes the views then prevalent in the community. Same is the case with the judgment by the Privy Council in Saklat vs Bella (AIR 1925 PC 298).

Both these judgments speak of the Zoroastrian religion not only permitting, but enjoining conversion of a person born in another religion and of non-Parsi parents. As this issue was not the subject matter of either case, such statements are uncalled for and therefore "obiter” (a passing observation made in a judgment, which is not binding because it is not the basis on which the judgment was arrived at).

The question before their Lordships in both cases was whether such converts could avail of the advantage of trusts and institutions created for the benefit of Parsi/Irani Zoroastrians.

The judgment in both cases rightly held that the founders of such institutions and the settlors of such trusts had, at the time of creating these trusts, "racial Parsis” in their contemplation — "in the sense in which that word is understood in the Parsi community.”

Justice Davar held that, as per the evidence then on record, "the Parsi community consists of Parsis descended from original Persian emigrants, born of both Zoroastrian parents, who profess the Zoroastrian religion, Iranis from Persia professing the Zoroastrian religion who came to India temporarily or permanently, and the children of Parsi fathers by alien mothers who have been duly and properly admitted to the religion.” Justice Beaman held that it is fairly accurate to describe Indian Zoroastrians as Parsis — thereby implying a "caste, or communal, or tribal organization.”

Their Lordships, in both judgments, held that the benefit of the respective institutions and trusts, if extended to those who were not "Parsis” and "Parsi Zoroastrians” as spelt out above, would constitute a breach of trust, as they would benefit persons not originally contemplated by the settlors of such trusts.

The ratio of the judgment (the principle on which the judge arrived at his conclusions and therefore acts as a precedent) holds good even today and is relevant to the controversy regarding the rights of certain persons wanting death ceremonies to be performed at the Doongerwadi despite not falling within the parameters the settlors had in mind at the time of creating the trusts. If a trust was settled in the present circumstances of our community, applying the same principle of law may lead to a different outcome. The above ratio would also be relevant in the case of Goolrookh Gupta of Valsad, who has filed a case in the High Court at Ahmedabad.

The judgment in Suit No 3091 of 2009, Jamsheed Kanga & Anr vs Parsi Punchayet Funds & Properties, which was thrown out on technical grounds, also has relevance in the above case.

The Parsi Marriage and Divorce Act, 1936, is restricted to marriages between Parsis, and lays down, inter alia, conditions of a valid Parsi marriage. This does not mean that the marriage of a Parsi under the Special Marriage Act, 1954, is in any way invalid.

I would like to draw the attention of Parsi men and women glibly going through marriage ceremonies with persons of other faiths to the judgment in Perumal vs Ponnuswami: 1971(1) Supreme Court Reports 49: "Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that Perumal chose to go through the marriage ceremony according to Hindu rites with Annapazhan in the presence of a large number of persons clearly indicates that he accepted that Annapazhan was converted to Hinduism before the marriage ceremony was performed.”

Going through such ceremonies could have consequences much beyond merely pleasing the non-Parsi spouse’s family and I would like to warn Zoroastrians to look carefully at the legal position on the matter.

BEHRAM MASANI