Dissolution of Parsi Marriage: Q & A Set 02

These are frequently asked questions about Dissolution of Parsi Marriage under the Parsi Marriage and Divorce Act, 1936.

Type – I: Answer in Two or Three Sentences (1 M)

a) Name the grounds of nullity of marriage in a suit under the Parsi Marriage and Divorce Act.

The Parsi community in India follows their separate Act for marital affairs. According to Section 30 of the Parsi Marriage and Divorce Act, 9136 in any case, in which consummation of the marriage by natural causes is impossible, such marriage may, at the instance of either party thereto, be declared to be null and void.

b) State two grounds on which a Parsi can seek divorce under the Parsi Marriage and Divorce Act.

Section 32, 32A, 32B of the Parsi Marriage and Divorce Act, 1936 on the following fourteen grounds:

Wilful non-consummation of marriage for one year
Unsoundness of mind at the time of marriage
Mental disorder
Pregnancy of the wife before marriage
Adultery, etc.
Cruelty
Causing grievous hurt, inflicting a venereal disease or forcing wife to prostitution
Imprisonment of spouse for seven years or more
Desertion for two years
Order for separate maintenance
Conversion
Non-resumption of cohabitation after decree for judicial separation
Non-restitution of conjugal rights after decree for restitution of conjugal rights
Divorce by mutual consent

c) What is restitution of Conjugal rights under the Parsi Marriage and Divorce Act?

Conjugal rights mean the right to stay together. The right of sexual intercourse between the husband and the wife. Under Section 36 of the Parsi Marriage and Divorce Act, 1836 we can find following essential of conjugal rights:

The withdrawal by the husband/wife from the community of the spouse.
The withdrawal is without any reasonable justification or excuse or lawful ground.
There should be no other lawful ground for denial of the relief.
The court should be filled with the truth of the observation made in the petition.

d) What is a legal status of illegitimate child under the Parsi Marriage and Divorce Act?

Section 3(2) of the Parsi Marriage and Divorce Act, 1936 was inserted by the amendment Act of 1988. Even if a marriage is void being in violation of conditions given in sec 3(1) of the Act, the child born to such an invalid marriage is as legitimate as if he were born of a valid marriage. The provision is both prospective and retrospective.

Type – II Write Short Notes on the Following (3/4/5 M)

a) Parsi District Matrimonial Courts:

A Parsi Marriage and divorce proceedings are governed by the Parsi Marriage and Divorce Act, 1936. A ‘Parsi’ means a ‘Parsi Zoroastrian’. According to Section 18 of the Act, for the purpose of hearing suits under this Act, a Special Court shall be constituted in each of the Presidency-towns of Calcutta, Madras and Bombay, and in such other places in the territories of the several State Governments as such Governments respectively shall think fit. The Parsi Chief Matrimonial Courts of Calcutta, Madras, or Bombay are so founded in each Presidency-town. The local limits of the jurisdiction of a Parsi Chief Matrimonial Court shall be conterminous with the local limits of the ordinary original civil jurisdiction of the High Court. The Chief Justice of the High Court, or such other Judge of the same Court as the Chief Justice shall from time to time appoint shall be the Judge of such Matrimonial Court.

According to Section 20 of the Act, every Court so constituted at a place other than a Presidency town shall be entitled the Parsi District Matrimonial Court of such place. Subject to the provisions contained in section 21, the local limits of the jurisdiction of such Court shall be conterminous with the limits of the district in which it is held. The Judge of the principal Court of original civil jurisdiction at such place shall be the Judge of such Matrimonial Court.

During the trial of cases under this Act in Matrimonial Court, the judge shall be aided by five delegates, except in regard to-

(a) interlocutory applications and proceedings;

(b) alimony and maintenance, both permanent as well as pendente lite;

(d) all matters and proceedings other than the regular hearing of cases.

According to Section 45 of the Act, the provisions of the Code of Civil Procedure, 1908, shall, so far as the same may be applicable, apply to proceedings in suits instituted under this Act including proceedings in execution and orders subsequent to decree

b) Appointment of delegates under the Parsi Marriage and Divorce Act:

During the trial of cases under this Act in Matrimonial Court, the judge shall be aided by five delegates, except in regard to-

(a) interlocutory applications and proceedings;

(b) alimony and maintenance, both permanent as well as pendente lite;

(d) all matters and proceedings other than the regular hearing of cases.

According to Section 24(1) of the Act, the State Government, shall, in the Presidency-towns and districts subject to their respective governments, respectively appoint persons to be delegates to aid in the adjudication of cases arising under this Act, after giving the local Parsis an opportunity of expressing their opinion in such manner as the respective Governments may think fit.

In Minoo Shroff v. Union of India, 2005 (4) BLR 147 case, a Division Bench of the Bombay High Court held that under the Act, the judge of Parsi Matrimonial Court needs to be aided by the delegates only in contested matters. Where an application is heard for a divorce by mutual consent, there is no adjudication, and hence no requirements of delegates assisting the judge.

According to Section 24(2) of the Act, the persons so appointed shall be Parsis, their names shall be published in the Official Gazette and their number shall, within the local limits of the ordinary original civil jurisdiction of a High Court, be not more than thirty, and in districts beyond such limits, not more than twenty.

According to Section 25 of the Act, the appointment of a delegate shall be for ten years; but he shall be eligible for reappointment for the like term or terms. Whenever a delegate shall die, or have completed his term of office, or be desirous of relinquishing his office, or refuse or become incapable or unfit to act, or cease to be a Parsi, or be convicted of an offence under the Indian Penal Code (45 of 1860) or other law for the time being in force. Or be adjudged insolvent, then and so often the State Government may appoint any person being a Parsi to be a delegate in his stead, and the name of the person so appointed shall be published in the Official Gazette.

According to Section 26 of the Act, all delegates appointed under this Act shall be considered, to be public servants within the meaning of the Indian Penal Code. (45 of 1860).

c) Pre-marriage pregnancy under the Parsi Marriage and Divorce Act:

The Parsi community in India follows their separate Act for marital affairs. Section 32, 32A, 32B of the Parsi Marriage and Divorce Act, 1936 gives fourteen grounds for divorce. Pre-marriage pregnancy is one of them. The concept of pre-marriage pregnancy affecting matrimonial harmony has been borrowed from English Law. This provision in the Act, makes the marriage voidable at the option of the husband. Concealment of such fact from to be husband is considered as a fraud. The concept is included to prevent the attempt to foist another man’s child on the husband.

Under the Parsi Law, the husband can sue for divorce on the ground that the wife was, at the time of the marriage, pregnant by some person other than the plaintiff:

Provided:

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.

The three conditions mentioned above are cumulative in nature. i.e. all of them must be fulfilled before a suit for divorce is filed on this ground. If the husband is aware of this fact at the time of marriage, it is clear that he had decided to marry a pregnant girl and he should not be allowed to complain later.

d) Constructive Desertion:

The word desert literally means ‘to abandon or give up or forsake without any sufficient reason or intention to return’. In a marriage, if one spouse leaves the matrimonial alliance without any sufficient cause he is said to be at ‘fault’. Desertion of the plaintiff by the defendant for a period of at least two years is also a ground for divorce under the Parsi Marriage and Divorce Act, 1936. According to Section 2(3) of the Act, desertion means to desert the other party to a marriage without reasonable cause and without the consent, or against the will, of such party.

Desertion occurs when a spouse leaves home without justification or consent from the other spouse. In this case, the fault lies with the spouse who leaves the home. Constructive desertion occurs when a spouse is caused to leave home by the other spouse’s misconduct. In this case, even though one spouse physically leaves the home, the spouse engaging in misconduct is at fault.

Desertion requires the spouse seeking divorce prove

the end of cohabitation (the spouses no longer live together or engage in sexual relations)
the deserting spouse’s intent to end the marriage
the leaving was not justified
there is no hope of reconciliation
the deserted spouse did not consent to the desertion
the desertion lasted for 2 years.

Constructive desertion requires the same 6 elements listed above. The most common ground for constructive desertion is cruelty. Constructive desertion is when one spouse makes the household unliveable for the other spouse. Misconduct that qualifies constructive desertion can include domestic violence and excessive emotional harassment. Willful and continual refusal of sexual relations.

In Handa v. Handa, AIR 1985 Del 76 case, the Court held that if the husband creates circumstances which compel the wife to leave the house, it is the husband, and not the wife who is guilty of desertion.

In Gatehouse v. Gatehouse, 1 P & M 331 case, the Court held that desertion commences from the time when the husband makes up his mind to abandon the wife, and not from the time when they actually cease to cohabit.

e) Divorce by mutual consent under the Parsi Marriage and Divorce Act:

Historically, Muslim Law is the first legal system in India under which mutual consent as a ground of divorce has been recognized and in other legal system prevailing in India the same got recognition subsequently In 1936, the Parsi Marriage and Divorce Act originally did not recognized divorce by mutual consent for Parsi Zoroastrians. It was only in 1988 that section 32-B was inserted for the purpose of providing for divorce by mutual consent between spouses. This provision incorporates the breakdown theory of divorce, which is different than other grounds of divorce which are based on fault theory.

When both the parties agree on the dissolution of marriage in a cordial manner which is a more harmonious way rather than fighting in a court and defaming each other and file a petition under Section 32B of the Parsi Marriage and Divorce Act, 1936 (added by the amendment of 1988) to grant them decree of divorce, then it is called a divorce by mutual consent. It is prospective and retrospective provision.

According to Section 32B(1) of the Act, subject to the provisions of this Act, a suit for divorce may be filed by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Parsi Marriage and Divorce (Amendment) Act, 1988, 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.

According to Section 32B(2) of the Act, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and the averments in the plaint are true and 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 the decree.

Essentials for Divorce by Mutual Consent:

They have been living separately for a period of one year or more
They have not been able to live together
They have mutually agreed that the marriage should be dissolved
The court finds the averments in the plaint are true.
The court also finds the consent of either party to the suit was not obtained by force or fraud

There are contrasting views of the courts on the withdrawal of consent after filing petition.

f) Restitution of conjugal rights under the Parsi Marriage and Divorce Act:

Marriage under all matrimonial laws is union imposing upon each of the spouses, certain marital duties and gives to each of them certain legal rights. The necessary implication of marriage is that parties will live together. Each spouse is entitled to comfort consortium of the other. If any of the parties failed or refused to perform his or her duties under conjugal rights binding upon him or her without giving any reasonable excuse then, the aggrieved party can file petition for restitution of conjugal rights.

According to Section 36 of the Parsi Marriage and Divorce Act, 1936 where a husband shall have deserted or without lawful cause ceased to cohabit with his wife, or where a wife shall have deserted or without lawful cause ceased to cohabit with her husband, the party so deserted or with whom cohabitation shall have so ceased may sue for the restitution of his or her conjugal rights and the Court, if satisfied of the truth of the allegations contained in the plaint, and that there is no just ground why relief should not be granted, may proceed to decree such restitution of conjugal rights accordingly.

Requirements of Restitution of Conjugal Rights

The withdrawal by the respondent from the community of the petitioner.
The withdrawal is without any reasonable justification or excuse or lawful ground.
There should be no other lawful ground for denial of the relief.
The court should be satisfied about the truth of the statement made in the petition.

If the respondent has withdrawn from the society of his spouse for a valid reason, it is a complete defence to a restitution petition.

In Sarij Rani v. Sudershan, AIR 1984 SC 1562 case, the apex court held that the provision of the restitution of conjugal rights does not violate any fundamental right guaranteed by the Indian Constitution, and therefore it is valid.

g) Alimony Under the Parsi Marriage and Divorce Act:

When a marriage ends, typically one party will need financial support from the other to make ends meet. Alimony is the legal obligation to make those payments. The word ‘alimony’ refers to the allowance granted by a court to a spouse who is not living with his or her spouse. The object of ordering such a payment is to provide such a spouse of maintaining himself or herself. Alimony during the matrimonial litigation, is the alimony granted by court, by which the court directs a spouse to pay to the other spouse during the pendency of the litigation is called alimony pendente lite. Another type of alimony is permanent alimony which is granted by the court when passing the final decree or even thereafter.

According to Section 39 of the Parsi Marriage and Divorce Act, 1936 where in any suit under this Act, it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the suit, it may, on the application of the wife or the husband order the defendant to pay to the plaintiff the expenses of the suit,. and such weekly or monthly sum, during the suit as, having regard to the plaintiff’s own income and the income of the defendant, it may seem to the Court to be reasonable.

The court will look at the following factors when considering alimony:

The earnings of both spouses
Their standard of living during the marriage
Whether one spouse supported the other during his/her education
The length of the marriage
The age, physical condition, emotional state, and financial condition of the former spouses
The educational or training need of the lesser earning spouse

Apart from the above-mentioned remedy, there is also Right to Maintenance under Section 125, of the Criminal Procedure Code, 1973 which was legislated as a tool for social justice.

h) Permanent alimony under the Parsi Marriage and Divorce Act:

According to Section 40(1) of the Parsi Marriage and Divorce Act, 1936 any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an application made to it for the purpose by either the wife or the husband, order that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff as having regard to the defendant’s own income and other property, if any, the income and other property of the plaintiff, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the movable or immovable property of the defendant.

According to Section 40(2) of the Parsi Marriage and Divorce Act, 1936 the Court if it is satisfied that there is change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.

According to Section 40(3) of the Parsi Marriage and Divorce Act, 1936 the Court if it is satisfied that the partly in whose favour, an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he had sexual intercourse with any woman outside wedlock, it may, at the instance of the other party, vary, modify or rescind any such order in such manner as the Court may deem just.

Apart from the above-mentioned remedy, there is also Right to Maintenance under Section 125, of the Criminal Procedure Code, 1973 which was legislated as a tool for social justice.

i) Provision of appeal under the Parsi Marriage and Divorce Act:

Under Section 47 of the Parsi Marriage and Divorce Act, 1936 the decision of any Court established under this Act, whether a Chief Matrimonial Court or District Matrimonial Court, on the ground of the decision being contrary to some law or usage having the force of law, or of a substantial error or defect in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits, and on no other ground; and the granting of leave by any such Court under sub-section (3) of section 29 can be appealed and shall be heard by a Bench of two Judges of the High Court. Such appeal shall be instituted within three calendar months after the decision appealed from shall have been pronounced.

Under Section 48 of the Act, When the time limited for appealing against any decree granting a divorce or annulling or dissolving a marriage shall have expired, and no appeal shall have been presented against such decree, or when any such appeal shall have been dismissed, or when in the result of any appeal a divorce has been granted or a marriage has been declared to be annulled or dissolved, but not sooner, it shall be lawful for the respective parties thereto to marry again.

j) Children of Parsis:

When it comes to custody of children, all courts are unanimous in their view that the welfare of the child is the paramount consideration.

According to Section 49 of the Parsi Marriage and Divorce Act, 1936 in any suit under this Act, the Court may from time to time pass such interim orders and make such provisions in the final decree as it may deem just and proper with respect to the custody, maintenance and education of the children under the age of eighteen years, the marriage of whose parents is the subject of such suit, and may, after the final decree upon application, by petition for this purpose, make, revoke, suspend or vary from time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such final decree or by interim orders in case the suit for obtaining such decree were still pending.

According to Section 50 of the Parsi Marriage and Divorce Act, 1936 in any case in which the Court shall pronounce a decree of divorce or judicial separation for adultery of the wife, if it shall be made to appear to the Court that the wife is entitled to any property either in possession or reversion, the Court may order such settlement as it shall think reasonable to be made of any part of such property, not exceeding one half thereof, for the benefit of the children of the marriage or any of them.

It is also provided that all applications with respect to maintenance of children should, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

k) 1988 Amendments of Parsi Marriage and Divorce Act, 1936

Among the provisions that have been amended or newly added by 1988 Act are those relation to following matters

Marriage Age – 21 for male and 18 for female (Even if he or she has changed his or her religion)
Legitimacy of Children of invalid marriage;
Reduction of number of delegates from seven to five.
Incurable unsoundness of mind for a period of two years as a ground for divorce.
Cruelty as a ground for divorce.
Non-resumption of cohabitation after a decree for separate maintenance for one year (instead of three) as aground for divorce.
Conversion to some other religion (not merely ceasing to be a Parsi) as a ground for divorce. · Non-resumption of cohabitation for a period of one year after a decree for judicial separation or restitution of conjugal rights as a grounds for divorce available to both the parties to the decree irrespective of the guilt.
Mutual consent as ground for divorce.
Equal rights of husband and wife to claim alimony pendent lite and permanent alimony and maintenance from the other.
Age for custody and maintenance of children increase from 16 to 18.
Appeal from the Parsi matrimonial court to be heard by a bench of two judges of the High Court (instead of One).
Admission in evidence of unregistered and unstamped documents, and
Secrecy of judicial proceedings.

Although the amending Act 1988 has introduced a number of reforms, there is still much dissatisfaction in the Parsi Community. They maintain that while the amendment to the half-a-century old enactment had become long overdue, the amending Act of 1988 has failed to achieve the desired reforms as per expectations of the Parsi Community. The dissatisfaction is mainly for retaining the system of delegates and special matrimonial courts for the Parsis. This method of adjudication of Matrimonial disputes of Parsi has, it is felt, lost utility. The Parsi matrimonial courts must be replaced with the ordinary civil courts. Such a step would effect uniformity in the country in respect administration of personal Laws.

Parsi marriage and Divorce (Amendment) Act 1988 has made divorce available to a Parsi generally on all grounds which are furnished by the two major family laws codes of India – the Hindu Marriage Act 1955 and The Special Marriage Act 1954 (Amended in 1976). It has also introduced the ‘no fault theory’ of divorce (breakdown of marriage) in the Parsi Law by introducing divorce by mutual consent and by allowing decree of judicial separation and restitution of conjugal rights to ripen into grounds of divorce available to either party, irrespective of the guilt.

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Parsi Marriage and Divorce Act Q & A: Set 02 (Dissolution of a Parsi Marriage)

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Parsi Marriage and Divorce Act Q & A: Set 02 (Dissolution of a Parsi Marriage)

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