The Parsis, literally means “Persians,” who descended from Persian Zoroastrians who emigrated to India in the 7th century to avoid religious persecution by Muslims. They live chiefly in Mumbai and in a few towns and villages mostly to the north of Mumbai, but also at Karachi (Pakistan) and Bengaluru (Karnataka, India). They had adjusted them according to Indian culture but still have maintained their cultural identity. A Parsi Marriage and divorce proceedings are governed by the Parsi Marriage and Divorce Act, 1936. The Parsi Marriage and Divorce Act, 1865 was enacted on April 7, 1865. To meet the need of changing times, the Parsi Central Association appointed a sub-committee in 1923 and it suggested certain amendments. As a result, the Act of 1936 was passed on 23 April, 1936 and came in force on June 22, 1936.Further, it was amended in 1988. The law was passed on 25 March and came into force on 15 April, 1988. In Parsi there is equal treatment to both the genders.
Marriage is proclaimed to be a universal social institution and it is established with the motto to control and regulate the life and behaviour of human beings. Right to marry under the Indian constitution is guaranteed under Article 21 which states about the right to life as a fundamental right to every citizen of the country. Marriages in India defer from religion to religion and from region to region, and each such religion has an individual set of personal laws governing the sacrosanct-ness of marriage.
Who are Parsis?
According to Section 2(7) of the Parsi Marriage and Divorce Act, 1936, a ‘Parsi’ means a ‘Parsi Zoroastrian’.
In Dinshaw M. Petit (Sir) v. Jamshedji Jijibhai, 11 Bom LR 85 the Court held that the Parsi community consist of Parsis who are descendant from the original Persian emigrants, and who are born of Zoroastrian parents, and who profess the Zoroastrian religion, the Iranians from Persia professing Zoroastrian religion who came to India either temporarily or permanently, and the children of Parsi fathers by alien mothers who have been duly and properly admitted into the religion.
Requisites of a Valid Parsi Marriage:
Section 3(1) of the Parsi Marriage and Divorce Act, 1936 gives requisites of a valid marriage:
(a) Marriage is not valid if both the contracting parties are related to each other in any of the degrees of consanguinity i.e., people descended from the same ancestors.
(b) In Parsi Law, a marriage is not valid if it is not solemnized by the priest in presence of two Parsi witnesses.
(c) A marriage will not be considered valid if the male is not completed 21 years of age and the female has not completed 18 years of age.
According to Section 3(2) of the Parsi Marriage and Divorce Act, 1936, if the marriage is not valid as per the points are given above, any child of such marriage who would have been legitimate had the marriage been valid, shall be legitimate.
Like all other personal laws, the Parsi Marriage and Divorce Act, 1936, also prohibit or discourages marriages between certain relations through consanguinity and affinity. The table of prohibited degrees of relationship is given in Schedule I of the Act. These relations are through father, mother, son, daughter, wife or husband, sister and brother.
In India every community has a different and diverse set of prescribed rites and ceremonies for marriage and they vary from community to community. Parsi Marriage is regarded as a Contract though mandatory religious Ceremony called Ashirvad. Ashirvad is a prayer or divine exhortation to the Parties to observe their marital obligations with faith. The word ‘Ashirvad’ literally means ‘Blessing’. The ceremony is performed by the priest of Parsi religion. Section 2(8) provides for two classes of Parsi priest – Dastur and Mobed. ‘Ashirvad’ may be performed by any of them. Dastur is a head priest, while mobed means ordinary priest. There is also requirement of two Parsi witnesses beside the priest.
In Peshotam Hormasji Dustoor v. Meherbai, ILR (1880) 13 Bom 302 case, the Court held that Ashirvad means blessing and is essential to prove the validity of a marriage. Further the court held that it means an exhortation or prayer that the parties recite before the marital observations.
In Maneka Gandhi v. Indira Gandhi, AIR 1984 Del. 428 case, it was held that Marriage between Feroze Gandhi and Indira Gandhi was celebrated by Vedic rites. It was therefore, not a Parsi marriage.
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. Unlike the Hindu law and the Special Marriage Act, the Parsi Act does not restrict the inheritance rights of children of invalid marriage to parents only.
Remarriage in Parsis:
According to Section 4(1) of the Parsi Marriage and Divorce Act, 1936, 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. According to Section 4(1) of the Act, every marriage contracted contrary to the provisions of subsection 4(1) shall be void.
Punishment for Bigamy:
According to Section 5 of the Parsi Marriage and Divorce Act, 1936, every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage again without having been divorced lawfully from such wife or husband, or without having his or her previous marriage been declared null and void or dissolved, shall be subject to the penalties provided by the Indian Penal Code for the offence of marrying again during the lifetime of his/her husband or wife.
Under Section 494 of the Indian penal Code, whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Under Section 495 of the Indian Penal code, whoever commits the offense of Marriage under Sec. 494 then having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Under Section 11 of the Act, the priest who knowingly and willfully solemnizes such a marriages liable to be punished with simple imprisonment up to six months or with fine up to Rs. 200 or both.
Certificate of Marriage:
According to Section 6 of the Parsi Marriage and Divorce Act, 1936, 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. 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.
Under 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 that the certificate was not sent to the Registrar, or that the certificate was defective, irregular or incorrect.
According to Section 12 of the Act, if the priest neglects to comply with this duty, he becomes liable to be punished with simple imprisonment up to three months or with a fine Rs. 100 or both.
According to Section 13 of the Act, every other person required by section 6 to subscribe or attest the said certificate who shall wilfully omit or neglect so to do, shall, on conviction thereof, be punished for every such offence with a fine not exceeding one hundred rupees.
According to Section 14 of the Act, every person making or signing or attesting any such certificate containing a statement which is false, and which he either knows or believes to be false, shall be punished with simple imprisonment for a term which may extend to three months, or with fine which may extend to one hundred rupees, or with both; and if the act amounts to forgery as defined in the Indian Penal Code (45 of 1860) then such person shall also be liable, on conviction thereof, to the penalties provided in section 466 of the said Code.
Though the registrar has to register the marriage in the marriage register book and the Act makes it mandatory for a Parsi marriage to be registered, yet under Section 114 of the Indian Evidence Act, the basis of prolonged cohabitation would arise and this would be applicable to the particular Act since the Evidence Act is applicable to all the personal laws in India.
Registrar:
According to Section 7 of the Act, for the purposes of this Act a Registrar shall be appointed, within the local limits of the ordinary original civil jurisdiction of a High Court, the Registrar shall be appointed by the Chief Justice of such Court, and without such limits, by the State Government. Every Registrar so appointed may be removed by the Chief Justice or State Government appointing him.
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 form as such State Government from time to time prescribes, of all certificates entered by him in the said register of marriages since the last of such intervals.
According to Section 15 of the Act, any Registrar failing to enter the said certificate pursuant to section 6 shall be punished with simple imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Marriage Register:
According to Section 6 of the Parsi Marriage and Divorce Act, 1936, 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. 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.
Under Section 8 of the Act, the register of marriages 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 16 of the Act, any person secreting, destroying, or dishonestly or fraudulently altering the said register in any part thereof, shall be punished with imprisonment of either description as defined in the Indian Penal Code (45 of 1860) for a term which may extend to two years, or if he be a Registrar, for a term which may extend to five years and shall be liable to fine which may extend to five hundred rupees.
Conclusion:
‘Parsi’ means a ‘Parsi Zoroastrian’. In case of the marriage and divorce, among parsis, the Parsi Marriage and Divorce Act, 1936 is applicable. Section 4 of the Act, gives requisites for valid marriage under the Act. Marriage is a religious ceremony called ‘Ashirvad’ for which a priest and two Parsi witnesses are required. Every marriage must be registered with a Registrar appointed for such purpose under Act.
For More Articles on the Parsi Marriage and Divorce Act, 1936 Click Here