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. According to Section 2(7) of the Parsi Marriage and Divorce Act, 1936, In this article, we shall discuss Parsi Matrimonial Courts and Appointment of Delegates.
A ‘Parsi’ means a ‘Parsi Zoroastrian’. The Parsi Marriage and Divorce Act, has excluded Parsi matrimonial disputes from the jurisdiction of ordinary civil courts and family courts. The Act provides for constitution of special courts to hear such matters.
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.
Parsi Matrimonial Courts:
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.
According to Section 19 of the Act, The Court so constituted under Section 18 of the Act, in each of the Presidency-towns shall be entitled the Parsi Chief Matrimonial Court of Calcutta, Madras or Bombay, as the case may be. 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, and, in the trial of cases under this Act, he 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;
(c) custody, maintenance, and education of children; and
(d) all matters and proceedings other than the regular hearing of cases.
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 23 of the Act, a seal shall be made for every Court constituted under this Act, and all decrees and orders and copies of decrees and orders of such Court shall be sealed with such seal, which shall be kept in the custody of the presiding Judge.
According to Section 44 of the Act, notwithstanding anything contained in section 19 or section 20, where in the case of a trial in a Parsi Matrimonial Court not less than three delegates have attended throughout the proceedings, the trial shall not be invalid by reason of the absence during any part thereof of the other delegates.
In Pestonji Bharucha v. Aloo, AIR 1984 Bom 75 case, the plaintiff challenged the verdict of the judge on the ground that all the delegates were not present at the time of verdict. The Bombay High Court rejected this argument and held that all the delegates need not be present when the verdict is pronounced.
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: Provided that the presiding Judge shall read out to the delegates the relevant sections of this Act, and may, if he consider it necessary so to do, explain the same: Provided further that a verbatim record shall be made of what the presiding Judge reads out or explains to the delegates.
According to Section 46 of the Act, in suits under this Act all questions of law and procedure shall be determined by the presiding Judge; but the decision on the facts shall be the decision of the majority of the delegates before whom the case is tried: Provided that, where such delegates are equally divided in opinion, the decision on the facts shall be the decision of the presiding Judge.
Parsi District Matrimonial Courts:
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, and in the trial of cases under this Act he shall be aided by five delegates.
(a) interlocutory applications and proceedings;
(b) alimony and maintenance, both permanent as well as pendente lite;
(c) custody, maintenance, and education of children; and
(d) all matters and proceedings other than the regular hearing of cases.
According to Section 21 of the Act, the State Government may from time to time alter the local limits of the jurisdictions of any Parsi District Matrimonial Court and may include within such limits any number of districts under its government.
According to Section 22 of the Act, any district which the State Government, on account of the fewness of its Parsi inhabitants, shall deem it inexpedient to include within the jurisdiction of any District Matrimonial Court, shall be includes within the jurisdiction of the Parsi Chief Matrimonial Court for the territories under such State Government where there is such a Court.
Provisions of Section 23, 44, 45, and 46 of the Act, are also applicable to Parsi District Matrimonial Courts.
Appointment of Delegates:
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.
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).
Under Section 27 of the Act, the delegates selected under sections 19 and 20 to aid in the Seal adjudication of suits under this Act, shall be taken under the orders of the presiding Judge of the Court in due rotation from the delegates appointed by the State Government under section 24: Provided that each party to the suit may, without cause assigned, challenge any three of the delegates attending the Court before such delegates are selected and no delegate so challenged shall be selected.
In Dibai v. Framroz, AIR 1910 Nag 77 case, the Court held that it is clear that ‘the right to challenge’ the appointment of a delegate is to be exercised before the trial begins. A delegate under the Act occupies a position similar to a juryman and his appointment cannot be challenged in an appeal.
Legal Practitioners in Matrimonial Courts:
According to Section 29 of the Act, all legal practitioners entitled to practice in a High Court shall be entitled to practice in any Court constituted under this Act, and all legal practitioners entitled to practice in a District Court shall be entitled to practice in any Parsi District Matrimonial Court constituted under this Act.
Jurisdiction of Matrimonial Courts:
Section 30 of the Act gives provision for the court in which a Parsi matrimonial suit is to be filed.
- The suit is to be filed in the court within the limits of whose jurisdiction the defendant resides at the time of filing the suit or where the marriage under the Act is solemnized.
- If the defendant has at the time of institution of the suit, left the territories to which the Act extends, the suit can be filed in the court at the place where the plaintiff and the defendant last resided together.
- In any case, whether the defendant resides in or not in the territories to which the Act extends. A suit can be filed in the court at the place where the plaintiff resides or at a place where both spouses last resided together. If the court grants leave to do so, after recording its reasons in writing.
In Panthaky v. Panthaky, AIR 1941 Bom 330 case, the court held that the meaning to be given to the word ‘resides’ would depend on the facts and circumstances of each case. If a person is permanently at particular place, there can be no doubt that he ‘resides’ at such a place. However, residence need not be always permanent. It is enough if it is bonafide, along with an element of continuity, even if it is not permanent in nature.
Conclusion:
A ‘Parsi’ means a ‘Parsi Zoroastrian’. The Parsi Marriage and Divorce Act, has excluded Parsi matrimonial disputes from the jurisdiction of ordinary civil courts and family courts. The Act provides for constitution of special courts to hear such matters. The Act provides for setting for the Parsi Matrimonial Courts. The provision of appointment of delegates to the Court is made in the Act. The judge of Parsi Matrimonial Court needs to be aided by the delegates only in contested matters.
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