Parsi Personal Law: Marriage and Divorce

Introduction

India is a huge country with the maximum amount of diversification a country could have people from all parts of the world find their home in India as it’s it is a very secular country and welcomes all kind of religion and people from all social background, to maintain the secularity in the country government has to look into the interest of all the people and not just the interest of one caste or any particular religion. 

Every year around 10 million marriages take place in India, marriage is one such interest. Government has taken steps from time to time to make it better for every section because marriage holds a significant amount of importance in every religion and it is very sacred as well. In this article we will be talking about the marriage which takes place in the Parsi community.

The Parsi Marriage is also regarded as a contract through a religious ceremony of Ashirvad is necessary for its validity. ‘Ashirvad’ literally means blessings. A prayer or divine exhortation to the parties to observe their marital obligations with faith. The marriage is governed by Parsi marriage and divorce act 1936. There are a total of 53 sections in the act which defines in detail the entire prerequisite for marriage and the process of divorce. This act came into force on 23 April 1936.

Requisites to the validity of Parsi Marriages

• 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.
• In Parsi Law, a marriage is not valid if it is not solemnized by the priest in presence of two Parsi witnesses.
• A marriage will not be considered if the male is not 21 years old and the female has not completed 18 years of age.
• 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.

Punishment of Bigamy

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.

In the case of  Subir Kumar Kundu Alias Sambhu vs State Of West Bengal Court held that:

“Parsi or a Hindu is an offence created by and under Section 5 of the Parsi Marriage & Divorce Act or Section 17 of the Hindu Marriage Act, as the case may be, and is also punishable only under either of those sections and not under Sections 494 and 495 of the Penal Code, though the latter Sections have stood engrafted and incorporated in the former Sections as inseparable adjuncts. Section 511 of the Penal Code provides for punishment for attempt to commit an offence can apply, as its express terms manifest, only to an attempt to commit an offence “punishable by this Code”, i.e. the Penal Code. As Section 511 of the Penal Code cannot apply to any offence created by and punishable under any Special Law, such Special Law usually provides specifically for the offence of attempt to commit such offence, whenever the concerned Legislature intends to punish such attempt, e.g., Section 78 of the Essential Commodities Act, 1955.”

Matrimonial Suits

In Parsi law divorce act any of the spouses can get the marriage dissolved by the following three modes:

1. Suits for nullity: A marriage can be declared null or void by either party if the consummation is impossible because of natural causes.
2. Grounds of divorce: Under the Parsi Law divorce act, any married person may sue for divorce on any one or more of the following grounds, namely:
3. The marriage has not been consummated within 1 year after its solemnization because of the willful refusal of the defendant to consummate it.
4. The defendant at the time of the marriage was mentally ill or of unsound mind and has been habitually so up to the date of the suit.
5. That the defendant was at the time of marriage pregnant by some person other than the plaintiff:
   Provided that divorce shall not be granted on this ground unless 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.
6. Suits for dissolution of marriage: If a husband or wife has been absent from each other for a space of 7 years.

 In Swapna Ghosh v. Sadananda Ghosh, (SB), the Calcutta High Court held, as under: 

“To start with, under Section 10 of the Act, while the husband is entitled to a dissolution on the ground of the wife’s adultery, the wife is not so entitled unless she proves that the husband’s adultery is incestuous or is coupled with cruelty or bigamy or desertion. If the husband is entitled to dissolution on the ground of adultery simpliciter on the part of the wife, but the wife is not so entitled unless some other matrimonial fault is also found to be superadded, then it is difficult id understand as to why this provision shall not be held to be discriminatory on the ground of sex alone and thus to be ultra vires. After which the rights to women was also provided.”

Conclusion

Parsi people in India have one the oldest set of believers and their marriage is considered as a contract like Muslim marriage which is very different to the Hindu marriage in Hindus marriage are considered as sacred engagement of two families. Everyone knows that Hindus in India are in majority and government could have easily neglected all other communities but making regular amends is what makes the country secular and a safe country for people to live in.