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PARSI MARRIAGE AND DIVORCE ACT, 1936

3 of 1936

23rd April, 1936

The Parsi Marriage and Divorce Act at present in force was passed in 1865. Since then circumstances have greatly altered and to some extent there has also been a change in the sentiments and views of the Parsi community. Hence a necessity for some change in the law has been felt for years. The Parsi Central Association took up the question in 1923 and appointed a Sub-Committee to suggest amendments. The Sub-Committee submitted a report which the Association got printed and circulated for opinion to most other Parsi Associations as well as prominent members of the community both in Bombay arid outside. Many suggestions were made, and among them by the Trustees of the Bombay Parsi Panchayat who had the advantage of seeing the suggestions of others. The Central Association adopted the suggestions of the Panchayat Trustees and reprinted the whole and again circulated it. Fresh suggestions were thereupon made in the press, on the platform, by associations and individuals. These were fully considered by the Trustees as well as the Association and the present draft is the result. On the whole it represents, the views of the great majority of the community, and has been approved by leading Parsis like Sir Dinshaw E. Wacha and the late Rt. Hon. Sir Dinshaw F, Mulla."-Gazette of India, 1934, Part V, p. 221.

An Act to amend the law relating to marriage and divorce among Parsis. Where it is expedient to amend the law relating to marriage and divorce among Parsis. It is hereby enacted as follows:

CHAPTER I-PRELIMINARY

SECTION 01: SHORT TITLE, EXTENT AND COMMENCEMENT

(1) This Act may be called The Parsi Marriage and Divorce Act, 1936.

(2) [It extends to the whole of India except the State of Jammu and Kashmir];

Provided that the [Central Government] may, in respect of [territories which, immediately before the 1st November, 1956, were comprised in Part B States] by notification in the [Official Gazette], direct that the provisions of this Act relating to the constitution and powers of Parsi Matrimonial Courts and to appeals from the decisions and orders of such Courts shall apply with such modifications as may be specified in the notification.

(3) It shall come into force on such date5as the [Central Government] may by notification in the [Official Gazette], appoint.

SECTION 02: DEFINITIONS

In this Act, unless there is anything repugnant in the subject or context.-

(1) "Chief Justice" includes senior Judge;

(2) "Court" means a Court constituted under this Act;

(3) to "desert", together with its grammatical variations and cognate expressions, means to desert the other party to a marriage without reasonable cause and without the consent, or against the will, of such party;

(4) "grievous hurt" means-

(a) emasculation;

(b) permanent privation of the sight of either eye;

(d) privation of any member or joint;

(e) destruction or permanent impairing of the powers of any member or joint;

(f) permanent disfiguration of the head or face; or

(g) any hurt which endangers life;

(5) "husband" means a Parsi husband;

(6) "marriage" means a marriage between Parsi whether contracted before or after the commencement of this Act;

(7) a "Parsi" means a Parsi Zoroastrian;

(8) "priest" means a Parsi priest and includes Dastur and Mobed; and

(9) "wife" means a Parsi wife.

CHAPTER II- MARRIAGES BETWEEN PARSIS

SECTION 03: REQUISITES TO VALIDITY OF PARSI MARRIAGES

(1) No Marriage shall be valid if-

(a) the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule 1; or

(b) such marriage is not solemnized according to the Parsi form of ceremony called “Ashirvad” by a priest in the presence of two Parsi witnesses other than such priest; or

(c) In the case of any Parsi(whether such Parsi has changed his or her religion or domicile or not) who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.]

(2) Notwithstanding that a marriage is invalid under any of the provisions of sub-section (1), any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate.]

"Clause 3.-This corresponds to the present section 3-[of the Act of 1865], the only change made in which is in the table of prohibited degrees of relationship. The new table is based on clear principles in accordance with Parsi religion and custom, and is more concise and at the same time more comprehensive than the present one."-S.O.R.

SECTION 04: REMARRIAGE WHEN UNLAWFUL

(1) 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.

(2) Every marriage contracted contrary to the provisions of sub-section (1) shall be void.

"Clause 4.- This corresponds to the present section 4 (15 of 1865 Act). The alteration is made to suit altered circumstances. The present law provides for the dissolution of a previous Parsi marriage only before contracting a new one, as in 1865 it was not contemplated that a Parsi could contract any other than a Parsi marriage under the Parsi law. At present cases of such other marriages are fairly common. Such a marriage while subsisting ought to be a bar to a marriage under Parsi law, exactly as it would be to a Christian marriage or one under the Special Marriage Act, and there is little doubt that a Court would take the same view even at present under the general law. The alteration puts the matter beyond doubt."-S.O.R.

SECTION 05: PUNISHMENT OF BIGAMY

Every Parsi who during the lifetime of his of her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or husband, or without his or her marriage with such wife or husband having legally been declared null and void or dissolved, shall be subject to the penalties provided in sections 494 and

495 of the Indian Penal Code-for the offence of marrying again during the lifetime of a husband or wife.

SECTION 06: CERTIFICATE AND REGISTRY OF MARRIAGE

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; and 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.

SECTION 07: APPOINTMENT OF REGISTRAR

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 appointed10may be removed by the Chief Justice or [State

Government] appointing him.

SECTION 08: MARRIAGE REGISTER TO BE OPEN FOR PUBLIC INSPECTION

The register of marriage mentioned in section 6-shall, at all reasonable times, be open for inspection, and certified extracts therefrom 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.

SECTION 09: COPY OF CERTIFICATE TO BE SENT TO REGISTRAR-GENERAL OF BIRTHS, DEATHS AND MARRIAGES

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 to 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 prescribed, of all certificates entered by him in the said register of marriages since the last of such intervals.

SECTION 10: REGISTRATION OF DIVORCES

When a Court passes a decree for divorce, nullity or dissolution, the Court shall send a copy of the decree for registration to the Registrar of Marriages within its jurisdiction appoint under section 7-; the Registrar shall enter the same in a register to be kept by him for the purpose, and the provisions of Part II applicable to the Registrars and registers of marriages shall be applicable, so far as may be, to the Registrars and-registers of divorces and decrees of nullity and dissolution.

SECTION 11: PENALTY FOR SOLEMNIZING MARRIAGE CONTRARY TO SECTION 4

Any priest knowingly and wilfully solemnizing any marriage contrary to and in violation of section 4-shall, on conviction thereof, be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two hundred rupees, or with both.

SECTION 12: PENALTY FOR PRIEST'S NEGLECT OF REQUIREMENTS OF SECTION 6

Any priest neglecting to comply with any of the requisitions affecting him contained in section 6-shall, on conviction thereof, be punished for every such offence 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.

SECTION 13: PENALTY FOR OMITTING TO SUBSCRIBE AND ATTEST CERTIFICATE

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.

SECTION 14: PENALTY FOR MAKING, ETC., FALSE CERTIFICATE

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, then such person shall also be liable, on conviction, thereof, to the penalties provided in section 466 of the said Code.

"Clause 14.-This corresponds to the present section 12-[of the Act of 1865]. The latter makes all the signatories guilty of forgery if any the slightest detail, whether material or not be incorrect, e.g., if the age of a party be given at 35 instead of 37. The use of the words 'does not know to be true' makes even a person acting in good faith on information apparently reliable guilty if his information happens to be incorrect. The alteration is intended to remedy these defects."- S.O.R.

SECTION 15: PENALTY FOR FAILING TO REGISTER CERTIFICATE

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 five which may extend to one thousand rupees, or with both.

SECTION 16: PENALTY FOR SECRETING, DESTROYING OR ALTERING REGISTER

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 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.

SECTION 17: FORMAL IRREGULARITY NOT TO INVALIDATE MARRIAGE

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.

"Clause 17.- This new clause lays down general principles on which most discreet Judges would act and have acted."

CHAPTER III- PARSI MATRIMONIAL COURTS

SECTION 18: CONSTITUTION OF SPECIAL COURTS UNDER 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.

SECTION 19: PARSI CHIEF MATRIMONIAL COURTS

The Court so constituted 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 aided14[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.]

SECTION 20: PARSI DISTRICT MATRIMONIAL COURTS

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, 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.]

SECTION 21: POWER TO ALTER TERRITORIAL JURISDICTION OF DISTRICT COURTS

The [State Government] may from time to time alter the local limits of the jurisdiction of any Parsi District Matrimonial Court, and may include within such limits any number of districts under its Government,

SECTION 22: CERTAIN DISTRICTS TO BE WITHIN JURISDICTION TO THE CHIEF MATRIMONIAL COURT

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 included within the jurisdiction of the Parsi Chief Matrimonial Court for the territories under such[State Government] where there is such a Court.

SECTION 23: COURT SEALS

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 Courts shall be sealed with such seal which shall be kept in the custody of the presiding Judge.

SECTION 24: APPOINTMENT OF DELEGATES

(1) The18[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.

(2) 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.

SECTION 25: POWER TO APPOINT NEW DELEGATES

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 or other law for the time being in force [involving moral turpitude], 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].

SECTION 26: DELEGATES TO BE DEEMED PUBLIC SERVANTS

All delegates appointed under this Act shall be considered to be public servants within the meaning of the Indian Penal Code.

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