The Parsi Marriage and Divorce Act, 1936 is legislation that governs marriage, divorce, and other family matters within the Parsi community in India. The Parsis are a minority religious community in India, primarily based in Mumbai, who follow the Zoroastrian religion. The Act was enacted by the British Indian government in 1936 and was subsequently amended in 1988. The Act applies to all Parsis and provides for the registration of marriages and divorces. It also lays down rules for maintenance, custody of children, and other related matters. Under the Act, Parsi marriages can only take place between two Parsis who are of sound mind and have attained the age of 21 years for males and 18 years for females.
The Act also allows for the dissolution of marriage through mutual consent or by the decree of a court. The Act also provides for the appointment of Parsi Marriage and Divorce Registrars. These are responsible for registering marriages and divorces within the Parsi community. The Registrars are appointed by the government and are responsible for maintaining a register of marriages and divorces. The Act mandates payment of maintenance to divorced wife and children for their upkeep and care. The court may grant child custody to the mother or father as per child’s best interests.
Overall, the Parsi Marriage and Divorce Act, 1936 is an important piece of legislation that governs the marriage and divorce laws within the Parsi community in India. It provides for the registration of marriages and divorces. Moreover, it also lays down rules for the maintenance and custody of children and ensures that the rights and interests of all parties involved are protected.
Who is Parsi?
Many people migrated from Persia to the sub-continent of India during the Muslim conquest, that migrated religious group is known as Parsi.
- People who are descendants of original person emigrants.
- A person whose father is or was a Parsi and mother an alien but admitted to the Zoroastrian faith.
- Zoroastrians from Iran who reside in India.
MARRIAGE UNDER PARSI MARRIAGE AND DIVORCE ACT, 1936:
VALID MARRIAGE: Sec 3(1) of this act, provides for the requisite/ essentials for the marriage to be valid under this act- (a) the contracting parties are not related to each other in any of the degrees of consanguinity or affinity.
(b) such marriage is solemnized according to the Parsi form of a ceremony called ‘Ashirvad’ by a priest in the presence of two Parsi witnesses other than a such priest.
(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 completed twenty-one years of age, and if a female, has completed eighteen years of age.
The legitimacy of a child of void marriage-
Parsi law believes that the child shall not be punished for the illegitimacy of its parent. Hence, the child from void marriage is held as a legitimate child. 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. Parsi Act allows children of invalid marriage to inherit property beyond just their parents, unlike Hindu and Special Marriage Act.
MARRIAGE NOT INVALID FOR FORMAL IRREGULARITIES
Formal irregularities mentioned under section 17 of the Act:
- Marriage certificate not certified as per the terms of this act.
- Certificate of marriage not sent to the registrar within the prescribed limit of time.
- The defective, irregular, or incorrect marriage certificate was issued.
The spouse guilty of an invalid marriage, the Priest, any person helping or assisting the Priest, the Registrar, the subordinates and/or associates of Registrars, all are subjected to the penal action. However, under Section 17, the marriages are not held to be invalid because of the Imposition of penalty or because of formal irregularities.
Monogamy is professed as per Parsi law. Therefore, the second marriage is prohibited under this act, during the existence of the first marriage.
Penalty for bigamy
The second marriage is void. Section 5 makes the second marriage penal and provides for a penalty by subjecting the parties to the provision of sections 494 and 495 of the Indian Penal Code. The Priest who ventures to solemnize the second marriage to invites punishment for himself under section 11 of the Act. Punishment for the priest contravening and violating the provisions of Section 4 of the Act is simple imprisonment up to 6 months or with a fine of up to 2000/- or with both.
REMARRIAGE WHEN UNLAWFUL
A Parsi whether he has changed his or her religion or domicile or not shall contract any marriage under this Act in the lifetime of his or her wife or husband except his or her lawful divorce from such wife or husband or after his or her marriage is declared null and void or dissolved contracted marriage contrary to this provision shall be void.
REGISTRATION OF THE MARRIAGE :
Sec 6 – Provide for 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.
Sec 7 – Registrar to be appointed by Chief Justice or State Government within the local limits
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.
Sec 8 – The marriage register is a public document and should 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.
Sec 9 – Copy of certificate sent to registrar general of births, deaths, and marriage
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.
Sec 13 – Penalty for committing to subscribe and attest certificate fine of not exceeding 100 rupees
Every other person required by section 6 to subscribe or attest to the said certificate who shall wilfully omit or neglect so to do, shall, on conviction thereof, be punished for every such offense with a fine not exceeding one hundred rupees.
GROUNDS FOR DISSOLUTION OF MARRIAGE: UNDER Parsi Marriage and Divorce Act
Decree of nullity
If the consummation of marriage is not possible due to the natural case of impotence. Then such marriage can be declared null and void at the instance of either party (husband/wife).
Dissolution of marriage
Husband/wife continually absent from his/her husband or wife for 7 years and shall have not been heard alive during that time, the marriage of such persons, at the instance of either the party be dissolved.
Any married person may sue for divorce on any one or more of the following grounds,
- that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it.
- that the defendant at the time of marriage was of unsound mind and has been habitually so up to the date of the suit.
- that the defendant was at the time of the marriage pregnant by some person other than the plaintiff.
- that the defendant has since the marriage committed adultery, fornication, bigamy, rape, or an unnatural offense.
- that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff.
- That the defendant is undergoing a sentence of imprisonment for seven years or more for an offense as defined in the Indian Penal Code.
- That the defendant has deserted the plaintiff for at least two years.
- Contemplates filing of suit for divorce on the ground that an order has been passed against the defendant.
- That the defendant has ceased to be a Parsi
Both parties may file for divorce together if they have lived separately for a year and don’t want to live together. Consent divorce can be filed after one year of marriage.
RESTITUTION OF CONJUGAL RIGHTS
Conjugal rights mean the right of husband and wife, which they have for each other’s society and for marital intercourse. It is also the mutual right of husband and wife for the ‘consortium’.
CUSTODY OF THE CHILDREN
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.
PARSI MATRIMONIAL COURTS
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.
PARSI CHIEF MATRIMONIAL COURTS – The Court so constituted in each of the Presidency towns shall be entitled to 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
- Interlocutory applications and proceedings;
- Alimony and maintenance, both permanent as well as pendente lite;
- Custody, maintenance, and education of children; and
- All matters and proceedings are other than the regular hearing of cases.
PARSI DISTRICT MATRIMONIAL COURTS – Every Court so constituted at a place other than a Presidency town shall be entitled to 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-
- interlocutory applications and proceedings;
- alimony and maintenance, both permanent as well as pendente lite;
- custody, maintenance, and education of children; and
- all matters and proceedings are other than the regular hearing of cases.
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.
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[…] under Section 32 and 33 of the Indian Divorce Act, 1869, to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936 and to persons married according to the provisions of the Special Marriage Act, Section 22 of […]