Special Marriage Act

and The Parsi Law of

Marriage
Vinay sharma
Roll No 65
Family Law Assignment

Submitted to – Kahkashan Mam

 Special Marriage Act and The Parsi Law of Marriage

Index
1. Acknowledgement

2. Parsi Marriage Act,

1865 [Link]
3.2. Requirements of a Parsi Marriage
[Link]
[Link] breakdown of marriage as a ground of Divorce
[Link] by Mutual Consent
[Link] Separation
3. Indian Divorce Act
4. Bibliography
 Special Marriage Act and The Parsi Law of Marriage

Acknowledgement

I would like to express my special thanks of gratitude to my

teacher Prof. Kahkashan Y. Danyal ma‟am who gave me the
golden opportunity to do this wonderful project on the topic of
“Adoption and Maintenance”, which also helped me in doing a
lot of research and I came to know about so many new things I
am really thankful to her.

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 The Parsi Law of Marriage

Parsi Marriage Act

Introduction

The Parsis immigrated to India nearly 1200 years ago when Persia was overrun by the followers
ofthe Islam. Instead of dying by the sword and surrendering their religion to that of conquers the
followers of Zoroaster preferred to migrate to this country. When they arrived in India in 717
A.D., they entered into an agreement with the Hindu ruler of Sanjan. By the agreement, they
initially settled to respect the cow and observe many customs of the Hindus. With preserving
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their own religion, they adopted the prevailing customs of local population.
The term 'Parsi' is defined in its Section 2(7) as Parsi Zoroastrian who professes the Zoroastrian
religion. A Zoroastriarr, however, need not necessarily be a Parsi. . The word 'Parsi' has only a
racial significance and has nothing to do with his religious profession. The word 'Parsi' is derived
from ' Pers' or 'Fairs' a province in Persia from where the original Persians migrated to India and
12
came to he known as Parsis.
Concept of Marriage Among Parsis Before 1865 –
From their arrival in India up to 1865 the Parsis had no recognized laws to govern their social
relations. When they settled in Western India they probably brought with them a system, both
law and custom, from Persia. But it was unwritten and fell into desuetude, and naturally adopted
13
much ofthe law and usage that obtained in the Hindu community inter alia, as to marriage.
Changes Brought in the Attitude Towards Parsi Marriage by the Parsi Marriage and Divorce Act,
1865 –
The Parsi Marriage and Divorce Act, 1865 for the first time, had made certainty in the
matrimonial law of the Parsis. The Act of 1865 made polygamous marriage as invalid and
imposed a punishment also. The divorce was also introduced and the concept ofindissolubility
ofthe marriage came to an end. The Act made other changes also –

 The Act, 1865 had made sufficient provisions by which polygamous marriage could be
restricted. Section 9 ofthe Act, 1865 had imposed the punishment extendable six months

11 Nooroji v. Kharshedji, I.L.R. 13 Bom. 21.

12 See, Sir Dinshaw v. Sir Jamshedji, 11 Bom. LR 85
13 Peshotam v. Meherbai, 13 Bom. 307.

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 The Parsi Law of Marriage

or penalty extendable to two hundreds rupees or both against a priest who knowingly or
willfully solemnized any marriage contrary to and in violation of section 4 (polygamous
marriages). The penalty was also imposed against attesting witness which had given a
false statement as forgery defined in India Penal Code, 1860 and was also made liable for
14
conviction under section 466 ofthe said code."

The section 4 of the Act, 1865 had abolished the custom of polygamous marriage
prevailing before this Act and declared such marriage as void. Formally, second
marriages among Parsis had been numerous. Without any former precedent ofthe rigid
enforcement of the penalties of the law, such second marriage had been frequent down to
15
the date on which Act XV of 1865 came into operation.

The Act, 1865 made compulsory for officiating priest to issue certificate of marriage
immediately after the solemnization of marriage. The certificate was required to be
signed by the said priest, the contracting parties or their father or guardian when they
were not completed the age of 21 years and two witnesses present at the time of the
marriage. A duty was also imposed by the same section that officiate priest had to sent
the certificate along with a fee of two rupees to be paid by husband, to the
concerned'Registrar who shall had register the marriage and made entries
[Link] Act, 1865 made the registration of Parsi marriage as compulsory.
Section 10 ofthe Act, 1865 had made provision that if any priest neglecting to comply
with any ofthe requisitions affecting him contained in the aforesaid section (section 6)
was punished for a period extendable to three months or with a fine extendable to one
hundred rupees or both. Section 13 of the Act, 1865 had also made liable for conviction if
he was failed to register the marriage in pursuance of certificate of priest.

Before this Act came into operation, a Parsi contracting a second marriage in the lifetime
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of his or her wife or husband could not be punished under Indian Penal Code, I860. The
section 5 ofthis Act laid down the specific provision and the husband or wife ofsecond
marriage was made liable to penalties under sections 494 and 495 ofthe Indian Penal
Code, 1860.

14 Section 12 ofthe Parsi Marriage and Divorce Act, 1865.

15 Merwanji v. Avabai, 2 Bom. 231.
16 Avabai v. Jamasji, 3 B.H.C. 113 at 115.

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 The Parsi Law of Marriage

Requirements of a Parsi Marriage –

The Act of 1865 had laid down essential requisite for validity of a Parsi marriage. Section 3
ofthe Act specified –
(1) The marriage should not be contracted within the prohibited degree of consanguinity and
affinity,
(2) it must be celebrated according to the ceremony called 'Ashirvad'; (3) the ceremony must
be performed by Parsi priest;

(4) the ceremony must be performed in the presence of two "Parsis witness'; and

(5) in case of either party being under twenty one, the consent of his or her father or
guardian must be previously obtained. A list ofthe persons of prohibited degree had been
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published in Gazette of India
According to the list, a man was prohibited not to marry with his thirty-three relations and
woman was also prohibited not to marry with her thirty-three relations. The prohibition was
made on the ground of consanguinity and affinity.
The observance of 'Ashirvad' ceremony was also made compulsory. The ceremony has been
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explained by Dosabhai Framji Karaka in his History of the Parsis
One of the essential requisite for a valid marriage according to section 3 of the Act, 1865 was
the consent of guardian or father must be obtained in case where either party was under
twenty one years of age at the time of marriage. Section 3 of the Indian Majority Act, 1875
provides the age of majority at eighteen years, but section 2, clause (c) ofthe Act, 1875
provides that the Act shall not affect the capacity of any person to act in matter of marriage,
dower, divorce and adoption. Therefore, the Court held that for Parsi marriage the age of
19
majority would be 21 year and provision ofIndian Majority Act, 1875 would not apply.
Nullity of Marriage –
The Act, 1865, provided provisions for nullity of marriage. The grounds were specified three
in numbers. They were lunacy or habitually unsoundness mind of the either party to the
20
marriage, or non consummation of marriage due to natural cause. Here, the Act, 1865 also
required that the petitioner had to established that the respondent was lunatic or of unsound

17 Gazette ofIndia, 9th September, 1865, at 981, 982.

18 Dosabhai Framji Karaka, 1884, History of the Parsis, Vol. I, at 178
19 Bai Shirin bai v. Kharshedji, 22 Bom. 430.
20 Section 27 ofthe Parsi Marriage and Divorce Act, 1865.

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 The Parsi Law of Marriage

mind at the time of marriage and still continued up to passing of decree. Similarly, he had,
also, to establish that the consummation of marriage became impossible due to impotency of
the respondent by reason of natural cause. If the petition was aware of the fact of lunacy or
unsoundness of the respondent at the time of the marriage, he was declared not to get a
decree of nullity on such grounds in the Act. The Act, 1865 imposed a strict burden of proof
on the petitioner in case of impotency. Here, he had to prove an absolute impotency of the
respondent was the cause for not consummation of marriage and in future it was impossible
to consummate the marriage due to such impotency. Dissolution ofMarriage

The marriage under the Act, 1865 was dissolved when husband or wife had been continuously
absent and was not heard by those persons who would naturally have heard of him or her had he
21
or she been alive. On this ground also, the marriage might be dissolved at the instance of either
party thereto and not by the third party. Section 30 of the Act, 1865 also provided for dissolution
of the Parsi marriage on fault grounds as obtain under English Law.
22
Sorabji v. Buchoobai - The court had expressed the view on the point of age ofparties in
respect to filling of the suit that for the purposes of this Act, age of majority would be 21
years and not 18 years. The consent of guardian was required if any parties had been minor.

21 Section 29 ofthe Parsi Marriage and Divorce Act, 1865.

22 18 Bom. 366

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 Special Marriage Act and The Parsi Law of Marriage

DIVORCE

Section32 of the Act provides the following grounds for divorce –

(a) that the marriage has not been consummated within one year after its
solemnization owing to the willful refusal of the defendant to consummate it;
(b) that the defendant at the time of the marriage was of unsound mind and has been
habitually so up to the date of the suit: Provided that divorce shall not be granted
on this ground, unless the plaintiff
(1) was ignorant of the fact at the time of the marriage, and
(2) has filed the suit within three years form the date of the marriage;

(bb) that the defendant has been incurably of unsound mind for a -period of two years
or upwards immediately preceding the filing of the suit or has been suffering
continuously or intermittently from mental disorder of such kind and to such an
extent that the plaintiff cannot reasonably be expected to live with the defendant.
Irretrievable breakdown of marriage as a ground of Divorce
Irretrievable breakdown of marriage as a separate ground of divorce has not yet found a place in
the marriage statutes in India, viz., the Hindu Marriage Act 1955, the Special Marriage Act 1954,
the Divorce Act, 1869 (2001) the Parsi Marriage and Divorce Act 1936, the Dissolution of
Muslim Marriage Act 1939. The foundation of a sound marriage is tolerance, adjustment and
respect for one another. Tolerance to each other‟s fault to a certain bearable extent has to be
inherent in every marriage. Petty quibbles and trifling differences should not be exaggerated and
magnified to destroy what is said to have been made in heaven. All quarrels must be weighed
from that point of view in determining what constitutes irretrievable breakdown of marriage in
each particular case and always keeping in view the physical and mental conditions of the
parties, their character and social status. A too technical and hypersensitive approach would be
counter-productive to the institution of marriage. The Courts do not have to deal with ideal
husbands and ideal wives. They have to deal with a particular man and woman before them.

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 The Parsi Law of Marriage

Where the parties were living separately for sixteen years without any chance of reconciliation,
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the Court held that marriage had broken down and dissolution of marriage was justified. It may
be noted that in this case the term “irretrievable breakdown” has not been used; only “broken
down” has been stated. But lately even the Apex Court is using the phrase “irretrievable
24 25
breakdown of marriage”. In Gajendra v. Madhu Mati, it was held that where parties have
been living separately for seventeen years, the chance of their re-union may be ruled out and it
may be reasonable to assume that the marriage has broken down irretrievably. So the marriage
should be dissolved.
Divorce by Mutual Consent
As per the provisions of Section 32-13 of the Parsi Marriage and Divorce Act a suit for divorce
by mutual consent may toe filed by both the parties to a marriage together, whether such
marriage was solemnised before or after the commencement of the Parsi Marriage and Divorce
(Amendment), Act, 1939. Section 32--B of the Act makes it abundantly clear that its provision
will have a retrospective effect. Divorce by mutual consent can therefore be sought by a Parsi
couple irrespective of when their marriage was solemnized i.e. before or after the
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commencement of the amending Act of 1938.
The requirements of seeking divorce by mutual consent are –

1. Both spouses should together present a suit for divorce

2. The spouses should have been living separately for a period of one year or more
3. The spouses could not adjust with each other and had not been able to live
together

When the decree for divorce by mutual consent is passed, the marriage-tie gets
dissolved from the date of decree and not with effect from the date of the presentation
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of petition

23 Krishna Banerjee v. Bhanu Bikash Bandyopadhyay AIR 2001 Cal 154 (DB).
24 Jordan Diengdeh v. [Link] AIR 1985 SC 925
25 II (2001) DMC 123 (MP)
26 M. Shabbir and Manchanda, Parsi Law in India, p. 62 (1991).
27 Ravi Shankar v. Sharda,, AIR 1978 MP p.44.

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 The Parsi Law of Marriage

Judicial Separation –
The main improvements introduced by the .1936 Act were that it put husband and wife on an
equal footing so far as judicial separation was concerned, made judicial separation obtainable on
all grounds of divorce alognwith cruelty and declared failure to comply with a restitution decree
to be a ground for divorce,, It is also provided that a Parsi would be prohibited from remarrying
even if he or she changed his or her religion or domicile unless his or her previous marriage was
dissolved under the Act. If a Parsi, in violation of Section 4(1), marries again in the life-time of
his or her wife or husband before the dissolution of earlier marriage by a competent court hce or
28
she is punishable under criminal law
Section 4 of the Parsi Marriage and Divorce Act 1936, therefore classifies even genuine converts
to Islam into two classes - (1) converts from Parsi Community and (2) converts from other
communities and [Link] against the former by depriving them of the right to plurality of
wives permitted under the Muslim Law As as ready noted , the discriminationis absolutely based
on ethinicity and race and is thus violative of Article 15. The Parsis have accordingly been
denied Equality before the Law and Equal protection of the Laws in violation of Article .14 also.
This has again been reiterated with clearer assertion in Section 52(2) providing that once a Parsi
has married under this Act, or the preceding Act of 1865, he "shall remain bound by this Act,"
"even though such Parsi may change his or her religion," until such marriage terminates in due
course.
Section 34 of the Parsi Marriage and Divorce Act, 1936, enables either par ty to t he mar r i ag e
to sue for 'Judicial Separation' on any of the grounds for which a party could have filed a suit for
divorce; or , any of the grounds that the defendant has been guilty of such cruelty to him or her
or their children 5 or, has used such violence, or has behaved in such a way as to render it, in the
judgment of the court, improper to compel him or her to remain with the defendant.

28 8. V. B. ILR 16 Bom. 639.

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Indian Divorce Act

Under all the Indian Personal laws, dissolution of marriage is based on guilt or fault theory of
divorce. It is only under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 and
the Parsi Marriage and Divorce Act, 1936 that divorce by mutual consent and on the basis of
irretrievable breakdown of marriage are also recognized. Further, under Muslim law, the
husband as the right to unilateral divorce. In order, to make the law more equitable the
Dissolution of Muslim Marriages Act, 1939 provides a woman married under Muslim law
with the option of seeking divorce on certain fault grounds.

As the field of Personal Law is a vast field so I have restricted the scope of this research paper
to the fault ground theory of divorce under Indian personal law. The research paper analyzes the
common aspects between the provisions of the various personal law statutes and further look at
the legal implications of these.

Also there are elements of difference between the various statutes, keeping in mind the
feasibility of trying to resolve such differences in order to come up with a single, comprehensive
law, at least as regards divorce.

The Parsi Marriage and Divorce Act, 1936 recognizes the principle of equality and lays down
grounds for divorce which either spouse can avail of, for example, it recognizes unnatural
offences as a ground for divorce for either spouse, unlike the Hindu Marriage Act, 1955 and the
Special Marriage Act, 1954.

It is only the Indian Divorce Act, 1869 that discriminates against the wife.

Hindu law gives the following four grounds for the wife alone -

That the husband has another wife from before the commencement of the Act, alive at the time
of the solemnization of the marriage of the petitioner. For example, the case of Venkatame v.
Patil , where a man had two wives one of whom sued for divorce, and while the petition was
pending, he divorced the second wife. He then averred that since he was left only with one wife,
and the petition should be dismissed. The Court rejected the plea.

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 Special Marriage Act and The Parsi Law of Marriage

That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or
bestiality

Non-resumption of cohabitation for one year after an order of maintenance

That the marriage was solemnized before she attained the age of fifteen years, and she
has repudiated the marriage after attaining that age, but before the age of eighteen.

Now, the Special Marriage Act, 1954, provides only two grounds of divorce to the wife, namely,
rape, sodomy or bestiality and the on-resumption of cohabitation after an order of maintenance.

Muslim law provides nine-fault founds to the wife alone, seeing that the husband has the
provision of unilateral divorce in his favor. These grounds, briefly put, are -

Whereabouts of the husband not known for four years

Neglect or failure of the husband to pay maintenance for a period of two years

Sentence to a seven year imprisonment for the husband

Failure to perform marital obligations by the husband for a period of three years

Impotency of the husband at the time of marriage and after

Insanity of husband for a period of two years or that he is suffering from leprosy or a virulent
venereal disease

That the marriage was solemnized before she attained the age of fifteen years, and she
has repudiated the marriage after attaining that age, but before the age of eighteen.

On the grounds of cruelty – The concept of cruelty is clearly spelt out, and has been
described earlier in the project

Any other ground recognized as valid under Muslim law.

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 Special Marriage Act and The Parsi Law of Marriage

CONCLUSION

A single codified law does not define the personal law, in India. We have the Hindu, Muslim,
Christian, Jewish and Parsi laws. There are various matrimonial statutes laying down the
provisions for each of these laws. Even the institution of divorce has different implications under
these laws. While it is only under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954
and the Parsi Marriage and Divorce Act, 1936 that divorce by mutual consent and on the basis of
irretrievable breakdown of marriage are also recognized, Muslim law provides the husband with
the right of unilateral divorce, while the wife can only rely on certain prescribed fault grounds.
Fault grounds as the basis for divorce are given in all the Indian matrimonial statutes. The
researcher has focused on these fault grounds in this project.

I realized that there are a number of provisions that quite similar between the various statues and
the kinds of problems that arise before courts, when it comes to implementation of such rules.

I looked at the elements of difference between the various statutes, looking at the differences
that used to exist in the personal laws earlier and how some changes are being brought, through
amendments to reconcile them with the changing socio-religious circumstances.

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 Special Marriage Act and The Parsi Law of Marriage

BIBLIOGRAPHY

 Modern Hindu Law, Paras Diwan, 43rh Edition

 [Link]
 [Link]
 [Link]
 [Link]
 [Link]
 [Link]

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