CHAPTER - VI

CHANGING ATTITUDE OF PARSIS

TOWARDS MARRIAGE
 CHAPTER - VI

Changing Attitude Of Parsis Towards

Marriage

VLI. Introduction:

The Parsis immigrated to India nearly 1200 years ago when

Persia was overrun by the followers of the 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 their own
religion, they adopted the prevailing customs of local population.1

VI.II. 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 much of the law and usage that obtained in the Hindu
community inter alia, as to marriage2. Their laws in India largely rested
on traditions and compilations by their learned men3.

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

2.- Peshotam v. Meherbai, 13 Bom. 307.
3. Deenshah v. Pestonji, 2 Bom. 393.
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Previous to the establishment of the High Court of Judicature,

Bombay, the Parsis of the town of Bombay, a body constituting the
preponderating majority of the entire Parsi population of India, far in
advance of any other portion of the Parsi race in wealth, intelligence and
civilization, had, since the Privy Council decision in 1856, been living in
a state of lawlessness as to all that regards the marriage tie. They had no
law at all on the subject. Each man did as seemed well in his own eyes4.

The urgency of taking some action was demonstrated in the year

1856 when the Privy Council decided in the case Ardaseer Cursetji v.
Perozeboye5 that the Supreme Court on its ecclesiastical side had no

jurisdiction to entertain a suit brought by a Parsi wife against her

husband for restitution of conjugal rights, or for maintenance. This
decision practically left the Parsis without any tribunal to enforce the
duties and obligations arising out of the marriage union with exception
to those connected with mere property. The Parsis thereupon made
repeated representations to the Government, as a consequence whereof a
Commission was appointed by the Bombay Government to enquire into
usage recognized by Parsis in India, and into the necessity of special
legislation in connection with them. A large body of the leading Parsis
formed themselves into the Parsi Law Association, and on the 15th
February, 1862 a numerously attended deputation from the Managing
Committee of the association presented the draft of a "Supplemental
Code of Betrothment, Marriage and Divorce" to the said Commission

4. Report of the Commission appointed by Bombay Government,

dated 13th October, 1862.
5. 6 M.I.A. 348.
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appointed by the Government of Bombay6. 7The draft was substantially

accepted by the government.

Introducing the Parsi Marriage and Divorce Bill in the Legislative

Council of India, Hor'ble Mr. Anderson said:

"Previous to the legislation of 1865, the law applicable to

Parsis was the English law, except so far as it was varied
by the Act IX of 1837, and except as to marriage, bigamy,
and since the decision of the Privy Council in Ardaseer v.
Perozeboye1, except as to matrimonial suits of the
ecclesiastical side of the court."

Before the year 1865, the English law was made applicable to the
Parsis, who had scarcely the idea of illegitimacy, and the law of divorce
was applied to them, to whom the indissolubility of marriage and the
pecuniary penalty of dishonour were equally abhorrent.

The necessity for special legislation regulating the law of

marriage and divorce among Parsis had long been foreseen.

The efforts of the Parsis did not go in vain, the British

Government vindicated their moral law by enactment on 7th of April
1865 known as "The Parsi Marriage and Divorce Act, 1865."

VI.III. 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

6. Report of the Commission appointed by Bombay Government,

dated 8th October, 1862.
7. 6 M.I.A. 348.
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made polygamous marriage as invalid and imposed a punishment also.

The divorce was also introduced and the concept of indissolubility of the
marriage came to an end. The Act made other changes also:

1. 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 of the rigid enforcement of
the penalties of the law, such second marriage had been frequent
down to the date on which Act XV of 1865 came into operation8.

Unless a decree of nullity of marriage under section 27 or 28

of this Act or a decree for dissolution of marriage under section 29 of
this Act or a decree of divorce under section 32 of this Act was
obtained, no Parsi could legally remarry in the life of his or her wife
or husband. Then again the provision of the section 43 of this Act
had to be complied with. That section allowed the respective parties
to marry again (as if the prior marriage had been dissolved by death)
only when the time for appealing (three calendar months) against any
decree dissolving a marriage shall have expired without any appeal
being presented or when any such appeal shall have been dismissed
or when, in the result of any such appeal, any marriage was declared
to be dissolved.

2. Before this Act came into operation, a Parsi contracting a second

marriage in the lifetime of his or her wife or husband could not be
punished under Indian Penal Code, I8609. It is submitted that the

8.- Merwanji v. Avabai, 2 Bom. 231.

9. Avabai v. Jamasji, 3 B.H.C. 113 at 115.
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reason was obvious due to technicality of section 494 of Indian Penal

Code, 1860 whereby the requirement has laid down for application
of the section that such marriage should be void. Since before the
enactment of 1865, such Parsi marriage was not declared as void and
provision of section 494 of Indian Penal Code, 1860 was not
applicable in case of second marriage.

The section 5 of this Act laid down the specific provision and
the husband or wife of second marriage was made liable to penalties
under sections 494 and 495 of the Indian Penal Code, 1860.

3. 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 accordingly10.

The Act, 1865 made the registration of Parsi marriage as

compulsory. Section 10 of the Act, 1865 had made provision that if
any priest neglecting to comply with any of the 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

10. Section 6 of the Parsi Marriage and Divorce Act, 1865.

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liable for conviction if he was failed to register the marriage in

pursuance of certificate of priest,

4, The Act, 1865 had made sufficient provisions by which polygamous

marriage could be restricted. Section 9 of the Act, 1865 had imposed
the punishment extendable six months 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
conviction under section 466 of the said code."11

VI.IV. Essentials of a Parsi Marriage :

The Act of 1865 had laid down essential requisite for validity of a
Parsi marriage. Section 3 of the 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 of the persons
of prohibited degree had been published in Gazette of
India12 by Governor-General of India in Council after due
inquiry.

11. Section 12 of the Parsi Marriage and Divorce Act, 1865.

12. Gazette ofIndia, 9th September, 1865, at 981, 982.
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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 explained by Dosabhai Framji
Karaka in his History of the Parsis13. First of all the bride and
bridegroom are seated opposite each other on handsome chairs, and then
a piece of cloth is held between them as a curtain so as to screen them
from each other's sight. Under this curtain they are made to hold each
other's right hand in their grasp. Then another piece of cloth is tied
together by a double knot. In the same way raw twist is taken and wound
round the pair seven times by the officiating priest, who during this
performance repeat the short prayer of Yatha Ahu Vairyo. On
completing the seventh round, the twist is tied seven times over the
joined hands of the couple, as well as round the double knot of the ends
of the cloth previously put about them. When this is over, incense is
burnt on a fire placed in a flat metallic vase, after which the curtain is
suddenly dropped down, and the bride and bridegroom, who have each
been provided with a few grains of rice, hasten to throw them at one
another. This is followed by a clapping of hands from the ladies, who
are seated round the bridal pair, and the applause is taken up by the
gentlemen outside. After throwing the rice the couple sit side by side,
when the recital of 'Ashirvad' or blessing by two 'dasturs' or chief

13. Dosabhai Framji Karaka, 1884, History of the Parsis, Vol. I, at

178.
 161

priest follows; one of these stands before the bridegroom and the other
before the bride.

On the conclusion of this the senior 'dastur' begins the more

solemn part of the marriage ceremony, and pronounces the following
blessings: "May be omniscient Lord bless you with many sons and
grandsons, with good livelihood, heart-ravishing friendship, long life,
and an existence of one hundred and fifty years".

Two men are seated near the couple, one by the side of the boy
and one by the side of the girl, as representing their parents or guardians.
The officiating priests ask then whether the marriage receives their
consent. The person representing the father of the bridegroom is first
asked the following question. 'In the presence of this assemblage which
has gathered here in this town, the priest specifying the day, month and
year of emperor Yazdezard the king of the Sassanian dynasty of
auspicious Iran, say whether you have consented according to the rules
and custom of the Mazdayasnan religion to take this bride in marriage
for this bridegroom on a promise of paying her two thousand 'dirhams'
of pure white silver and two 'denars' of red gold (of the coinage) of the
city of Nishapore?

After this follows an earnest supplication to the Almighty to

bestow upon the newly married pair good moral and social qualities. In
this prayer are recited the names of the thirty angles after whom the
thirty days of a Parsi month are called, and who are supposed to be
guardian spirits presiding over the good qualities enumerated.
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All this spoken by the 'dastur' in the Pazand language, which,

after the Pehlevi, was the current language of Persia, and which was
very commonly spoken in the latter days of the Sessanian dynasty. It is
very like the Persian language. When this is finished some blessings is
recited in the language of the Avesta itself. These consist of a few
passages from the latter part of the 'Yasna'.

Lastly, follow some blessings in the Pazand language are

mentioned the names of the departed kings and heroes of the Kayanian
dynasty of Parsia. The priest calls upon the couple to imitate those
qualities which have made these men famous. They also name the
principal objects of the creation, such as the sun, moon etc. and the wish
is expressed that the pair may possess the attributes which those planets
are supposed to represent.

Then follows a repetition of a part of these blessing and the

accompanying advice in the Sanskrit language. This is done because the
Parsis who first immigrated to India after the defeat of the Persians
under their last king Yazdezard promised the Rana of Sanjan, on whose
shores they landed that such a course would be observed. The whole is
brought to a conclusion with the recital of "Tandarusti" i.e. a blessing
invoking the bestowal of physical strength, energy, and health on the
newly married pair.

The Court has also held that under Act, 1865 'Ashirvad'
ceremony is sufficient for valid marriage14. In the fact of case, the

petitioner also had alleged that at the time of marriage he was nineteen

14. Dorabjiv. Jerbai, 16 Bom. 136.

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and no consent of his guardian or mother was taken. But the Court had
not given much weight to this allegation and held marriage as valid.

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)
of the 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 held15 that for Parsi marriage the age of majority
would be 21 year and provision of Indian Majority Act, 1875 would not
apply.

The Act, 1865 contains no provision as to the age at which a

Parsi can contract marriage. Though the legislature in section 37
impliedly recognized the marriage of a Parsi woman under the age of
sixteen years, it did not deal with the age at which a Parsi marriage
could validly contracted. That matter was left to the general law which
governs Parsi in that particular just as the English Marriage Act (4 Geo.
IV. C. 76) leaves the same matter to be deal with by the Common Law of
England. But in Ardaseer v. Perozeboye16, it was assumed by Privy
Council that the validity of a Parsi marriage must be determined by Parsi
law and not by English law. That opinion was expressed in a case which
was brought in the late supreme Court on its ecclesiastical side, but the
dictum is of general application, with even more force outside the limits

15. Bai Shirin bai v. Kharshedji, 22 Bom. 430.

16. 6M.I.A. 348.
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of the Presidency Town where under Regulation IV of 1827, the law to

be observed was, in the absence of Acts and Regulations, the usage of
the country in which suit arose : if none such appears, the law of
■#

defendant, and in the absence of specific law and usage, justice, equity
17
and good conscience alone .

The Act did not make any change in the scheduled district and
Parsis of this area were left to govern by no law but only the their
customs.

The concept of indissolubility of marriage has been changed and

the Act, 1865 specified certain grounds on which the Parsi marriage
might be dissolved.

VI.V. 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 marriage18 or non­
consummation of marriage due to natural cause.19 Here, the Act, 1865
also required that the petitioner had to established that the respondent
was lunatic or of unsound 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

17. Id. at 356.

18. Section 27 of the Parsi Marriage and Divorce Act, 1865.
19. Section 28 of the Parsi Marriage and Divorce Act, 1865.
 165

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.

VI.VI. Dissolution of Marriage :

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 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.

The court had expressed the view on the point of age of parties 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 The court had also held22
that if both the parties were domiciled within the territorial jurisdiction
of the court at the time of marriage, and were so domiciled at the time of
the filling of suit, and adultery was also committed within jurisdiction
then the court jurisdiction was not barred merely by the circumstances

20. Section 29 of the Parsi Marriage and Divorce Act, 1865.

21. Sorabji v. Buchoobai, 18 Bom. 366.
22. Dorabji v. Jerbai, (1892) 16 Bom. at 139.
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that the parties were married at Akola. Similarly, where a Parsi before
the Act came into operation, had contracted a second marriage during
the lifetime of his first wife, from whom he had not been divorced and
whom he had willfully deserted for two years. The court held23 that the
fact alleged in the plaint did not amount to 'bigamy coupled with
adultery' nor to 'adultery coupled with willful desertion' with in the
meaning of section 30 of the Act XV of 1865, as a second marriage
contracted by the Parsi during the life time of his first wife was not
unlawful before the Act came into operation, and the Act itself did not in
any way affect the validity or the consequences of such a marriage.

The section 30 of the Act, 1865 provided the grounds of divorce

to both the husband as well as wife. But a favour was made to wife that
she was made able to dissolve her marriage on more than one ground
whereas the husband had only one ground.

In the same way, another favour was made for wife that she was
made entitle to demand a decree of judicial separation on additional
grounds under section 31 of the Act, 1865. Three grounds had given for
such purpose in this Act : (i) cruelty or personal violence by the
husband rendering it improper to compel the wife to live with her
husband; (ii) his conduct affording her reasonable grounds for
apprehending danger to life or serious personal injury; and (iii) the
husband is openly bringing a prostitute into or allowing to remain in the
wife's abode.

The word 'cruelty' in this section means 'legal cruelty', i.e. injury
causing danger to life or limb or health, or reasonable apprehension of
injury to life or limb or health.

23. Avabai v. Jamasji, 3 B.H.C. 113.

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VI.VII. Marriage is Not Sacrament:

One peculiarity of the Parsi marriage was that it did not enforce
the infant marriage unlike Hindu Law. It means that the attitudes
towards marriage of Parsi was more secular in comparison to the attitude
of the Hindus or Muslims.

The section 37 of the Act, 1865 was only section in which

reference to infant marriage was made. The section laid down that no
suit could be brought to enforce a marriage if at the date of the suit, the
husband was not over sixteen and the wife was not over fourteen.
Although practice of infant marriages was one which founds no warrants
in their own religious system. The Parsis in Western India had in the
course of time generally adopted it from their Hindu neighbours as to
give such marriages amongst themselves all the validity they possessed
amongst Hindus, making them independent of any question of
subsequent consent or non consent by the parties thereto.24

There is no doubt that they adopted amongst other things, the

injurious practice of infant marriage. From the high level of education
and civilization which the Parsi community of the days reached, these
marriages were discountenanced, but such marriages were practiced and
recognized. The Parsi Law Association in 1862 sent the Parsis delegates
to Law Commission, which produced the Parsi Marriage and Divorce
Act, 1865, eighty five delegates, all of them leading Parsis, to ask that
the panchayat should have power to dissolve marriage contract before
puberty "in consequence of the custom of marriages taking place during

24. Peshotam v. Meherbai, 13 Bom. 303.

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infancy amongst the Parsi community." This was refused; the

Commission declined to insert either provision or any explicit legislative
sanction or prohibition of infant marriages being a matter of custom
which though it appeared to be injurious, was yet admitted by the Parsi
community.25

VI.VIII. Changes Brought in Attitude of Parsi Marriage

by the Parsi Marriage and Divorce Act, 1936 :

The Act of 1936 has made following changes :

VI.VIII.I. Change in Prohibited Degree of Relationship :

The section 3 of the Parsi Marriage and Divorce Act, 1936

corresponds to the old Act of 1865. But few changes have been
introduced; the table of the prohibited degree is changed. The new table
is based on clear principles in- accordance with Parsi religion and
custom, and is more concise and at the same times more comprehensive
than the past one.

The sub section 2 of the section 3 has been added as a new

provision by which legitimacy is provided to all children irrespective of
the fact that the marriage, out of which she/he bom, is invalid under the
subsection (1) or not.

VT.VIII.II. Bigamy Prohibited:

Section 4 and 5 of the Act, 1936 declares a second marriage of

any Parsi during the life time of his or her husband or wife with out

25. Id. at 311, 312.

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dissolution or divorce of such marriage, as null and void and that Parsi
shall be liable for punishment under 494 or 495 of Indian Penal Code,
1860.

The section correspond to the section 4 and 5 of the previous Act,

1865. The alteration is made by Act, 1936 to suit altered circumstances.
The present law provides the dissolution of a previous Parsi marriage
before contracting a new one as essential, as in 1865 it was not
contemplated that a Parsi could contract any other than a Parsi marriage
under the Parsi law. At present time of such other marriage are fairly
common. Such marriage while subsisting outlet to be a bar to a marriage
under Parsi law, exactly as it would be a Christian marriage or one under
the Special Marriage Act, 1954.

VLVIII.ni. Registration of Marriage-Compulsory :

The second part the Parasi Marriage and Divorce Act, 1936
requires the registration of the Parsi marriage in the same way as was
required in the previous Act, 1865. But Act, 1936 introduces the
provision relating to registration of divorce also. Section 10 of the Act,
1936 imposes a duty on the court which passes a decree for divorce,
nullity or dissolution, to sent this decree for registration to Registrar of
marriage within its jurisdiction. The Registrar shall enter the same in a
register to be kept by him for the purpose. The provision of the part II of
the Act is made applicable to the Registrars and registrations of
marriage.

This provision helps in preventing the second marriage (bigamy).

The Act, 1936 provides foil facility to Registrar that he knows about all
 170

the Parsi marriage solemnized as well as the divorces there in within its
jurisdiction. It seems to appear that the Knowledge furnished to
Registrar has the purpose that he may refuse to registration of a second
marriage.

But the purpose of this provision has been mitigated by another

provision of section 17 of the Act, 1936. The section declares that no
marriage shall be deemed to be invalid solely by reason that it was not
certified under section 6 or that the certificate was defectives, irregular
or incorrect. This new section lays down the general principles
enunciated in Peshottom v.Meharbai26 and Avabai v. Khodabad21.

VLIX. Ground for Nullity of Marriage-Reduced :

The present Act of 1936 also provides the ground of nullity of

Parsi marriage. But a decree of nullity can only obtained on the ground
that the consummation of marriage is impossible due to natural cause.
The other ground of nullity which was mentioned in the old Act of 1865
was where either party to the marriage was lunatic or of habitually
unsound minds at the time of marriage have been dropped out and have
been made a ground of divorce by Act of 1936. The Court has
interpreted the natural cause as to include impotency of either party. In
the case of S.v.B.28, where the husband was impotent as regard the wife
only has been held to be a sufficient cause for a declaration of nullity of
the marriage even though the husband might be potent as to other
women.

26. I.L.R. 13 Bom. 302.

27. I.L.R. 45 Bom. 146.
28. (1892) 16 Bom. 639.
 171

The Supreme Court29 has considered the potency of party as very

important factor for the marriage. The person who is impotent, his right
of marriage has been held to be suspended during the impotency. In this
case, the Supreme Court opens new horizon of the article 21 of the
Constitution and right to marriage has been held as fundamental right
under this article. But the impotent person can not enforce this right till
he is cured.

VI.X. Change in Concept of Divorce :

The concept of divorce has been introduced by the present Act of

1936 and the largest amount of alteration has been made in accordance
with the sentiments and views of the community. The sexes have been
put on equality. Several new grounds for divorce have been added. The
time within which suits should be filed had been defined instead of
leaving to the parties in dilemma. Most of the grounds enumerated for
divorce in section 32 of the Act, 1936 were based on fault of either party
wherqas irretrievable break down of marriage had also been recognized.
The eight fault grounds are given in section 32 and still continues - (a)
the marriage has not been consummated withjn one year of marriage
due to willful refusal of the defendant, (b) the defendant was of unsound
mind at the time of marriage and continued up to the date of suit, (c)
defendant was pregnant at the time of marriage by person other than
plaintiff, (d) the defendant has been guilty of committing adultery, or
fornication or bigamy or rape or an unnatural offence, since
solemnization of marriage (e) the defendant has since marriage

29. Mr. X' v. Hospital 'Z', AIR 1999 S.C. 495.

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voluntarily caused grievous hurt or infected plaintiff with venereal

disease or where the defendant is the husband, has compelled his wife
for prostitution, (f) the defendant is undergoing a sentence of
imprisonment for seven year or more for an offence under Indian Penal
Code, 1860 and has undergone one year's imprisonment, (g) The
defendant has deserted the plaintiff for at least three years, (h) The
defendant has ceased the Parsi.

The two more grounds were specified in the same section which
apparently look like fault grounds of the either parties but the effect of
these were like the ground of irretrievable break down of marriage. They
were (a) the decree or order of judicial separation or an order of
maintenance has been passed against the defendant and the parties have
not had marital intercourse for three years or more, (b) the defendant has
failed to comply a decree of restitution of conjugal right for a year or
more. These were repealed by the Amendment of 1988 and these
grounds have been specified with little alteration as ground of
irretrievable break down. The first ground under the Act of 1865
contained two sub grounds on which divorce could be obtained, were
failure of marital intercourse for three years or more after passing the
decree of judicial separation. This was repealed by the Amendment of
1988. Where as failure of marital intercourse for three years or more
after maintenance decree has been retained as a fault ground even after
the Amendment of 1988.

The Court has applied section 32 only in cases where the

marriage was valid. If the marriage was not valid, the Court held it was
no marriage at all and cannot be dissolved. The question of the validity
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of a marriage must be considered incidentally with the question whether

the decree can be made for its dissolution. The question must be
considered with reference to the lex loci contracts. In a place where there
is no established rule or usage as to the requisites of a valid Parsi
marriage, the rule may safely be assumed to be in accordance with the
British Indian statute. Thus a Parsi marriage performed in Berar to
which the Act of 1865 did not extend had been held to be a valid
marriage capable of being dissolved where it is found that the
requirements of section 3 were complied with when the parties were
married30.

Now, since the Act of 1936 apply to the whole of India except the
State of Jammu & Kashmir therefore the validity of marriage can be
judge under section 3 in order to provide divorce under the Act even if
the marriage was performed in the State of Jammu & Kashmir too.

The first ground of divorce is unique in the Parsi Marriage and

Divorce Act, 1936 which are not directly specified in any other marriage
and divorce laws i.e. non consummation of marriage by willful refusal
of any party. The second ground is unsoundness of mind of either party.
A limitation period of three year from the date of marriage has been
prescribed for filling a suit on these grounds. It has also been made
essential that the plaintiff should be ignorant of fact at the time of the
marriage. It is submitted that prescribing limitation period of three years
is not sound. Because some times the aggrieved party may be in a hope
that the unsoundness of mind may be cured by the treatment and he
waits for more than three years. Then he will be deprived off from
filling a suit of divorce on this ground. However, the Court has held that

30. Dorabji v. Jerbai, (1892) 16 Bom 139.

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both the conditions must be satisfied for granting such relief and if there
is delay in filling the suit within three years from the date of marriage,
the suit is not maintainable31. But the period during which the husband
was confined in Lunatic Asylum has not to be taken into consideration
in computing the limitation period32. It means if the recourse of private
treatment or treatment other than Lunatic Asylum has been taken place
then plaintiff will not get benefit of it.

VLXL Change in Concept of Judicial Separation :

The change has been made in the concept of the judicial

separation. Previously, the wife was only entitled for this decree on
certain specified grounds. But by the Act of 1936, the husband and wife,
both are made entitled to get judicial separation decree either on the
same grounds on which a decree of divorce could be obtained or on the
grounds of cruelty. The latter ground has been repealed by the
Amendment Act of 1988. The sexes have been put on equality. The
cruelty has been explained as a ground of judicial separation when either
party was the guilty of it against other party or his/her children or had
used personal violence or had behaved in such a way as to render it, in
the judgement of the court, improper to compel him or her to live with
the guilty party.33 The Bombay High Court34 has interpreted the term

cruelty as there must be actual violence of such a character as to

endanger personal health, bodily as well as mental, or safety, or there

31. P.B. Pothiwala v. S.P. Pothiwala, A.I.R. 1938, Bom. 65.

32. Kaikhushroo Tantrav. Meherbai Tantra, A.I.R. 1946, Bom. 211.
33. Section 34 of the Parasi Marriage and Divorce Act, 1936.
34. Cowasji Nusserwanji v. Shehra Cowasji, A.I.R. 1938 Bom. 81.
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may be reasonable apprehension of it. Physical violence not necessary to

constitute legal cruelty. Single act of gross cruelty, if it is such as to
raise an apprehension of further acts to follow is enough. The improper
behaviour that would warrant an order for judicial separation must be
such as would make it improper for husband and wife to live together in
future. The safest test in arriving at any conclusion regarding these
would be to consider the course of the conduct of the parties towards
each other during their married lives and to see whether the plaintiff has
shown just and lawful grounds not only for living separately from the
defendant but also for asking for the decree of the court for judicial
separation.35 The same High Court in another case36 has held that notion
of cruelty under the Hindu Marriage Act, 1955 cannot be imported into
Parsi matrimonial law.

VLXII. Wife’s Right to Get Permanent Alimony :

The Act of 1936 has made a Parsi woman entitled for permanent
alimony only when she remains chaste and unmarried.37 The court has
been empowered to pass an order for reasonable monthly payments to
wife for her maintenance 38 Such order shall be executed according to
the provisions of the Civil Procedure Code, 1908 in a case of
disobedience by the husband. The court has also been empowered to

35. Ibid.
36. Pistonji KekobundBharoocha v. Aloo, A.I.R. 1984 Bom. 75.
37. Section 40(1) of the Parsi Marriage and Divorce Act, 1936.
38. Clause (b) of section 40(1) of the Parsi Marriage and Divorce Act,
1936.
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vary, modify or rescind such order by the change of circumstances39 or

on remarriage of wife or lacking of chastity.40 The Bombay High Court
has no jurisdiction after passing of Act to entertain any application under
this section from its original side41

VLXIII. Concept of Matrimonial Property-Introduced :

The concept of matrimonial property has been introduced by the

Act of 1936.42 But it has been confined up to the property presented at or
about the time of marriage. The joint ownership has been given to the
husband and the wife both.

VI.XIV. Changes Introduced in Attitude of the Marriage

by the Parsi Marriage and Divorce (Amendment)
Act, (5 of) 1988 :

Introduction :

Due to non-interference Policy of government in respect to the

personal laws of any minority community unless the initiative comes for
such community, the aforesaid Act of 1936 had not been amended for a
longer time till 1988. But the Board of Trustee of the Parsi Punchayat,
Bombay had sent some recommendation to Government in the form of
proposals to amend the Act, 1936. The Minority Commission, which
had considered these proposals, had also recommended the proposed

39. Section 40(2) of the Parsi Marriage and Divorce Act, 1936.
40. Section 40(3) of the Parsi Marriage and Divorce Act, 1936.
41. Bai Gulbai v. Behramsha, A.I.R. 1914 Bom. 26.
42. See section 42 of the Parsi Marriage and Divorce Act, 1936.
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amendments of 1988. The amendments are mainly aimed to enlarging

the scope of the some of the provisions of the Act so as to bring them on
the lines of the provisions of the Hindu Marriage Act, 1955. By this
Amendment following changes have been made.

VLXIV.I. Age of Bride and Bridegroom-Raised :

The minimum age of marriage has been fixed for bride and
bridegroom by the amendment 1988 for the first time. Now, bride
should not be less than 'eighteen and bridegroom not less than twenty-
one years. The consent of the guardian has no more required even if age
of bride is less than twenty-one years.

VI.XIV.II. Divorce on Irretrievable Break Down and

Mutual Consent Added :

In order to modernize the Act of 1936, the irretrievable break

down of marriage and dissolution by mutual consent has been added as
ground of divorce by this amendment. Section 32 A has been laid down
that either party could sue for divorce - and not merely the so-called
innocent party - and divorce could not be denied to the other party - the
so called guilt party, - the amendment sought to give up the guilt theory
and sought to introduce the irretrievable break down principle of
divorce. Non compliance with a decree for restitution of conjugal rights
and non-resumption of cohabitation after a decree of judicial separation
for a period of one year is treated as a conclusive evidence of breakdown
of marriage. As the words of statement of Objects and Reasons has

43. See clause (c) of the Parsi Marriage and Divorce Act, 1936, after
amended by Act, 1988.
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made clear that the Amendment is to be made on the line of Hindu

Marriage Act, 1955, thus the right to seek divorce on any one of these
grounds should be available to both the husband and the wife. As in
such case, it is clear that the marriage has proved a complete failure.
There is, therefore, no justification for making the right available only to
the party who has obtained the decree in each case. In such a case,
Parliament felt that no useful purpose will be served by maintaining a
union which has ceased to exist but in name, and further no useful
purpose will be served in determining at whose fault marriage
breakdown-may be one of the parties was at fault, may be both were at
fault, may be no one was at fault, may be it has broken down by
incompatibility, or may be it has broken down by the irony of
circumstances.