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“MARRIAGE UNDER PARSI LAW”

SUBMITTED TOWARDS THE FULFILMENT OF THE COURSE TITLED –

FAMILY LAW-1

SUBMITTED TO: SUBMITTED BY:

Mr. RAVI RANJAN NAME: RAJ KRISHNA

TEACHER ASSOCIATE COURSE: B.A., LL.B (Hons.)

OF LAW ROLL NO: 1359

SEMESTER: 3rd

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A., LL.B (Hons.) Project Report entitled
“Marriage under Parsi law” submitted at Chanakya National Law University is an authentic
record of my work carried out under the supervision of Mr. Ravi Ranjan. I have not submitted
this work elsewhere for any other degree or diploma. I am fully responsible for the contents of
my Project Report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: RAJ KRISHNA

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.

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ACKNOWLEDGEMENT

I would like to thank my faculty Mr. Ravi Ranjan whose guidance helped me a lot with
structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn‟t have completed it in the present
way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped me
out at every stage of my project.

THANK YOU,

NAME: Raj Krishna

COURSE: B.A., LL.B. (Hons.)

ROLL NO: 1359

SEMESTER – 3rd
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INDEX

1. INTRODUCTION …………………………………………………………………pg. 5

* AIMS AND OBJECTIVES

* HYPOTHESIS

* RESEARCH METHODOLOGY

* SOURCES OF DATA

* LIMITATON

* CHAPTERIZATION

1. HISTORY AND ORIGIN OF PARSIS…………………………………………..pg.7

2 MARRIAGE UNDER PARSI LAW …………………………………………...…pg.11

3. COMPARATIVE STUDY OF VALID MARRIAGE UNDER PERSONAL

LAWS………………………………………………………………………………………pg. 13

4 PROBLEM IN PARSI LAW……………………………………………………….pg.17

5. CONCLUSION AND SUGGESTIONS………………………………………pg 19

BIBLIOGRAPHY………………………………………………………………………pg21
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INTRODUCTION

Marriage is a universal human institution which has formed the foundation of the family. It
usually means a voluntary union for life of one man with one woman to the exclusion of others.
While the traditions surrounding marriage ceremonies, the rights and obligations of marriage, the
way of choosing one‟s marriage partner, and even who all are permitted to marry may differ
from culture to culture. In the case of Shaw v. Gould, Lord Westbury said Marriage is the very
foundation of civil society, and no part of law and institutions of a country can be of more vital
importance to its subjects than those which regulate the manner and the conditions of forming,
and if necessary of dissolving, the marriage contract.‟ Marriage is a basic social and legal
institution. This paper will analyze the laws relating to the marriage and divorce in Parsi law and
how far they are effective in the modern day context. The lacunas in the law will be looked into
and suggestions shall be made as to what needs to be incorporated in our law so as to make it
equal for everyone. It will be limited in scope only to Parsi law marriage and divorce.

AIMS AND OBJECTIVES:

The researcher has analyzed the laws related to the marriage and divorce under Parsi law and
how far they are effective in modern day context.

Further the researcher has looked into the lacunas of the law and has made certain suggestions
which need to be incorporated.

HYPOTHESIS:

The researcher has presumed that marriage under Zoroastrianism is a spiritual discipline and not
a civil contract.

RESEARCH METHODOLOGY:

The researcher has relied on Doctrinal mode of research.

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SOURCES OF DATA:

The researcher has relied on the following sources:

1. Primary Sources: Acts and Statutes

2. Secondary Sources: Websites and Books

LIMITATIONS:

The researcher had monetary, territorial and time limitations.

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1. HISTORY AND ORIGIN OF PARSIS:

The Parsis originate from Iran .They originated in the Persian province of “Pers”. In AD 636,
when the Arabs invaded Persia and Caliph Omar defeated the Parsi King Yezdezind, they sailed
off in boats in search of a new land to escape persecution, carrying with them their sacred fire.
They landed twenty five miles south of Daman. The head of the group implored the local king to
give them refuge, with a promise that they would enrich his land.1

The king laid down five conditions:

a. The Parsis should adopt the local language.

b. They should translate their holy texts into the local language.

c. Their women must change their dress and wear the local sarees.

d. Their marriage ceremony should include the local rite of tying of the sacred knot.

e. They should surrender their arms.

They consented to all the five terms and in return the king granted them permission to build their
fire temples and allotted them an undeveloped country near Diu. They renamed the place as
Navsari which literally meant „New Sari‟ as it reminded them of a place they had left behind in
Persia. They settled down to agriculture and lived amicably with the Hindu community. Due to
the rigid caste system by the Hindus, assimilation was not possible and hence they were able to
maintain their separate and distinct identity. Apart from that within this integrated community
there are two sects- Shensoys and Kudmis.2

After the island of Bombay was gifted to the king of England by the Portuguese, the Parsis
started trickling in and were able to obtain various commercial contracts. They were the first to
1
Ipsita Mishra, Marriage and Divorce under Parsi Law, Lex Warrior (Oct. 13, 2016, 11; 20 p.m.), http://lex-
warrier.in/2013/11/marriage-divorce-parsi-law/
2
Id.
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adapt to English education, new trading patterns, and later to commerce and industry. They
evolved as an important economic and political force during the colonial regime and were able to
negotiate for themselves a separate set of personal laws.3

The term Parsi is not the same of the religious community. It of course carries some territorial or
racial significance. In order to be a Parsi, he or she must be a Zoroastrian. The Parsis are listed
under the head „other communities‟.4

Parsi Law Association of 1855 in its mission succeeded in getting Parsi Marriage and Divorce
Act (Act No XV) 1865and after various amendments, the Parsi Marriage and Divorce
(Amendment) Act, 1988 was formed.

3
Flavia Agnes, Family Law Volume 1: Family Laws and Constitutional Claims, ( 1st ed. 2011)
4
Janak Raj Jai, Universal Handbook on Divorce laws and Procedure, (3rd ed. 2010).
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2. MARRIAGE AND DIVORCE UNDER PARSI LAW:

Zoroastrianism states that marriage is a spiritual discipline, and not a mere civil contract. The
Parsi laws acknowledge the conversion of a non-Parsi into Zoroastrianism. For the union to be
legal, the marriage must be solemnized by the priest in an „Ashirvad‟ (blessing) ceremony.
Besides, at least two Parsi witnesses must be present during the ceremony to vouch for its
legitimacy.5 The officiating priest must certify the wedlock on the certificate given under
Schedule II of the Parsi Marriage and Divorce Act. This certificate must also be duly signed by
the bride, bridegroom and the two witnesses. The said priest has to thereupon send the certificate
to the Registrar of the place where the marriage has been solemnized, who makes a formal
record of the union.6

As regards Parsis, the question is set at rest by the Parsi Marriage Act X. of 65, s. 4 of which
provides that no Parsi shall contract a marriage while he or she has a wife or a husband living,
unless such husband or wife shall have been divorced.

Section 5(2) of the Act states that:

a. The accused had already been married to some person.

b. That the person to whom he was married was still living.

c. That the accused married another person.

d. That the second marriage was void by reason of its taking place during the lifetime of the first
spouse.7

In addition to the above four, it is to be also proved that the accused when marrying the second
person concealed from such person the fact of the former marriage.

The Parsi Marriage and Divorce Act, 1936 lays down that a Parsi below the age of 21 years can
marry only with the consent of the guardian of the person. But by amending Act of 1988, it has

5
Parsi Marriage and Divorce (Amendment) Act, 1988, Section 3.
6
Parsi Marriage and Divorce (Amendment) Act, 1988, Section 7.
7
Parsi Marriage and Divorce (Amendment) Act, 1988, Section 5.
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been laid down that a girl who has not completed the age of 18 years and a boy who has not
completed the age of 21 years cannot marry. It is also laid down that marriage below these ages
is void. The provision for guardianship has been abolished.

If a Parsi performs a marriage with a non-Parsi such a marriage is invalid under the act. Among
the Parsis there are no sects or denominations and hence no inter caste or inter sect marriages.
Parsi Marriage and Divorce Act, 1936 lays down prohibition to marriage on the basis of
consanguinity and affinity in Schedule I to the Act.8

Under this act, a marriage is void:

i. If parties are within prohibited relationship of consanguinity or affinity,

ii. If necessary formalities of marriage have not been performed

iii. If any party to marriage is below requisite age of marriage

iv. Either party to the marriage was impotent.9

The provision under this act is also similar with this modification that period of limitation from
that date of marriage for filing the suit for divorce on this ground is two years and not one year as
under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.

The Act lays down grounds for divorce or nullity as insanity, non-consummation owing to
physical causes, absence or desertion for seven years, adultery and cruelty. While almost all
other grounds of divorce remained the same, the period of desertion was brought down from 7
years to 3 years and later to 1 year. A Parsi husband or wife may file a suit to dissolve the
marriage tie under section 31 of this act. The marriage of such husband or wife shall, with
8
Parsi Marriage and Divorce (Amendment) Act, 1988, Schedule 1.
9
Parsi Marriage and Divorce (Amendment) Act, 1988, Section 30.
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compliance of the requirements contained under the provisions of the said section be dissolved.
Parties may sue for divorce on any one or more of the grounds provided under section 32 of the
act. When a court passes a decree for divorce, the court shall send a copy of the decree for
registration to the registrar of marriages within its jurisdiction appointed under section 7 of the
act. 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.

Continuous absence for seven years is a ground for divorce. The presumption under this section
is with reference to the filing of the proceeding for dissolution of marriage and not with reference
to any particular date.

Three conditions are to be imposed. Firstly, the plaintiff should be ignorant of the fact. If he
knows the fact of pregnancy and still marries, it is case of „voluntary consent‟ and doctrine of
“volunti non fit injuria”. Secondly, the suit should be instituted within two years of the date of
marriage. Thirdly after the knowledge of pregnancy there should be no cohabitation. If there still
cohabitation, divorce cannot be granted on the doctrine of condonation.

Under this act, mutual consent and irretrievable breakdown of marriage are not grounds of
divorce through a decree for judicial separation may be followed by a decree of divorce if the
parties have not had marital intercourse for the statutory period since such decree or order. It is to
be noted that section 32B providing for mutual consent for divorce has been inserted in this Act
under this particular Act.

Question whether constructive desertion has ended is to be decided by interference drawn from
the facts. Thus, such decision on the facts is to be disposed of finally by the delegates.
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“Causing of grievous hurt” under the Parsi Marriage and Divorce Act, 1936 is ground for
divorce. Proviso to clause of this act, lays down that in a petition for divorce on the ground of
cruelty, the court has discretion to pass a decree of divorce or judicial separation. Rape and
unnatural offences are ground of divorce for both husband and wife.10

If at the time of marriage one of the parties to the marriage was of unsound mind and continued
to be so up to the date of presentation of the plaint, the plaintiff can obtain a decree of dissolution
of marriage provided he or she had filed the suit within three years from the date of marriage.
11
But if a Parsi knowingly marries an insane person, marriage cannot be avoided. Post marriage
insanity of a spouse is not a ground for divorce.

Parsi divorce rates are higher than those for other Indian communities because, when compared
to Hindu law, Parsi law has always made divorce easier. Remarriage after the death of a spouse
is permitted for both sexes. Leprosy is not a ground for divorce in Parsi law unlike that in
Muslim law and Hindu Law.

10
Parsi Marriage and Divorce (Amendment) Act, 1988, Section 32 (a).
11
Parsi Marriage and Divorce (Amendment) Act, 1988, Section 32 (b).
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3. COMPARATIVE STUDY OF ESSENTIAL OF VALID MARRIAGE UNDER

DIFFERENT PERSONAL LAWS

3.1 HINDU MARRIAGE

The Hindu Marriage Act 1955 provides for essential conditions for the validity of a Hindu
Marriage, registration of Hindu Marriages, Restitution of Conjugal rights, Judicial separation,
Nullity of Marriage, Divorce etc. (Given in Sections 5- 13 under the topic Marriage)

Essentials of Valid Hindu Marriage

Under the Hindu Marriage Act ,1955 certain conditions are necessary for a valid Hindu
Marriage. Those conditions have been laid own in Sec 5 and 7of the Act. Section reads as
follows.

By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be valid only if both the
parties to the marriage are Hindus. If one of the parties to the marriage is a Christian or Muslim,
the marriage will not be a valid Hindu marriage

“A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely:-

1. Neither party has a spouse living at the time of the marriage;

2. At the time of marriage, neither party:

a) Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

b) Though capable of giving a valid consent, has been suffering from mental disorder of such a
kind or to such an extent as to be unfit for marriage and the procreation of children; or

c) Has been subject to recurrent attacks of insanity or epilepsy

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3. The bridegroom has completed the age of 21 years and the bride the age of 18 years at the
time of marriage;

4. The parties are not within the degrees of prohibited relationship, unless the custom or usage
governing each of them permits of a marriage between the two

5. The parties are not sapindas (one is a lineal ascendant of the other) of each other, unless the
custom or usage governing each of them permits of a marriage between the two.12

3.2 MUSLIM LAW

For a valid Islamic marriage, the following conditions must be satisfied:

1. The parties must have the capacity to marry

2. There must be a clear proposal and acceptance.

3. Free consent

4. No Legal disability

1. Capacity to marry

Every Muslim of sound mind, who has attained puberty, may enter into a contract of marriage.
Puberty means the age at which a person becomes adult (capable of performing sexual
intercourse and procreation of children). A person is presumed to have attained the age of
puberty on the completion of 15 years. So the boy and girl who has attained puberty can validly
contract a marriage .A marriage under Muslim law is perfectly valid if the parties have attained
puberty and satisfied all other conditions specified by the law.

According to the child marriage restraint act 1929, a marriage of male below 21years of age and
female below 18 years of age is child marriage. The act prohibits such marriage. The Act
prescribes that for a valid marriage the minimum age for male is 21 and female is 18. The parties

12
The Hindu Marriage Act, 1955, Section 5.
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who are violating the provisions of Child Marriage Restraint Act are liable to be punished. Thus
if two Muslims marry before attaining the age prescribed under the child marriage restraint Act
they are liable to be punished. However the marriage between two Muslims who have attained
puberty is valid though they have violated the provisions of Child Marriage Restraint Act. 13

2. Proposal and Acceptance

Under the Muslim law for the validity of a marriage there must be a proposal and acceptance at
the same meeting. The proposal and acceptance must both be expressed at one meeting; a
proposal made at one meeting and acceptance made at another meeting does not make a valid
Muslim marriage. Neither writing nor any religious ceremony is essential.

Under the Sunni law, the proposal and acceptance must be made in the presence of two male
Muslims who are of sound mind and have attained puberty or one male and two female witnesses
who are sane, adult and Muslim. Absence of witnesses does not render marriage void but make it
void able.

Under the Shia law witnesses are not necessary at the time of marriage.

The proposal and acceptance need not be made in writing. Where the offer and acceptance are
reduced into writing, the document is called „Nikah nama or Kabin-nama.

The proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the
proposal by or on behalf of female witnesses, who must be sane and adult Muslim.14

3. Free consent

Free consent of the parties is absolutely necessary for a valid marriage .If there is no free consent
a Muslim marriage is void. Under the Muslim Law, a marriage of a Mohammedan who is of
sound mind and has attained puberty is void; if it is brought about without his consent The
marriage of a girl who has attained puberty and is of sound mind would be void if her consent is

13
Essentials of Valid Muslim Marriage, Web India (Oct.17, 2016, 11:20 p.m.),
http://www.webindia123.com/law/family_law/muslim_law/essentials_of_valid_marriage.htm
14
Id.
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not obtained. When the consent to the marriage has been obtained by force or fraud, the marriage
will be invalid, unless it is ratified. When a marriage was consummated against the will of the
women, the marriage is void. The person who has been defrauded can repudiate the marriage.

Lunatics and minors who have not attained puberty may be validly contracted by their respective
guardians. A minor is incompetent to give valid consent. The right to contract a minor in
marriage belongs successively to the following persons:

i) Father

ii) Paternal Grand Father

iii) Brother and other male relations on the fathers side

IV) Mother

v) The maternal uncle or aunt and other maternal relations.

Under the Shia law only the father and the paternal grandfather are recognized as guardian for
contracting marriage of a minor. If a minor, whether male or female, be contracted in marriage
by a remoter guardian, while a nearer guardian is present and available and such nearer guardian
does not give consent to the marriage, the marriage is void. But if the parties ratify it after
attaining puberty, it will be valid. However if the nearer guardian be absent at such a distance as
precludes him from acting, the marriage contracted by the remoter is also lawful. 15

4. No Legal disability

Under Muslim Law, marriage under certain circumstances is prohibited or not permitted. The
prohibitions can be classified into two classes:

a. Absolute Prohibition

b. Relative prohibition16

15
Id.
16
Id.
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4. PROBLEMS OF PARSI LAW

Personal laws are as conceptually flawed as they deny women the right of self-determination,
autonomy and access to resources. Historically, reform and codification of Parsi law eroded
some of the customary variations and diversities within communities. However, many of the
things are politically motivated. As such these laws do not allow any choice to individuals who
may be non-believers or dissenters, or believers who do not wish to be governed by
discriminatory and unjust laws which violate their fundamental rights. Where community rights
infringe the rights of women and other groups within the community, they are to be rejected. The
focus must be shifted un-ambiguously to working towards the non-negotiable and inalienable
rights of citizens. The most different provisions are ruling the Parsi marriage: minority and
insanity is not a bar to the marriage. Indian Parsees argue that without separate personal law
systems the result would be a uniform civil code that would inevitably reflect mainly Hindu
interests.17

In Shah Bano case, judges said that “a common civil code will help the cause of national
integration by removing disparate loyalties in laws which have conflicting ideologies”. In the
recent Supreme Court judgment on Sarla Mudgal vs Union of India, the judges repeated this and
further held: “In the Indian Republic there was to be only one nation – Indian nation – and no
community could claim to remain a separate entity on the basis of religion.” They added: „The
Hindus and Sikhs have forsaken their sentiments in the cause of national unity and integration;
some other would not…”18

We also see the limited success of the historical process of reforms in Parsi laws and its failure to
abolish patriarchal privileges. Proposals for reform are either watered down or curtailed or are
simply not enabling for women. It is recommended that a new section be inserted in the HMA to
the effect that a married person governed by it cannot marry again even after changing religion
unless the first marriage is dissolved or declared null and void in accordance with law, and if

17
Mishra supra note 1.
18
Id.
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such a marriage is contracted, it will be of no legal effect, and attract application of Sections 494
and 495 of the IPC. The commission has recommended that similar provisions be inserted the
Parsi Marriage and Divorce Act 1936.

The Parsi Marriage and Divorce Act lays down that a person below the marriageable age can
marry with the consent of the guardian. However it is a glaring defect that under no personal law
is a child marriage void.19

The Parsi Marriage and Divorce Act (1936) came under the purview of seminal amendments
which have proved to be milestones in the personal law reforms. Marriages between consanguine
and affine relatives are deemed legal, and have become a common practice. In fact, parallel-and
cross-cousin marriages as well as inter-generational marriages are legally permitted. A Parsi who
marries outside the community is also not bared from practicing Zoroastrianism. . Besides, the
child of such wedlock cannot be refused from receiving the Parsi thread ceremony.20

19
Id.
20
Id.
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5. CONCLUSION AND SUGGESTION

The hypothesis of the researcher has been proved correct. Marriage under Parsi law is indeed a
spiritual discipline and not a mere civil contract. Apart from that there are certain loopholes in
the Parsi Marriage law which has been discussed earlier. There have certain amendments made
in the original law, but. it has met with limited success. Apart from that there are many more
lacunas in other personal laws as well. Therefore, its right time for the dissolution of all the
personal laws and a uniform civil code should be brought in order to govern the personal laws of
Indians.

Apart from that there are many benefits of Uniform Civil Code like it will ensure fraternity
(Brotherhood) among the citizens of India. It will be indeed true establishment of law. Further it
will reduce the gap between separate communities as well as the sub-sect within the same
community. Uniform Civil Code will be more advantageous to the vulnerable section of the
society, more precisely to women and children. It will give proper status to women and minimize
the tension when encompasses between equality and discrimination.

The issue of implementation of a Uniform Civil Code has been severely politicized, with two
upper sides that have now formed; the Congress along with Muslim conservatives versus the
Right wing and Left. The debate over UCC is one of the most controversial issues in 21st century
India with its manifold implications, mainly on the secularism of the country.

The Government of India has recently asked Law Commission to take a look at the Uniform
Civil Code and analyze whether of not it can be implemented. It is expected that this issue will
soon start a debate – a heated, political one at that – and it could have really far-reaching
consequences.

Bringing the UCC would help and reduce many technicalities and loopholes present in present
existing personal laws, it was an aspiration of our Constitution makers. The Government must
draft a common civil code with the view of all minorities and their best interests in mind; it must
consult the Law Commission, National Commission for Women, National Human Rights
Commission, Former Judges of Supreme Court, High Courts, Attorney Generals and Solicitors
General. A sudden enactment might disrupt communal harmony. Thus a set of steady reforms is
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the must. The government must implement the uniform civil code in the true spirit of Article 44
of the Constitution.
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BIBLIOGRAPHY

The researcher has consulted following sources to complete the proposal:

ACTS

1. The Parsi Marriage and Divorce Act, 1936.

2. The Hindu Marriage Act, 1955.

BOOKS:

1. Saharay H.K., Family Laws in India, Eastern Law House.

2. Agnes Flavia, Family laws and Constituional Claims, Oxford University Press

WEBSITES:

1. www.lexwarrior.in

2. www.advocatekhoj.com

3. www.indiankanoon.com

4. www.webindia.com