Special Marriage Act

and The Parsi Law of

Marriage
Muazzam Ali Khan
Roll No 36
Family Law Assignment

Submitted to – Kahkashan Mam

 Special Marriage Act and The Parsi Law of Marriage

Index
1. Acknowledgement

2. The Special Marriage Act, 1954

2.1. Changes with the Emergence of Special Marriage Act in India
2.2. Legitimacy of children
2.3.Scope of the Act
2.4.Registration under the Special Marriage Act
2.5.Application of the Act
2.6.Matrimonial Relief under The Special Marriage Act, 1954
2.7. Void and Voidable Marriage
2.8. Force or Fraud
2.9.Divorce
2.10. Desertion
2.11. Conclusion
3. Parsi Marriage Act, 1865
3.1.Introduction
3.2. Requirements of a Parsi Marriage
3.3.Divorce
3.4.Irretrievable breakdown of marriage as a ground of Divorce
3.5.Divorce by Mutual Consent
3.6.Judicial Separation
4. Indian Divorce Act
5. Bibliography

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 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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 Special Marriage Act and The Parsi Law of Marriage

The Special Marriage Act, 1954

In 1954 the Special Marriage Act was enacted by the Parliament to provide a special form of
marriage in certain cases. This law was made applicable to all citizens of India domiciled in the
country.
The marriages done under that Act were to be governed by the Indian succession Act of 1925
and not by the Hindu Law of Succession with regard to the questions of inheritance and
succession.
But this Act could not be socially acceptable as it did not give proper attention to traditional rites
and ceremonies which were considered very vital for a Hindu Marriage. To meet this
requirement, the Hindu Marriage Act, 1955 was enacted which came into force on 18th May
1955.

Changes with the Emergence of Special Marriage Act in India

The position where the Parliament differed while enacting this act was the requirements that
previous codified laws had, for example Hindu Marriage Act provided that both the parties must
be hindus1, similarly the Muslim law of marriage requires both the parties to be Muslims.

If we look at the positive side of these marriages, we can find that they have added to our
national integrity. Unlike earlier times, nowadays people are attracted more to the opposite sex,
belonging to other castes and seldom end up considering the communal side of it. People from
higher castes tend to fall in love with people from lower castes and get married to them. What is
important is the amount of love and affection between them regardless of the status and
community they belong to. What we need to know is that Every Indian should change their
mindset about the caste system in our country and appreciate marriages between different
communities and religion. India is progressing with the increasing influence of education and
thus they must know about the advantages of Inter-caste marriages too (yes there are
advantages).

1
Section 5

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 Special Marriage Act and The Parsi Law of Marriage

These marriages encourage equality amongst the citizens and as a result of it people try to
interact more with each other and understand and respect each other and their differences. It sets
an example for other people that how love and respect can create a free and happy generation,
which is above the caste system and the evils of it.

Legitimacy of children

A marriage is said to be void, where the conditions mentioned in point no.4 are not met with, and
the children from such marriages who would have been legitimate if the marriage had been valid,
shall be legitimate, whether such child is born before or after the commencement of the Marriage
Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in
respect of that marriage under this Act and whether or not the marriage is held to be void
otherwise than on a petition under this Act as mentioned in Sec.26 of the act.

The Special Marriage Act states that a marriage between two persons can be legalized, only
if the following conditions are satisfied at the time of marriage.

 Neither of the two has a spouse living, at the time of the marriage.
 Neither of the two is incapable of giving a valid consent to the marriage due to
unsoundness of mind.
 Neither of the party has been suffering from mental ailments to such an extent, that they
are unfit for marriage and the procreation of children.
 Neither party has been subjected to recurrent attacks of epilepsy or insanity.
 At the time of marriage, the groom should be of twenty-one years of age and the bride
should be of eighteen years of age.
 Both the parties are not within the degrees of prohibited relationship; provided where a
custom governing at least one of the parties permits of a marriage between them, such
marriage may be solemnized, notwithstanding that they are within the degrees of
prohibited relationship.
 If the marriage is solemnized in the State of Jammu and Kashmir, both parties should be
the citizens of India, domiciled in the territories to which this Act extends.

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 When a marriage is intended to be performed in accordance with the Act, the parties of
the marriage shall give notice in writing, in the Form specified in the Second Schedule to
the Marriage Officer of the district, where the marriage is going to be solemnized.
 The marriage shall be solemnized after the expiration of thirty days of the notice period
that has been published under sub-section of the Act.
 At least one of the parties going to perform the marriage should have resided for a period
of not less than thirty days, immediately preceding the date on which the notice for
marriage is issued to the registrar.
 The marriage officer is bound to display the notice of the intended marriage, by affixing
a copy to some conspicuous place in his office.
 If the marriage officer refuses to solemnize the intended marriage, then within a period of
thirty days of the intended marriage, either party can prefer an appeal to the District
Court, within the local limits of whose jurisdiction the marriage officer has his office.
The decision of the District Court, regarding the solemnization of the intended marriage,
shall be final.

Scope of the Act

The Special Marriage Act deals with inter caste and inter-religion marriages.
Inter-caste marriage is a marriage between people belonging to two different castes. Gone are
the days when people used to marry blindly wherever their parents decided them to. Now the
youth has its own saying and choice and they prefer getting married to someone who has a
better compatibility with them rather than marrying someone who belongs to their caste or
their religion. It is them who have to live with their partner for the entire life and thus caste or
religion is not a matter of utmost consideration at all now. Love is a beautiful emotion and it
should not be weighed with something like caste or religion. All religions are equal and
marriage amongst it should not be a big deal. Caste or religion is conferred on us by birth and
not by choice, then why are people of lower castes seen with shame and disdain? India is a
diverse country and things like this that happens here, is a thing of pity. Thus, the Special
Marriage Act is a special legislation that was enacted to provide for a special form of

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 Special Marriage Act and The Parsi Law of Marriage

marriage, by registration where the parties to the marriage are not required to renounce
his/her religion.
Any person married under the Special Marriage Act, must know about this important
provision of the Act. The parties cannot petition for divorce to the District court unless and
until one year has expired from the date of their marriage as registered in the marriage
books. But, in cases where the court is of the opinion that the petitioner has suffered
exceptional hardships or the respondent has shown exceptional depravity on their part, a
petition for divorce would be maintained, but if any misrepresentation is found on the part of
the petitioner to apply for divorce before the expiry of 1 yr, the court may if any order has
been passed, state the order to take effect only after the expiry of 1 yr, as mentioned in sec.
29 of the Act.

Registration under the Special Marriage Act –

For solemnization of marriage (Court marriage), nearness of the two gatherings is required after
accommodation of reports of issuance of notice of expected marriage. A duplicate of the notice is
stuck on the workplace see board by the Marriage Officer. Any individual may within 30 days of
issue of notice, m-card-declaration complaint to the expected relational unions. In such a case,
the Marriage Officer should not solemnize the marriage (between 9.30 to 1 pm) until the point
when he has chosen the complaint, inside 30 days of its receipt.

In the event that the Marriage Officer declines to solemnize the marriage, any of the gatherings
may m-card-authentication an interest inside 30 days to the District Court. In the event that no
protest is gotten, the Marriage Officer solemnizes the marriage following 30 days of the notice.
The two gatherings alongside 3 witnesses are required to be available on the date of
solemnisation of marriage. It is prudent to submit names of observers no less than one day ahead
of time, one of them be a legal counselor.
The marriage which has already been solemnized can be got registered at the office of Sub-
Divisional Magistrate in whose jurisdiction any of the husband or wife resides on any working
day.

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The following documents are required for registration -

1. Application form duly signed by both husband and wife.
2. Documentary evidence of date of birth of parties (Matriculation Certificate / Passport / Birth
Certificate).
3. Address proof of both the husband and wife. Adhaar card was being required for registration
too.
4. Affidavit by both the parties stating place and date of marriage, date of birth, marital status at
the time of marriage and nationality and that the parties are not related to each other within the
prohibited degree of relationship as per Hindu Marriage Act or Special Marriage Act as the case
may be.
5. Two passport size photographs of both the parties and one marriage photograph.
6. Marriage invitation card, if available.
7. If marriage was solemnized in a religious place, a certificate from the priest is required who
solemnized the marriage
8. In case one of the parties belong to other than Hindu, Budhist, Jain and Sikh religions, a
conversion certificate from the priest who solemnized the marriage(in case of Hindu Marriage
Act).
9. Two witness with photographs and copy of their PAN Card.
All documents excluding receipt should be attested by a Gazetted Officer
For registration of marriage in case of Hindu Marriage Act, verification of all the documents is
carried out on the date of application and a day is fixed and communicated to the parties for
registration. On the said day, both parties, along with a Gazetted Officer who attended their
marriage, need to be present before the SDM. The Certificate is issued on the same day.
However, in case of registration of marriage under the Special Marriage Act, presence of both
the parties is required after submission of documents of issuance of notice of intended marriage.
A copy of the notice is pasted on the office notice board by the SDM. Any person may within 30
days of issue of notice , file objection to the intended marriages. In such a case, the SDM shall
not solemnize the marriage until he has decided the objection, within 30 days of its receipt.
If the SDM refuses to solemnize the marriage, any of the parties may file an appeal within 30
days to the District Court. In case no objection is received, the SDM solemnizes the marriage
after 30 days of the notice. Both parties along with 2 witnesses are required to be present on the

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 Special Marriage Act and The Parsi Law of Marriage

date of registration of marriage who had attested the marriage. It is advisable to submit names of
witnesses at least one day in advance.

Application of the Act

This information is the most important one for every Indian to know as it is through this that they
can avail them. This Act covers marriages among Hindus, Muslims, Christians, Sikhs, Jains and
Buddhists. This act applies to every state of India, except the state of Jammu & Kashmir. This
Act extends not only to the Indian citizens belonging to different castes and religions but also to
the Indian nationals living abroad.

The conditions required to be followed for this special form of marriage is not very different
from the requirements of other normal marriages, which happen within the caste. These are the
conditions to be eligible for a marriage under this Act: –
 The bridegroom must be at least 21 and the bride must be at least 18 years of age at
the time of marriage. This is the minimum age limit for a boy/girl to marry,
respectively.
 Both the parties must be monogamous at the time of their marriage; i.e. they must be
unmarried and should not have any living spouse at that time.
 The parties should be mentally fit in order to be able to decide for themselves e., they
must be sane at the time of marriage.
 They should not be related to themselves through blood relationships; i.e. they should
not come under prohibited relationships, which will otherwise act as a ground to
dissolve their marriage.

Matrimonial Relief under The Special Marriage Act, 1954

The concept of a marriage being a nullity from the very beginning or being annulled subsequent
to the marriage is a concept of English origin from the times of the ecclesiastical courts which
exercised jurisdiction over every aspect of marriage. The ecclesiastical doctrine laid down that
marriage was not regarded as consummated if parties have not become one flesh by sexual
intercourse, and consequently if one of the parties was impotent and therefore unable to

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consummate the marriage, he or she lacked the capacity to marry. Further, annulling a voidable
marriage was given retrospective effect. According to ecclesiastical law, a marriage was either
valid forever or never, in cases similar to the above, the marriage was declared void ab initio.
Such uncontrolled and unrestrained power in the hands of the religious leaders to declare
marriages void and bastardize the issue was a cause of great concern to the royal courts.
It was situations like this that lead to the question, whether laws which in spite of their
ecclesiastical authority character should force such arbitrary rules upon the common man. It was
as an answer to this question that laws were divided into (a) civil and (b) canonical. It was
further decided that a marriage in violation of the former would be void and latter would
voidable. It was also understood as a general principle that the validity could be questioned only
by the parties to a marriage and further that if one of the spouses died, such a question could
never arise.

Void Marriage

A marriage which arises on account of the fact that the parties have no capacity to marry, have in
fact married undergoing the requisite rites and ceremonies of marriage. Such a marriage is a
misnomer, a contradiction and is void ab initio. The essential feature of such a marriage is that
no legal consequences arise from it, i.e. no rights and obligation arise from it. Further since a
void marriage is no marriage at all, a decree of nullity is not necessary, as a decree merely makes
a judicial declaration of an existing fact.

Grounds of void marriage

A marriage performed in violation of absolute impediments is void. Under the SMA, a marriage
is void on the following grounds

 Either party has a spouse living at the time of marriage.

 Either party was at the time of marriage incapable of giving a valid consent in
consequence of unsoundness of mind or 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 procreation of children or has been subject to recurrent attacks of insanity.

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 The bride was below 18 years in age and bridegroom was below age of 21 years at the
time of marriage
 Parties were within the degree of prohibited relationship.
 The respondent was impotent t the time of institution of the suit.

These grounds do not apply to marriages registered under the Act. The registration however
maybe cancelled on the following grounds:

 Marriage was bigamous

 Either party was an idiot or lunatic at the time of marriage
 No valid ceremony of marriage was performed between the parties
 One of the parties or both were under the age of 21 years at the time registration
 Parties are within the degrees of prohibited relationship

Voidable Marriage

A voidable marriage is one which is valid until it is avoided. It can be avoided by a petition by
either party to a marriage if it violates conditions requisite to make a marriage valid. If, however
none of the parties petition for an annulment, it will remain valid. If one of the parties dies, the
validity cannot be questioned. The marriage will give rise to rights and obligations as long as it is
valid.
Grounds of voidable marriage:-
Under SMA, a marriage is voidable on the following grounds:

 Non consummation of marriage on account of wilful refusal of the respondent to do so

 Pre-marriage pregnancy of the respondent of which the petitioner was not the cause and
of which the petitioner was at the time of marriage ignorant, and marital inter course had
not take place with the consent of the petitioner after the knowledge of pregnancy and
further that the petition is presented within a year from the date of marriage
 Petitioners consent was obtained by fraud or force, provided that the petitioner did not
live with the respondent as husband or wife after the discovery of fraud or cessation of
force and provided further that the petition was presented within one year of the
discovery of fraud or cessation of force.

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Pre-Marriage Pregnancy

Pre-marriage pregnancy is a ground for voidable marriage under the SMA. This ground has its
origin in English and if often called a special kind of fraud. It has to be noted that this ground
talks about pre-marriage pregnancy lone and not pre-marriage unchastity. Even if the woman is
unchaste before the marriage and she had delivered an illegitimate child, the marriage could not
be avoided, since unchastity is not a ground of annulment of marriage . The conditions to be
roved here are,

1. Respondent was pregnant at the time of marriage

2. She was pregnant from a person other than the petitioner
3. Petitioner was not aware of respondent‟s pregnancy at the time of marriage
4. Petition must be presented within one year of the marriage under the SMA
5. No marital intercourse should take place with the consent of the petitioner after he had
known of wife‟s pregnancy

It is essential that all these conditions must be fulfilled before a petition can be filed. In case of
this particular ground the burden of proof is on the petitioner who must establish all the aforesaid
requirements. Also if the petition is not presented within the time limit specified under the Act, it
will become time-barred and the petitioner will be left with no remedy.

Fraud or Force

Broadly the ground uses the terms fraud and force. The SMA, 1954 uses the words coercion and
fraud. The requirements are:

1. Consent of the petitioner was obtained by fraud or coercion

2. Petition must be presented within one year of the discovery of fraud or cessation or
coercion
3. Petitioner must not have lived with the respondent, as husband or wife, as the case
maybe, after the discovery of fraud or coercion.

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Force

Force i99n this context does not mean merely physical force it also includes mental agony and
torture. English authorities lay down that whatever owing to some natural weakness of mind or
on account of some fear, whether entertained reasonably or unreasonably, but nonetheless
entertained really, or when a party is in such a mental state that he finds it almost impossible to
resist the pressure, it will amount to duress as in such a case there is no real consent. This is what
coercion means under the SMA2
Strong advice and persuasion does not come within this definition. This is primarily because in
most cases of arranged marriage some element of persuasion is present and it would be absurd to
include all such cases as forceful and inclusive of coercion. Further it is also to be noted that for
the purpose of personal laws in India, the terms force, coercion, duress etc mean the same.

Fraud

It basically means situation sand circumstances as to show want of real consent to marriage. The
main element here is deceit. Unlike the Law of Contracts, misrepresentation either innocent or
fraudulent will not terminate the marriage. The important aspect here is respect to the fact that
has been fraudulently represented. If it a crucial element in the marital relation then it will affect
the marital relation. For example if there is a misrepresentation with respect to the ceremonies or
identity of the party. Under the Act the following are classified as fraudulent:

 Fraud as to the nature of the ceremony

Shiram v. Taylor3 is a case where the parties went through with a ceremony of marriage though
the husband had no intention to regard it as a real marriage.

 As to the identity of the person

C v. C 4 is a case where W married H in the erroneous belief that he was well known boxer
called Miller.

2
H v. H, (1954) P 258
3
(1942) New Zealand Law Review 35-49

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 Concealment of disease

Amarnath v. Layyabat5i is a case where concealment of venereal disease lead to nullification of

the marriage. It was also held that some cases like syphilis will not be sufficient ground.

 Concealment of religion or caste unchastity

Leelamma v. Dilip Kumar6 is an example where thewife married H under the impression that he
was a Christian belonging to an ancient family, when in fact he turned out to be an Ezhava.

 Concealment of unchastity or illegitimate birth.

Harbhajan v. Brij7 is a case where H married W under the assurance that she was still a virgin. It
was however revealed that she had earlier given birth to an illegitimate child. The court refused
to grant the petition saying that this will be valid only if it can be proved that the husband
attaches great importance to her chastity
Several other factors, like concealment of age, financial status etc. Have aso been considered as
fraud in several other instances. The above list though not a comprehensive one deal with the
most important items.

Divorce

The matrimonial laws relating to divorce and separation in India have been greatly influenced by
the English matrimonial law viz., the Matrimonial Causes Act, 1857. Under the Act, the husband
can claim separation on the ground of wife‟s adultery, but the wife had to prove adultery
accompanied with bigamy, incest, cruelty, two years desertion and the like. This was typical of
the Victorian era. However modifications arose via the Matrimonial Causes Act, 1923, which put
both spouses at par and subsequently in 1937 when three more grounds were introduced into the
Act. The Indian Matrimonial Laws have closely followed these developments and have built
codes that closely follow the British model.

4
AIR I959 Cal 779
5
AIR I959 Cal 779
6
AIR 1964 Punj. 359
7
Section 24(1)(ii)

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 Special Marriage Act and The Parsi Law of Marriage

The Special Marriage Act, 1954 as amended under the Marriage Laws (Amendment) Act, 1976
recognises the following eight fault grounds for divorce[xviii]:

 Adultery
 Two years desertion
 Respondent undergoing a sentence of imprisonment for seven years or more for n offence
under IPC, 1860
 Cruelty
 Venereal diseases in a communicable form
 Leprosy
 Incurable insanity or continuous or intermittent mental disorder, and
 Presumption of death

Further two specific grounds have been provided for the wife alone.8 They are:

 The husband, since the solemnization of marriage has been guilty of rape, sodomy or
bestiality, and
 Cohabitation has not been resumed for one year or more after an order of maintenance
has been passed under section 125 of the Criminal Procedure Code.
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

8
As under S. 27(1A) of the Act

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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.
In Harendra Nath Burman v. Suparva Burman,9 the Court observed that the mere breakdown of
marriage, however irretrievable, is not by itself and without more, any ground for dissolution of
the marriage as yet under our matrimonial law. However, in Ram Kali v. Gopal, 10 the Court
observed, “it would not be practical and realistic, indeed it would be unrealistic and inhuman, to
compel the parties to keep up the façade of marriage even though the essence of marriage
between them has completely disappeared and there are no prospects of their living together as
husband and wife”.

Desertion

Section 27(1) of the SMA, 1954 deals with „desertion as a ground for divorce‟. The section
requires a period of atleast two years desertion as a pre-condition to a decree for divorce.
DEFINITION
Desertion means “the wilful and unjustified abandonment of a person‟s duties or obligation
especially to….a spouse or family”[xxv], or in simpler words it is the rejection of, either party to
a marriage, all the obligations that arise from the wed-lock. The explanation to clause (1) of S. 27
of the SMA gives the following definition,
“Desertion of the petitioner by the other party to the marriage without any reasonable cause and
without the consent or against the wishes of such party, and includes wilful neglect of the
petitioner by the other party to the marriage, and its grammatical variations and cognate
expressions.”
Thus desertion is an unreasonable withdrawal from the company of the spouse and of the exiting
state of affairs. In simple English it can also be termed as “abandonment”.
Desertion can basically be of the following types:

 Actual desertion
 Constructive desertion

9
AIR 1989 Cal 120
10
AIR 1971 Del 6 (FB).

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 Wilful neglect
The concept of restitution of conjugal rights has its roots in the fact that at time of marriage, the
parties to the marriage have a right to enjoy each other‟s consortium or company. In other words,
it is a duty to cohabit.
Like many other remedies, the origin of this remedy goes back to feudal England, where
marriage was considered as a property deal and the wife was seen as part of the man‟s possession
like all other chattel. It was this very same idea that was introduced into the British colonies
including India. In India, a decree for the restitution of conjugal rights can still be executed by
attachment of the respondent‟s property[lxxi].
Section 22 of the SMA, 1954 covers the ground of restitution of conjugal rights. The provision in
the SMA has been worded similar to Section 9 of the Hindu Marriage Act and runs as follows:
“when either the husband or the wife has without reasonable excuse, withdrawn from the society
of the other, the aggrieved party may apply, by petition to the District Court, for the restitution of
conjugal rights and the court on being satisfied of the truth of the statements made in such
petition and that there is no legal ground why the application should not be granted, may decree
restitution of conjugal rights accordingly.”
The explanation to this section further provides that,
“where a question arises, whether there has been reasonable cause for withdrawal from the
society, the burden of proving reasonable excuse shall be on the person who has withdrawn from
the society.”[lxxii]
It can thus be summarised that the following are necessary for a decree for the restitution of
conjugal rights:
 That the respondent has withdrawn from the society of the petitioner
 That the withdrawal is without reasonable excuse or cause
 That the court is satisfied about the truth of the statement made in such petition, and
 That there is no legal ground why relief should not be granted

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Conclusion

Hence, the above discussed general and legal aspects of Special Marriage Act, holds high
importance not only for the people who have registered their marriage under the act but also to
all the citizens of the country in order to have a better understanding of the law and treat the
marriages between different castes and religions to be equally sacred and auspicious like the
marriages between one‟s own caste. With my article I assume to have made my point on Special
Marriage Act which every Indian should know, and once they know, the country will surely
become a better place to live with the crimes of honor killing and torture etc. to come to an end.

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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
their own religion, they adopted the prevailing customs of local population.11
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
came to he known as Parsis.12
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 ofthe law and usage that obtained in the Hindu community inter alia, as to marriage.13
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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 Special Marriage Act and 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
conviction under section 466 ofthe said code."14
 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
the date on which Act XV of 1865 came into operation.15
 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
accordingly.The 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
of his or her wife or husband could not be punished under Indian Penal Code, I860. 16 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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 Special Marriage Act and 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 published in
Gazette of India17
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 Parsis18
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
majority would be 21 year and provision ofIndian Majority Act, 1875 would not apply.19
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
marriage,20 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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 Special Marriage Act and 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 or she been alive.21 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.
Sorabji v. Buchoobai22 - 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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 Special Marriage Act and The Parsi Law of Marriage

Where the parties were living separately for sixteen years without any chance of reconciliation,
the Court held that marriage had broken down and dissolution of marriage was justified.23 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
breakdown of marriage”.24 In Gajendra v. Madhu Mati,25 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
commencement of the amending Act of 1938.26
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
of petition27

23
Krishna Banerjee v. Bhanu Bikash Bandyopadhyay AIR 2001 Cal 154 (DB).
24
Jordan Diengdeh v. S.S.Chopra 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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 Special Marriage Act and 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
she is punishable under criminal law28
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 discri.minaxt.es 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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 Special Marriage Act and The Parsi Law of Marriage

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

 Academia.edu
 Wikipedia.org
 Scribd.com
 Indiankanoon.com
 Scconline.com
 Manupatra.com

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