This article has been written by Ms. Sonali Das, a 3rd -year student of  Army Institute of Law Mohali.

Abstract 

The Institution of marriage , separation or Divorce and Inheritance rules are profoundly ingrained in Parsi culture, as are their religion and heritage. These traditions and procedures are formalized under the 1936 Parsi Marriage and Divorce Act, which applies to all part of the nation. While the Parsi community is predominantly concentrated in Mumbai and Pune in Maharashtra, it is also present in Surat , Ahmedabad in Gujarat. Furthermore, the Parsi population is globally disturbed and may be found in cities across India. 

Keywords: Parsi Marriage, Parsi Divorce, Parsi Inheritance, Parsi Personal Law. 

Introduction 

In 1855, a Parsi Law Association was formed to establish the groundwork for the development of Parsi Personal Law. The organization delivered proposed regulations on inheritance, succession, and marriage to the Legislative Council of India five years later. In 1865, the Parsi Marriage and Divorce Act and the Parsi Intestate Succession Act were passed as a result of this. Both of the 1865 statutes were revised and re-enacted in following years. The first was accomplished by the Parsi Marriage and Divorce Act of 1936, while the second was accomplished through Chapter III of Part V of the Indian Succession Act of 1925. However, some Parsi groups and significant persons expressed considerable criticism and discontent with the terms of the 1936 Act, prompting requests for revisions. Finally, the 1988 revision brought the Parsi Marriage and Divorce Act up to the level of the Hindu Marriage Act of 1955.

Origin of Parsis 

The Parsis have ancestors from ancient Persia. They were from the Persian region of “Pers”. The Arab invasion, however, shook their idyllic existence in AD 636. Caliph Omar overthrew Parsi King Yezdezind, and in order to avoid punishment, they were compelled to take sail on boats, carrying their sacred fire with them. They arrived twenty-five kilometres south of Daman after a lengthy trek. In need of a new home, the group’s leader humbly petitioned the local monarch for shelter, promising to provide wealth and expansion to his realm in exchange.

The king established five regulations, including the following: 

1. The Parsi community must accept the vernacular. 
2. They must translate their sacred writings into common.
3. Their female members must wear the region’s traditional sarees. 
4. Their traditional wedding ceremonies must include the usual process of tying the holy knot. 
5. The Parsis must surrender their weapons.

They agreed to all five criteria and, as a result, the monarch granted them permission to build their temples on undeveloped ground near Diu. They correctly dubbed the location Navsari, which meant “New Sari,” as it reminded them of a famous Persia town. The immigrants eventually settled down, working in agriculture and coexisting well with the Hindu populace. However, because of the Hindus’ rigid caste structure, total absorption was impossible, allowing them to retain their distinct character. Furthermore, two factions arose within this cohesive community: the Shensoys and the Kudmis.

When the Portuguese gave the island of Bombay to the King of England, the Parsis arrived promptly and secured rich trade contracts. They were among the first to embrace English education, creative trading practices, and, eventually, business and industry. They evolved as a strong economic and political force throughout the colonial era as a result of their efforts, and they successfully fought for their own special personal laws.

The term “Parsi” has more than religious implications; it also has geographical and ethnic undertones. To be considered a Parsi, one must follow the Zoroastrian faith. Despite being classified as an “other community,” the Parsis were able to pass the Parsi Marriage and Divorce Act in 1865, largely due to the work of the 1855 Parsi Law Association. The legislation was amended several times, resulting in the Parsi Marriage and Divorce (Amendment) statute of 1988.

Who is a Parsi ? 

Section 2 of Parsi Marriage and Divorce Act, 1936 defines a Parsi as Parsi Zoroastrian, professing Zoroastrian religion. 

The Parsi community in India is made up of Iranians from Persia who have moved temporarily or permanently and profess the Zoroastrian faith, according to the Bombay High Court’s verdict in Sir Dinshaw Manockji Petit v. Sir Jamsetji Jeejeebhoy (1908). Children of Parsi dads and non-Parsi mothers who have been officially admitted into the religion are also included. Their ancestors may be traced back to the first Persian exiles who fled to India around 1200 years ago after being persecuted by Muslims in their homeland for their religious beliefs. These Persians finally arrived in India after seeking refuge in areas such as Kohistan and the Isle of Ormus.

The Bombay High Court in the case, Jamshed Irani v. Banu Iarni (1967), Zoroastrians from both Iran and India were popularly referred to as Parsis as early as 1936. This phrase was often used in both nations. As a result, the term “Parsi” was used in the Act to refer to Zoroastrians from both Iran and India.

Customary Law in Parsis

During British administration, Parsi culture and legislation differed according on locale. The Mofussil Parsis followed traditional law, whilst those in the presidency districts followed English law. Most Parsis still follow these customs today:

• Their unusual wedding traditions include a post-sunset ceremony inspired by the holy scripture “Avesta.” Priests, accompanied by religious vows, officiate over the tying of the bride and groom’s right hands, known as “Hathevaro.” The surrounding attendants shout prayers from their various sacred scriptures as the joyful marriage is sealed.
• It is usual for parents to offer their boys for adoption as “Palak” in the Parsi community. This sort of adoption, however, does not give the adopted father complete social, religious, and legal power over the kid. Instead, the adopted son is not entitled to any inheritance or rights, but is obligated to carry out the adoptive father’s burial ceremonies.
• Since the British introduced them in 1865, Parsis have accepted a variety of practices about succession. When a person dies without an heir, their property is handed on to the Parsi Panchayat (also known as the Parsi Anjuman), an institution intended to assisting the Parsi community in times of financial need.

Marriage under Parsi Personal Law 

According to the Parsi Marriage and Divorce Act of 1936, a Parsi marriage is primarily considered a contractual agreement, however, the spiritual aspect remains prominent. To ensure the legal validity of a Parsi marriage, the “Ashirvad” ritual must be performed by a priest in the presence of two Parsi witnesses. However, if the individuals are related and share common ancestry, the marriage is deemed null and void. A marriage performed by a priest with fewer than two Parsi witnesses is not deemed legal under Parsi law. Furthermore, if either the husband or wife is under the age of 21 or 18, the marriage will be invalid. The officiating priest must certify the marriage immediately after it has been solemnized under this Act.

Divorce under Parsi Personal Law 

The 1988 modifications considerably improved the 1936 Parsi Marriage and Divorce Act, bringing it closer to the Special Marriage Act’s norms. Section 32 of the Parsi Marriage & Divorce Act lists 10 legal reasons for divorce that can be presented by either spouse. The legislature essentially provided Parsis expanded access to divorce on a variety of grounds through these reforms. Prior to the 1988 revision, the Parsi Marriage and Divorce Act of 1936 did not recognize the option of mutual consent divorce among Parsi Zoroastrians. However, because to the amendment’s addition of Section 32-B, couples whose marriage has suffered irreparable harm can now seek divorce with mutual consent, thus ending their bed and breakfast arrangement.

The Bombay High Court ruled in Minoo Rustomji Shroff v. Union of India (2005) that delegates are not required to align with the sitting judge in uncontested processes such as mutual consent divorces under Section 32-B of the Act.

Succession under Parsi Personal Law 

The Parsi Intestate Succession Act was passed in 1865. This was eventually supplanted by the Indian Succession statute of 1925, which not only included Parsi succession but also completely replaced the earlier statute. The British Indian Legislature explicitly adopted this statute for Parsis, indicating its significance. Interestingly, while the new succession law has undergone significant modifications and differs from ancient Parsi norms, it retains Hindu and Muslim elements. With the passage of the Indian Succession Act in 1925, the Parsi Intestate Succession Act was included immediately into Chapter III of the Act. Sections 50 to 56 of this comprehensive legislation not only established testamentary rights, but also particularly addressed the Parsi community’s succession rights. This meant that the Parsi community’s succession rights were legally maintained.

Maintenace under Parsi Personal Law 

The maintenance rules included in the Code of Criminal Procedure 1973, the Protection of Women from Domestic Violence Act of 2005, and the Maintenance and Welfare of Parents and Senior Citizens Act of 2007 are also applicable to the Parsi community. Furthermore, Sections 39 and 40 of the Parsi Marriage and Divorce Act of 1936 provide provisions for permanent alimony, maintenance, and support pendente lite.

Hirabai Bharucha v. Pirojshah Bharucha, referenced in AIR 1945 Bom 537, arose from a legal issue under Section 40 of the Parsi Marriage and Divorce Act of 1936. This clause gives the Court the authority to award permanent alimony to a wife either at the time of the divorce or after the fact. In this case, the wife was awarded a divorce judgment, and the sides later reached an agreement on specific parameters.

Conclusion 

The Parsi legal discourse has a long history in the middle of British control. It all started during the British occupation of India, when the government launched efforts to control Parsi law. While British civil rules were enforced on the Parsi community, they were adamant about retaining their own identity when it came to marriage and bigamy. They worked in two ways to de-Anglicize the rules that ruled them while preserving their own family and communal patterns. This was accomplished through many intra-group litigation led by Parsi legal specialists in areas like as marriage, inheritance, religious trusts, and libel, as well as the adoption of legislation that established Parsi personal law.

Reference 

Books 

• Flavia Agnes, Family Law Volume 1: Family Laws and Constitutional Claims, ( 1st ed. 2011)
• Janak Raj Jai, Universal Handbook on Divorce laws and Procedure, (3rd  ed. 2010).
• Saharay H.K.., Family Laws in India , Eastern Law House.
• Agnes Flavia, Family Laws and Constitutional Claims, Oxford University Press
• P. K. Irani, The personal law of the Parsis of India, in J.N.D. Anderson (ed.), Family Law in Asia and Africa, London, George Allen & Unwin Ltd, 1968, pp. 273–300
• F. A. Ráná, Parsi Law: Containing the Law Applicable to Parsis as Regards Succession and Inheritance, Marriage and Divorce, Printed at the Examiner Press, 1902

Websites/ Articles

• This article was originally written by Dr. Sharmilesh TrivediWilliam Hewat Mcleod. The link for the same is herein: : www.ijrpr.com  Accessed on 30th December 2023.

• Parsi Law“, The Oxford International Encyclopedia of Legal History, Edited by Stanley N. Katz, Oxford University Press, 2009

• See: M. Sharafi, Law and Modern Zoroastrians, The Wiley Blackwell Companion to Zoroastrianism, Wiley Blackwell, Chichester, 2015, p. 307

• This article was originally written by  Mukesh Kumar The link for the same is herein  https://www.tutorialspoint.com/parsi-personal-law-in-india-an-overview 
• This article was originally written by  Aanika Aery, currently pursuing B.B.A. LLB from Symbiosis Law School, Noida; and Kishita Gupta, an advocate who is a graduate of the Unitedworld School of Law, Karnavati University in Gandhinagar The link for the same is herein: https://blog.ipleaders.in/need-know-parsi-marriage-divorce-act-1936/

Cases 

• • Hirabai Bharucha v. Pirojshah Bharucha, AIR 1945 Bom 537
  • Jamshed A. Irani v. Banu J. Irani 68 Bom LR (1966) 
  • Minoo Rustomji Shroff And Ors. vs Union Of India (Uoi) And Ors. 2005 (4) BomCR 147, 2005 (2) MhLj 1124

• Sir Dinshaw Manockji Petit And vs Sir Jamsetji Jeejeebhoy And Ors. 2 Ind Cas 701

Reports 

• • The Parsi Marriage and Act , 1936 

• The Hindu Marriage Act, 1955

• Parsi Marriage and Divorce (Amendment) Act, 1988