This article has been written by Ms. Tooba Shahid, a 2nd year student of S.S Khanna Girls’ Degree College, University of Allahabad.

 Abstract

 India is a home to different people belonging to different religious beliefs and cultures. For ensuring the equality of all the people, so that they could be treated equally in our diverse nation, there are various provisions, but when it comes to the situation of women in India, it seems that the situation is not very good. Although some steps have been taken to improve their situation, in some communities, laws are still discriminatory against women. One such community is the Parsi community, which has its own personal laws for marriage and divorce to regulate the marriage, separation, divorce, maintenance, and inheritance matters, but when it comes to the custody of the children, there is no specific law regarding that. However, under the Marriage and Divorce Act of 1936 of the Parsi Community, Section 49 of the act talks about the custody of the children, where the court has a discretion to decide the custody of the children, considering the best interest of the child. But here the problem is that there is no clear specific law. And because of the lack of clarity and uniformity regarding child custody, various challenges and problems arise for Parsi women who are involved in the custody disputes.

 Introduction

 The Parsi community in India is a small but influential minority. It follows the Zoroastrian religion and it has its own personal laws. The personal law of the Parsis is governed by the Parsi Marriage and Divorce Act. It was enacted by the British colonial government to codify the practices of the Parsis. When it comes to the child custody battles, the act is outdated and discriminatory for Parsi women. This article tries to highlight the challenges and issues faced by Parsi women in custody battles. 

Parsi Community

 A small but influential group of Zoroastrians who migrated from Persia to India is known as the Parsi community. For governing the matters like marriage, divorce, inheritance, and adoption, the community has its own personal laws. The main personal law of the Parsi community is the Parsi Marriage and Divorce Act of 1865, which was amended in 1940. This act applies to the Parsis, who are followers of Zoroastrianism. It talks about the registration of the marriage, the grounds for divorce, empowering the court to grant divorce, but does not clearly provide specific guidelines for the custody of the children and leaves it to the court’s discretion, according to the best interest of the child and the circumstances of the case. This is where the rights of the Parsi women come into significance. 

Situation of Parsi women under their personal laws: Effects on child custody battles 

Firstly, to get a picture of the situation of Parsi women under their personal laws, a major factor can be that Parsi women can only marry Parsi men, and if they marry a man outside of their religion, then they lose their identity as a Parsi and also their rights. This is the doctrine of exclusion. This signifies that if a Parsi woman wishes to marry a person outside their community or change their religion, then there is a possibility that a child born to a Parsi woman and a non-Parsi man is not considered as a Parsi, unless he or she is confirmed by a priest to have faith in Zoroastrianism. The court may favor the father or Parsi relatives who are responsible for preserving the Parsi faith and culture among their children. Because of this, it creates a difficulty to obtain the custody of the children by the woman, and also it does not always reflect the best interest of the child, because the child may have been influenced by relatives. 

The procedure of divorce under Parsi Marriage and Divorce Act of 1936  

In every personal law the option of divorce is given to each party. This is done to ensure the rights of the parties involved in case where they are not willing to continue their matrimonial relationship. This option is also available in Parsi manage and Divorce Act of 1936. There are four main provisions in the act regarding the divorce. Section 31, 32, 32A and section 32B.

Section 31 is regarding suits for dissolution, in case where a husband or wife is absent and has been not heard being alive for a period of seven years from whom who would have naturally heard of him the marriage can be dissolved at the instance of the husband or wife.

Section 32 provides for ground for divorce. There are various grounds for divorce and this is available to both husband and wife which includes non-consummation of marriage, unsoundness of mind for which the suit should be filed within three years of the marriage, incurable unsoundness of mind for a period of two years or more to such an extent that the plaintiff could not live with the defendant, At the time of marriage the defendant was pregnant by some other person than plaintiff, Adultery, fornication, bigamy, rape or an unnatural offence, cruelty, defendant imprisoned for more than 7 years for an offence defined in the Indian Penal Code, and if the defendant ceased to be a Parsi.

Section 32A Provides for filing the suit for divorce where there is no resumption of cohabitation or restitution of conjugal rights within one year in pursuance of a decree to be ground for divorce.

Section 32 B provides for divorce by mutual consent where the parties can file suit on the ground that they have been living separately for one year and have mutually agreed to file suit for divorce.

After the decree of divorce has been passed the Parsi Chief Matrimonial Court or the Parsi District matrimonial court is required to send a certified copy of the degree of divorce to the registrar of Parsi marriages within 30 days of such decree.

In case of Swapna Ghosh v. Sadananda Ghosh, the Calcutta High Court held that a wife can ask to end the marriage completely when the husband cheated on the wife coupled with cruelty. 

This highlights out the discrimination and inequality faced by women under the divorce procedures as compared to women of other communities who have favourable laws for divorce.

Secondly, the Parsi woman cannot claim any right of residence in their matrimonial home after divorce or widowhood. This may be problematic for the women, as they may have to find a new place to live, which may be costly, inconvenient, or insecure, and also there will be difficulty to provide a secure environment for the children, and therefore reducing the chances of getting the custody of the child. The court may consider the living conditions while deciding the custody, and will prefer the father over the mother. Therefore, the Parsi women who have no right of residence in their matrimonial home may be at a disadvantage in custody battles. 

Also, according to section 39 of the act the court can order to settle half property of the wife for the benefit of the children where the court had given the decree of divorce on the ground of adultery of the wife.

Thirdly, according to section 39 the court can order to provide alimony to other spouse for support during the proceedings of divorce. However, once the divorce is finalised the alimony may be stopped and if the wife has not any independent source of income, she would not be able to take care of the children and therefore it becomes problematic to get the custody of the children for a Parsi woman.

Finally, the right to inherit the property is not given to a non-Parsi woman who is married to or is the widow of a Parsi man, but their children can inherit. Because of this, she may have to depend on the generosity of her children, and also, she will be interfered in her personal and parental matters by her husband’s relatives. 

Conclusion 

It appears that the Parsi Marriage and Divorce Act does not take into account the rights and interests of Parsi women in custody disputes. Reform and changes are needed to make it more comprehensive and fairer. The law should lay down the specific criteria and guidelines for determining the child custody, and ensure that Parsi women and their children are given justice and dignity in marriage and family matters.

References

This article was originally written by Srajan Kapil published on Legal Services website. The link for the same is herein.

Women Rights In Parsi Community (legalserviceindia.com)

This article was published on India Foundation website. The link for the same is herein.

Personal Laws and Gender Justice – India Foundation

This article was published on IndiaFilings website. The link for the same is herein.

Adoption Laws In India – Under Different Religions – IndiaFilings

This article was published on IndianKanoon website. The link for the same is herein.

Swapna Ghosh vs Sadananda Ghosh And Anr. on 22 July, 1988 (indiankanoon.org)