Analytical Study of Divorce and Marriage under Parsi Personal Laws

The following paper analytically studies marriage and divorce under the Parsi personal laws and it lays down the key specifications and objectives required for a valid marriage and divorce to be fulfilled. The paper initially briefs about marriage and how marriage is proclaimed to be a universal social institution and also the rituals under Parsi laws. It further draws parallel of marriage to marriage under the Parsi laws and the regulations specified forward by the Parsi Marriage and Divorce (Amendment) Act, 1988 under Section 32B. It further deals with the concept of judicial separation and how it is promised under 34 of the Parsi Marriage and Divorce Act, 1936 and how a party or an individual can claim the matrimonial reliefs.

The paper then broadly categories itself in two form namely Marriage under Parsi laws and Divorce under Parsi laws and deals with each one of them thereby elucidating the key specifications required to fulfill these promises and regulate their conduct. Under the Section of marriage under Parsi Law the paper will firstly focus on the considerations of marriage as an Ashirvad and how this becomes a valid component for a marriage to be performed. Further the paper would with the assistance of various decided case laws in India draw comparison to the form Parsi marriage has taken now as compared to the earlier times. The paper will also discuss the ceremonies of marriage, registration of marriage, requisites to a valid marriage and thereby deal with each Section of the Parsi Marriage and Divorce Act, 1936 relatively.

Under the category of divorce under Parsi Personal Laws the paper would deal with the concept of divorce, the grounds for divorce allocated with the necessary and suitable provisions and the relief available for each ground specifically. The paper would also deal with the nature of Parsi Marriage and Divorce and decide its stance based on various case laws. The paper will majorly focus on the Parsi Divorce case and how the courts judgment changed the way Parsi Personal laws were looked at and guided through. Finally the paper will elucidate and interpret marriage and divorce under Parsi Personal Laws in totality by formulating analytical deductions and conclusions with reference to the necessary Sections and cases.


Brief on Marriage

Marriage is proclaimed to be a universal social institution and it is established with the motto to control and regulate the life and behavior of human beings.[1] Right to marry under the Indian constitution is guaranteed under Article 21 which states about the right to life as a fundamental right to every citizen of the country[2]. Marriages in India defer from religion to religion and from region to region, and each such religion has an individual set of personal laws governing the sacrosanctness of marriage.[3] The following research focuses on marriage under the personal laws of Parsis.

What is Parsi Law?

Parsi law for marriage and divorce is regulated and monitored by the Parsi Marriage and Divorce (Amendment) Act, 1988 under Section 32B[4]. This act covers various provisions regulating the practice of marriage and divorce of Parsis. Judicial separation is guaranteed under Section 34 of the Parsi Marriage and Divorce Act, 1936 and further the grounds for both matrimonial reliefs that is judicial and divorce are similarly aligned.[5]

Marriage under Parsi Law

Under Parsi personal law marriage is considered to be a contract performed through a religious ceremony known as Ashirvad and it is an essential component for a valid marriage.[6] The term Ashirvad means a prayer, blessing or a divine exhortation between the two parties in order to observe their obligations of marriage with true faith and respect. Under Parsi Personal law both sexes are given equal treatment and remedies and rights are available to both the parties. The essential and valid conditions required for a valid marriage are given under the Parsi Marriage and Divorce Act, 1872. [7]

Divorce under Parsi Law

Divorce under Parsi Personal law is regulated by the Parsi Marriage and Divorce Act, 1936 and divorce as a separate unit is dealt by Section 32 of the act on the following grounds.[8]

Adultery    Section 32 (d) & 34    Divorce or judicial separation
Cruelty  Section 32 (dd) & 34  Divorce or judicial separation respectively
Desertion  Section 32(g) & 34  Divorce or judicial separation
Conversion  Section 32(j) & 34  Divorce or judicial separation
Fraud  No Provision 
Bigamy  Section 4, 5 & 11  Divorce or judicial separation
Impotency  Section 30 & 32 (a)  Void & divorce
Mental illness  Section 32(b)  Annulment
Leprosy  No Provision 
Venereal Disease  Petition filed not later than 2 years of knowledge  Divorce
Non- Rehabilitation after Decree     Section 32A(1)(i) & 32A(1)(ii)  & 32A(2)    Divorce relief available to either of the parties
Pre-Marriage Pregnancy  Section 32 (c)  Divorce

Nature of Parsi Marriage

Impotency  Consummation is impossible because of natural causes, either party may seek relief.      Void
Non-Consummation of Marriage   Non-consummation within 1 year of marriage after solemnization owing to the wilful request of the respondent      Divorce
Mental Illness  Unsound mind from the time of marriage and unto the date of suit      Divorce
Pre-marriage Pregnancy      Wife, pregnant at the time of marriage. Plaintiff ignorant at the time of marriage, case to be filed within two years of the date of marriage.            Divorce


Introduction to Parsis

The Parsis mostly in and around India came and settled from the land of Persia or the Persian Gulf and this was mainly due to their persecution from their native land.[9] The name Parsi is derived from ‘Pars’ which basically means from Persian Province.[10] The word Parsi has dual significance meaning it is both a racial significance and a religious connotation. Majorly in India they belong to the Zoroastrian Faith and therefor in India Parsis are also called Zoroastrians.[11] The foundation of this term Zoroastrian is basically on the principle and belief in one God and also that it is laid on the moral grounds of good thoughts, good words and good deeds.[12] Conversion in Parsis was enjoyed by the Zoroastrian religion but in India conversion is considered against the religious faith and it is against the customs and usages of Parsis in India.[13] Mostly the Parsis in India are hugely influenced by the Hindi customs and usages. In India the Parsi Personal laws applies to:

  1. The descendants of original Persian emigrants
  2. Persons whose parents are Zoroastrians
  3. People who profess Zoroastrian faith
  4. People whose father is or was a Parsi and mother alien but believes in the Zoroastrian faith
  5. Zoroastrians from the land of Iran who have temporarily or permanently settled in and around the province of India.[14]

The dual administration of justice came into existence in respect of Parsis and Christians after the rule of the East India Company and its successors and the Crown.[15] Except the personal laws of Hindus and Muslims all the other British Indian Subjects came under the rule of the presidency town and were ascertainable by the sound principle of justice, equity and good conscience which meant the rule of English law and this rule was made applicable to the Indian society, people and circumstances.[16]

In the case of Waghela Rajsamji v. Sheikh Mahidin[17] It was held that everyone who fell under the list of the British Indian Subjects in the Presidency Town were to be governed by the common English law principle of justice, equity and good conscience.

Introduction to Parsi Marriage

Marriages in Parsis are considered to be a contract however the religious ceremony of ‘Ashirvad’ is considered to an essential ground for proving and maintaining its validity.[18] In the case of Parshottam v. Meherbai[19] it was held that Ashirvad means blessing and is essential to prove the validity of a marriage. Further the court held that it means an exhortation or prayer that the parties recite before the marital observations. Another important aspect is the marriage regarding the Jews and it is also believed to be a contract and is validated by a written contract known as Katuba executed between the parties intending to marry. Further to validate the marriage religious ceremonies should also be followed. Further the Special Marriage Act, 1954 contends that a marriage is a civil contract. According to the same a marriage can be held void by non-age and lack of consent of either parties.

Definition of Marriage

Canon law defines marriage as:

Marriage is a conjugal union of man and woman which arises only from the free consent of each spouse, but this freedom relates to the question whether two persons really wish to enter into matrimony, it is entirely independent from the free will of spouses. Once a contract of marriage is entered into, a marriage is regarded as a sacrament; as an indissoluble union; only death can put it asunder.[20]

In the case of Hyde v. Hyde[21] Lord Penzance gave the definition of marriage as – “I conceive that marriage as understood in Christiandom may be defined as the voluntary union for life of one man and one woman to the exclusion of all other.

Also in the case of Nachimson v. Nachimson[22] it was held that parties entering into a marriage should enter with an intention to last for life. Although it could dissolve later on by various grounds available to the parties including the irretrievable breakdown of marriage.

Ceremonies of Marriage under Parsi Law

In India every community has a different and diverse set of prescribed rites and ceremonies for marriage and they vary from community to community. It is noticed that communities like the Hindus have a very elaborate and lengthy ceremony of marriage whereas the Muslim community have a very short and simple ceremony for marriage.[23] Whereas in some communities the rituals and ceremonies of marriage are not even required, just the cohabitation of individuals is enough to validate and establish a marriage. [24]

Under Parsi law the religious ceremony of Ashirvad is essential to be performed by a Parsi priest in presence of two Parsi witnesses to validate a marriage and its registration is also vital and importance to establish the sacrament of marriage.[25] Parsi law requires the marriage to be immediately registered and certified on the solemnization of marriage by the officiating priest in the prescribed form. This certificate must be signed by the priest, the two witnesses present and the parties to the marriage. After the certification, the same must be sent by the priest to the office of the registrar at whose place such marriage has been solemnized with a fee of two rupees, after which the registrar enters the same into the certificate register maintained by him.[26]  In furtherance the failure to register a marriage however does not affect its validity and also the Parsi Marriage and Divorce Acts, 1936-88 lays down that marriages cannot be invalidated by the mere reason that the priest has not certified it or that the certificate was irregular, incorrect or defective. [27]

Marriage under Parsi Personal Laws


The Parsi community is strictly a monogamous and endogamous group of people.[28] Long time ago there used to be avoidance of marriages between priestly and non-priestly families and because of these restrictions and small size of their community, it was nowhere surprising that the potential mates were affinal relatives and close consanguinals. In the Parsi community cross and parallel cousin marriages are also permitted, as well as marriages which are inter-generational is also permitted. The community however today faces a huge problem that is low fertility rate and small population size. It has become a trend since 1950’s that the deaths have outnumbered the births to such a greater extent that this community has just become a small molecule of people in the society.[29] There are several reasons for the decline in the birth rate which are as follows:

  1. Many Parsis have emigrated from India and have married Non-Parsis and as soon as they marry a non-Parsi they are left out from the community and this has resulted in the community collapsing.
  2. Another reason for the decline of population in their community is that the acceptance of children born out of marriages between a Parsi and Non-Parsi and this question as to their acceptance is vehemently debated all over India and abroad.
  3. Another essential reason is the rate of divorce and this is because compared to other communities, the divorce laws of Parsi are much easier than the others.
  4. Similarly economic emancipation and education of females have also led to the decline in population and high rate of divorce. Furthermore re-marriage after the death of one spouse is also permitted for both the sexes. [30]

The Parsi Marriage and Divorce Act came in 1865.[31] The question of law relating to marriage and divorce was taken up in 1923 and this led to the appointment of a sub-committee to suggest various amendments. Various suggestions and enactments were introduced and this introduction was brought about by Sir Dinshaw Wacha and Late Rt. Hon’ble Sir Dinshaw F. Mulla and they approved the draft and came with a final law.[32]

The Bombay High Court in one of the landmark judgment held that any Irani who temporarily resided in India and was a registered foreigner, also whose domicile continued to be his or hers present domicile cannot be said to be a Parsi since he was a Zoroastrian.[33] But on the other hand it is true and valid that a Zoroastrian Irani is a Parsi. Also it was made clear by various provisions that if a Parsi ceases to be a Parsi then we will be governed by the provisions of this Act.[34] Further this act provides for the rule of nullity and also how the principles of epogomy apply and how it can be expressly noted:

  1. The status of the parties cannot be altered by a void marriage
  2. Within the prohibited degrees of marriage the doctrine of ‘Factum Valet’ which means what has been done as a matter of fact cannot be disputed does not cure the defect of marriage.
  3. It is also stated that if a marriage becomes void then too the children will be legitimate.
  4. A void marriage which is considered to be a no marriage having no judicial declaration of its invalidity is compulsory and essential since no offence of bigamy is committed if any party to the void marriage enter into a second marriage before it gets annulled.
  5. Also a decree of nullity is better and safe to have being a declaration from the court of competent jurisdiction.[35]

Another important question of law put forward in front of various courts of the country was whether the first wife can get an injunction against her husband who is living or wants the second wife. On this matter the Bombay and Rajasthan High Court were of the opinion that they can file a suit under the Specific Relief Act, 1963 whereas the courts of Mysore and Patna held that[36]:

  1. When a decree to annul a marriage is passed by a court of law then it merely means that it declares an existing fact.
  2. Under Section 125 of CrPC a wife of a void marriage cannot claim maintenance but in the light of modern views and opinions, it is said that maintenance for a prolonged cohabitation between the husband and wife can be taken and granted.
  3. Under the said Act, marriage can be said to be void if:
  4. Parties fall under the purview of prohibited degrees of relationship that is either affinity or consanguinity
  5. If the formalities of a necessary marriage if not have been performed
  6. If the female has not completed the age of 18 years and the male not completed the age of 21 years
  7. If either party to the marriage was impotent[37]

This act lays down clearly and explicitly the various provisions which are required for a valid marriage and also it is far more better in the sense that the child of void marriage is not illegitimate but will be told to be a legitimate child.[38] The act here is clear since the modern or oriental view clearly states that an offspring born out of an void marriage is said to illegitimate. The Parsi laws is in favour of the child and due to their parents illegitimacy the child should not be held responsible and punished. This Act is based on the foreign policies that if parties to a marriage have acted and conducted themselves in good faith then they cannot be pushed or driven out of their various vagaries and misfortunes.[39]

The act also clearly lays down the provisions and requirements for a valid marriage and the requisites for the same which are as follows:

  1. The parties must not fall within the degrees of prohibited relationship that is affinity and consanguinity;
  2. The marriage between the intending parties must have gone through the ceremony of Ashirvad in presence of a priest and two Parsi witnesses;
  3. Further a Parsi below the age of 21 can only marry with the consent of her parents or guardians. But furthermore the Parsi Marriage and Divorce Act, 1986 has brought about the change that the bridegroom must complete the age of 21 years and the bride must complete the age of 18 years. [40]

The Parsi law is enshrined on the principle of monogamy and if any of the party marries or has a second marriage then such subsistence of first marriage is prohibited under the Act.[41] Also the act has specified that if the spouse has changes the religion and then the earlier marriage will still continue and not abate, dissolve  and this shows how the Parsi Marriage laws is progressive and futuristic in nature benefitting the parties to the marriage and supporting its community. Therefore this above provisions makes sure that the parties to marriage can re-marry again only if the first marriage has been dissolved and not otherwise in order to benefit and support the other party to the marriage if the first marriage.

Further the provisions of this act also states that the earlier marriage between the spouses either man or woman continues and is unchanged even though if there is a change in religion or change in domicile of either of the parties to the marriage.[42] However the act is silent on the Parsi spouses change in religion since the act does not provide for the marriage between a Parsi and a Non-Parsi.[43] Therefore it expressly states that the act only deals with parties to marriage who are Parsis in nature and not otherwise.

The Act also states that if the second marriage is solemnized under some other Act which provides for polygamy then also it would be held unlawful within the Parsi personal laws.[44] Also it is said that if a Parsi solemnizes a marriage by the way of some other act then the legitimacy of the child born out of the second marriage would surely be determined by the act by which the second marriage was solemnized.[45]

Now the second marriage is considered to be void and it considered to be penalized under Sections 494 and 495 of the Indian Penal Code for Bigamy. [46]Also it specifies that if a spouse is ceases to be a Parsi then also he will be subjected to the Parsi Personal laws. This means that the spouse is only subjected to the Parsi laws and no other law should be made applicable to them.[47] In furtherance to the same it is said that the parties to intend to marry the second time will be subjected to penal provisions but also the priest who takes care of such marriage proceedings and issues such certificate also invites for himself punishment under various penal provisions. Such a punishment for the priest is basically imprisonment up to 6 months or fine up to two hundred rupees or with both.[48]

Registration of Parsi Marriage

Both the Parsi Marriage and Divorce Act, 1865[49] and the Parsi Marriage and Divorce Act, 1936[50] provide for the registration of marriages. Section seven of this act specifies the appointment of a Marriage registrar and the power associated with the appointment of such a person and how he can be removed in the state government as also in the Chief Justices of the High Courts. [51]Furtherance the state government can make appointment of registrars without mentioning the local limits or jurisdiction of the same, whereas the chief justices have to mention the jurisdiction and can only appoint for the local limits.[52] Section 9 of the said says that a priest must send a copy of the marriage certificate to the registrar[53], failing to which he has to bear a fine of rupees hundred as per Section 13 of the said act[54].

After which the registrar has to register the marriage in the marriage register book and the act makes it mandatory for a Parsi marriage to be registered, yet under Section 114 of the Indian Evidence Act[55], the basis of prolonged cohabitation would arise and this would be applicable to the particular act since the evidence act is applicable to all the personal laws in India. The marriage register is open to public inspection since it is a public document as mentioned under Section 8 of the said act.[56] It is to be noted that the Parsi marriage registrar is different from the marriage registrar under the deaths, births and marriages registration Act, 1886 as the priest has so send a copy of the marriage certificate to the marriage registrar at the time when the marriage is solemnized and then has to periodically send copies of marriage registration to the registrar-general of births, deaths and marriages of the state.[57]

Further the Apex court did not take into account the fact that under this act it is compulsory to register marriages whereas it is not the case in other codified personal laws and provisions.[58] Since in a landmark judgment the Supreme Court held that talking about non-registration of Hindu marriages that registration of a marriage cannot determine its validity and though it has great penitentiary value in case of family court and matters. [59]

Requisites to Validity of Parsi Marriage

Section 3 of the said act deals with the requisites to a valid Parsi marriage and states that no marriage shall be valid if:

  • contracting parties are related to each other in any degree of consanguinity or affinity;
  • marriage is solemnized according to Parsi ceremony of Ashirvad by a priest in presence of two witnesses (Parsis);
  • In case of Parsi marriage if male has not completed age of 21 and female age of 18.
  • Considering the above to be true and the marriage to be valid, a child born out of such a marriage would be considered to be a legitimate child.[60]

Remarriage when Unlawful

Section 4 of this act deals with remarriage when it is unlawful and states that no Parsi should contract any marriage under this act or any other law in his life time and a Parsi only after his lawful divorce be allowed to remarry again if his previous marriage was declared dissolved, if not then the new marriage would be null and void except after a divorce, declaration or dissolution as aforesaid within the provisions of the act.[61]

Punishment for Bigamy

Section 5 of the act deals with the punishment a person will be entitled to if performs bigamy and states that if a person before divorce unlawfully performs bigamy he would be subjected to punishment and penal provisions under Section 494 and 495 of the Indian Penal Code unless the except divorce, declaration or dissolution of the earlier marriage.[62]

Certificate and Registry of Marriage

Section 6 of the said act deals with the certificate and registry of marriage and contends that every marriage once solemnized by a priest must be officiated by a certificate as per from contained in schedule 11.[63] This certificate so obtained shall be signed by the contracting parties, witnesses present at the time of marriage and then the priest shall send such certificate with a fee of rupees two hundred to the registrar of the place of such marriage. [64]The registrar on receipt of such certificate and fee will then enter the marriage in the marriage register maintained by him for the purpose of proving the validity and keeping record of Parsi marriages. [65]

Registration of Divorce

Section 10[66] deals with the registration of divorces and states that when a court passes a decree for divorce, nullity or dissolution the court along with the same shall send a copy of the decree for registration to the registrar of marriages, whoever fits under the said specified jurisdiction under Section 7 of the act.[67] The registrar shall then enter the same in the register kept with him as contained in the provisions of part II and this register of marriages shall be similar to the register of divorces and decrees of nullity and dissolution.[68]

Penalty for Solemnization of Marriage

This provision containing the penalty for solemnizing marriage contrary to Section 4 is dealt with Section 11 and it further states that any priest who knows and willfully solemnizes a marriage contrary to the Section 4 shall be convicted thereon, and be punished with an imprisonment for a term which may extend to six months, or with fine about two hundred rupees or both.

Penalty for Priest’s Neglect of Requirements

This is covered under Section 12 of the said act which further contends that any priest who neglects and does not comply with the essentials of Section 6 shall be convicted thereon and punished for offence with simple imprisonment being about three months or fine about one hundred rupees or both.[70]

Divorce under Parsi Law

The Parsi Marriage and Divorce Act, 1936

Divorce under Parsi law is governed by the Parsi Marriage and Divorce Act, 1936[71] and this act explicitly states that this act governs and elucidates about the provisions of marriage and divorce of Parsis and Irani communities in India.[72] This act extends to whole of India except the state of Jammu & Kashmir. This act was enacted and enforced by the Parsi marriage and divorce (Amendment) Act, 1988 which was mainly constituted to change the archaic rules which were more discriminatory in nature.[73] The salient features of the act which govern both marriage and divorce are as follows:

  1. The provisions of the act clearly specify that it is applicable to Parsi Zoroastrian
  2. For a valid marriage there must be the ceremony of Ashirvad in presence of two Parsi witnesses and one priest
  3. The priest must issue a certificate of marriage and that must be signed by the parties and must be submitted to the registrar of marriages and such certificate must be entered in the registrar of certificates
  4. All the marriages must be registered and if any non-compliance it would lead to fine and imprisonment
  5. For a valid marriage the man must be above 21 years of age and the female must be 18 years of age
  6. Marriage should not be within the degrees of prohibited relationship and this Act lays down 33 relatives that neither a Parsi woman or man can marry
  7. Both polygamy and bigamy are not allowed
  8. The act specifically deals and states the do’s and don’ts of a priest and witnesses and if not complied by then there implications
  9. The act covers provisions for divorce between Parsi couples[74]

Suits for Nullity

Section 30 of the said act defines about the suits for nullity and states that in any case when the consummation of the marriage from natural forms or causes is not possible, then such a marriage at the instance of either party can be declared null and void.[75]

Suits for Dissolution

This provision is defined under Section 31 of the act and it elucidates that if husband or wife have been separate from each other for a period of seven years and not have heard of each other being alive or no one has naturally known or heard of them, the marriage of such husband or wife at the instance of either party may be dissolved.[76]

Grounds for Divorce

Section 32 of the said act defines the grounds for divorce that any married person may sue for divorce on one or more of the following grounds such as[77]:

  1. Marriage has not been consummated within one year after its solemnisation owing to the wilful refusal of the defendant to consume or resume the same;[78]
  2. That the defendant at the time of marriage was of unsound mind and this was habitually so up to the date of the suit; but the same won’t be granted if the plaintiff was ignorant of the fact and that the suit was filed three years from the date of the marriage.[79]
  3.  That defendant has been incurably of unsound mind for a period of more than 2 years or upwards immediately proceeding the filing of the suit and has suffered continuous mental disorder of such kind and that the plaintiff cannot live reasonably with the defendant.[80]

Non-resumption of Cohabitation

The following provision is given under Section 32A[81] and talks about non-resumption of cohabitation or restitution of conjugal rights within one year in pursuance of a decree to be ground for divorce that where either party whether solemnised before or after the commencement of the marriage and divorce act, 1988 mat sue on ground that[82]:

  1. There has been no resumption between the parties for matter of one year of upwards after the passing of a decree for judicial separation;
  2. There has been no restitution of conjugal rights as between the parties to the marriage for period of one year or upwards from passing of the decree of a restitution of conjugal rights in a proceeding involving the parties.[83]

Divorce by Mutual Consent

This provision is given stating the divorce by mutual consent under Section 32B elucidating that a suit for divorce if filed by both the parties to a marriage together whether this marriage is solemnised before or after the commencement of this act and they have been living separately for period of more than one year or more, and have not been able to live together and they mutually have agreed that their marriage should be dissolved.[84] In furtherance to the same the court shall after hearing to both the parties make such inquiry and as it thinks fit, that the averments made are true and valid and that the consent of either party was not obtained but force or fraud, can pass a decree declaring to be dissolved with effect from the date of the decree. [85]

Joining of Co-defendant

This provision is given under Section 33 of the said act and states that in all suits for divorce under the ground of adultery, the plaintiff shall make the person with whom adultery is alleged to have committed a co-defendant and that in the suit by a husband the adulterer has to pay the whole amount or part of any of the costs.[86]

Suits for Judicial Separation

Given under Section 34 it states that any married person can use ground for judicial separation for which a person could have filed a suit for divorce.[87]

Decrees in Certain Suit

This provision is highlighted under Sections 35 and is containing of Sections 30, 31, 32, 32A or 34 and that the decrees to be set by the court can be as follows[88]:

  1. Act or omission set forth in plaint has not been condoned;[89]
  2. Husband and wife are not colluding together;[90]
  3. Plaintiff has not connived [91]
  4. There has been no unnecessary or improper delay in instituting the suit;[92]
  5. There is no other legal ground available on which relief can be adjusted or granted.[93]

Suits for restitution of Conjugal Rights

Defined under Section 36 it states that where a husband deserts without the lawful cause and cases to cohabit with his wife, or where wife has pertained to something similar then they might sue for restitution of his or her conjugal rights and if the court is satisfied that the parties are stating the truth as contained in the plaint, and there is no just ground otherwise to prove the same, then the decree may proceed such restitution of conjugal rights accordingly.[94]


This is contained under Section 39 of the act and elucidates that when the wife or husband has no sufficient income to support the necessary essentials then on the application by either the husband or wife the defendant has to pay to the plaintiff in regards some weekly or monthly sum as the court may seem reasonable.[95]

Permanent Alimony & Maintenance

This is given under Section 40 of the Parsi Marriage and Divorce Act and it contends that any court hearing on the present provision should direct the defendant to pay to the plaintiff the necessary costs for his or her maintenance, such gross sum or monthly or periodical sum for a term not exceeding the life of the plaintiff as having regard to the defendants own money and other property.[96] The court should be just and reasonable in deciding the stipulated amount to be paid and if necessity, by a charge on the movable or immovable property of the defendant. Further if the court is satisfied that there is any change in circumstance of either party, it may modify or rescind any such order in the manner it deems fit.[97]

Payment of Alimony to Wife or Trustee

The payment of alimony to wife or trustee is provided under Section 41 and it clears that in all cases where the court makes a decree or order for alimony it may direct the sum to be paid directly to the wife or the trustee appointed and approved by the court and shall also impose any restrictions as the court may deem fit and expedient and from time to time appoint a new trustee or guardian if for any reason if the court deems fit.[98]

Disposal of Joint Property

It is given under Section 42 of the said act and states that the court may make any provisions in the final decree as it deems fit and just with respect to the property presented to or at the time of marriage which belongs to both the husband and wife.[99]

Liberty to Parties to Marry again

This provision under this act is given under Section 48 and gives the liberty to the party to marry again and when any decree granting a divorce or annulling or dissolving the marriage has expired then no appeal should be presented against such decree and the appeal of such a divorce if has been granted or a marriage is declared to be annulled or dissolved is shall be lawful with respect to the parties involved to marry again or not.[100]

The Parsi Divorce Case


In the following case a petition was filed before the Supreme Court challenging the constitutionality of the Parsi Marriage and Divorce Act and this petition paved way for reforms within the minority communities.[101] The petitioner in this case was Naomi Sam Irani who had challenged several provisions of the Act contending them to be in contravention with Articles 14 and 19 of the Constitution of India and that they violated her fundamental rights. Naomi had married Sam Irani and both had two children under the Zoroastrian – Iranian rights and customs[102]. In 2016 Sam filed a Parsi matrimonial suit against his wife seeking dissolution of the marriage under Section 32 (dd) and 32 (g) of this Act[103].

Court Discretion

This particular section being Section 32 (dd)[104] states that any married person can sue for divorce on ground that the defendant since solemnisation of marriage has treated the plaintiff with cruelty and has behaved in an improper manner and the court cannot compel the plaintiff to live with the defendant. Further Section 32 (g) allows to sue for divorce if the defendant has deserted the plaintiff for past two years. The divorce suit filed is still pending in the Mumbai High Court.[105] Further another discriminatory feature and section of this act is Section 24 which deals with the appointment of delegates by the state governments for better adjudication of the cases under this act and this delegation allows local Parsis to express the opinion in a better and more prospective way and manner.[106] Further such delegate appointed should be a Parsi having his name published under the official gazette and the number being within the local limits of the original civil jurisdiction.[107]

No Speedy Disposal

In the following context Naomi claimed before the Supreme Court that she has not been appointed any delegate by the state officials or government to participate in their matrimonial proceedings and this non-appointment of delegation has caused the delay in proceedings, deprived the speedy disposal of her case and also the specialised jurisdiction enjoyed otherwise by the family courts.[108] She in furtherance to her contentions specifies that she challenges Section 18, 19, 20, 24, 29, 30, 46 and 50 of the said Act which guarantee the appointment of a delegate and speedy disposal of suits and further states that she is being denied interest of equality, fairness and right to speedy disposal of her case, furtherance to her matter including matrimonial disputes.[109]

Also the Section 18 of the act clearly specifies about the formation of Special family courts to hear suits related to the act and this allows the government to form such courts in Chennai, Mumbai, Kolkata and Delhi and these courts are called the Parsi Chief Matrimonial Courts.[110]

Parsi Court

The Parsi Chief Matrimonial Courts sits only twice or thrice a year and only for small and shorter duration as compared to other courts of law.[111] As compared to other types of judicial proceedings this court acts in help of speedy delivery of justice and equality which was possibly not seen during the enactment of this act. This type of a court takes time to be set up and requires around eight week’s pre hand notice to include five delegates and the special judge to sit for such a hearing.[112] Further as a subject law is very dynamic and it should not remain still and stagnant and therefore an evolution every time or sphere is required. Naomi further argues that reforms in law should be implemented which take care of public good and ease convenience. Naomi finally contends that the jury system needs to be abolished under this type of courts and also that the structure of delegates is quite anachronistic and therefore this system leads to delay in speedy disposals rather than making it more accessible and cheaper.[113]

Section 30 & 50

Section 30[114] of the said act allows the declaration of marriage at the instance of any of the parties, to be void and null only if consummation from natural causes is impossible, on the other hand Section 50 deals with the settlement of wife’s property which could be given for the welfare of the children.[115] Drawing parallel to the above provisions Naomi held these sections to be semi-substantive provisions and that they are absent from other codified personal laws.[116]Since other codified laws required declaration of marriage on non-consummation of marriage on account of impotency of spouse, legal or medical. Naomi further held Section 50 to be discriminative, gender-biased and therefore unconstitutional.[117]

Family Courts

According to the Family Courts Act of 1984[118] it had become mandatory to set up family courts with a view that it could promote conciliation and help in securing speedy settlement of disputes which dealt with marriage and family affairs. This right of family courts was entertained and exercised by the district courts or subordinate civil courts.[119] However a major problem of this act is that it bars any district or subordinate court from exercising the jurisdiction in matrimonial matters. Naomi also held that provisions as to settling and regulation of family courts is subject to the respective person codified laws but not subject to the Parsi personal law of marriage and divorce which is intended for securing a speedy settlement of disputes to resolve disputes.[120]

Further contending Naomi points out that the act set up the Parsi Chief Matrimonial Courts and Parsi District Matrimonial courts thereby where only Parsis would be compelled to seek jurisdiction over these special courts, while all others were entitled to the advantages of family courts.[121] This she stated directly pointed out at the inequality of principle of equality before law and equal protection of law which is guaranteed under the Article 14 of the Constitution of India.[122]

She also stated that compared to other codified personal laws, the territorial jurisdiction based upon the present cause of action is also discriminatory in nature.[123] Also a plaintiff under this act does not have the convenience of invoking the jurisdiction of any court in whose territorial jurisdiction the case resides.[124] Therefore she finally said that this act impinges her fundamental rights which include speedy disposal of disputes and equality guaranteed before law.[125] The hearing and outcome of this case is still expected and this hopefully would bring about a much awaited reform under the Parsi religion and to the Parsi marriage and divorce Act, 1936.[126]


We can conclude from the above research that Parsi Marriage and Divorce can be classified into a codified personal laws and has its benefits and withdrawl. Both the laws on marriage and divorce have some excellent features which have been implemented and regulated with utmost care which help in distinguishing this personal law from other existent laws, but however there are many discrepancies in the act as well the concepts of Parsi law which need to be improvised and made more adaptive and futuristic and not limited to not only to the people not belonging to the Parsi community.  We can see that on one hand there are provisions such as registration of marriages which include the ceremony of Ashirvad but on the other hand this requires a certificate of registration to be mandated to prove the validity of the marriage, however in other personal laws this freedom is not curtailed. In Parsi personal laws the applicability is limited and the extent of the same is narrow and not that far-fetched, but other personal laws in that sense are quite progressive and far-sighted when it comes to key concepts of maintenance and acquiring of jurisdiction in the area of cause of action. In conclusion we can state that on one side Parsi law is quite complete and sanitised but on later part there a lot of modulations and changes that need to be brought up and implemented in order to draw parallel and come at par with other personal laws. Parsi law has that light and ray to create a change but just needs that direction in order to prove itself, compete and create a stand.

Frequently Asked Questions

  1. How can Parsi Personal Laws be read and interpreted?
  2. What are the various principles that govern Parsi Personal Laws?
  3. What are the relevant case laws governing the Parsi Laws for Marriage and Divorce?
  4. What are the guidelines for marriage under Parsi Personal Laws?
  5. What are the grounds for divorce under Parsi Personal Laws?
  6. What is the nature of Parsi Marriage?


[1] Parsi Marriage and Divorce Act, 1936 (Act 3 of 1936) (23rd April, 1936)

[2] The Constitution of India, 1949 – Article 21


[4] Parsi Marriage and Divorce (Amendment) Act, 1988, (No. 5 of 1988), 25 March 1988

[5]Parsi Marriage and Divorce (Amendment) Act, 1988- Section 34

[6]Parsi Marriage and Divorce Act, 1936 – Requisites for a valid marriage

[7] The Parsi Marriage and Divorce Act, 1872

[8]Parsi Marriage and Divorce Act, 1936 – Section 32









[17] Waghela Rajsamji v. Sheikh Mahidin (1887) 141 A 89

[18] Parsi Marriage and Divorce Act, 1936 – Requisites for a valid marriage

[19] Parshottam v. Meherbai  ILR (1880) 13 Bom 302

[20] Women and The Law, Dr. Nuzhat Parveen Khan, Universal Law Publication, p.27

[21] Hyde v. Hyde (1860) I and D 130 at 133

[22] Nachimson v. Nachimson (1930) I and D p. 271ce

[23]Parsi Marriage and Divorce Act, 1936 – Requisites for a valid marriage

[24]Parsi Marriage and Divorce Act, 1936 – Requisites for a valid marriage – Section 3

[25]Parsi Marriage and Divorce Act, 1936 – Section 3

[26] Parsi Marriage and Divorce Act, 1936 – Section 6

[27] Parsi Marriage and Divorce Act, 1936 – Section 3




[31] Parsi Marriage and Divorce Act, 1872







[38] The Parsi Marriage and Divorce Act, 1936 – Section 7

[39] The Parsi Marriage and Divorce Act, 1936 – Section 11

[40] The Parsi Marriage and Divorce Act, 1936 – requisites for a valid marriage – Section 3






[46] The Indian Penal Code, 1860 – Section 494 and 495


[48] The Parsi Marriage and Divorce Act, 1936 – Section 11

[49] The Parsi Marriage and Divorce Act, 1865 (15 of 1865)

[50] The Parsi Marriage and Divorce Act, 1936 (Act 3 of 1936) (23rd April, 1936)

[51] The Parsi Marriage and Divorce Act, 1936 – Section 7

[52] The Parsi Marriage and Divorce Act, 1936 – Section 8

[53] The Parsi Marriage and Divorce Act, 1936 – Section 9

[54] The Parsi Marriage and Divorce Act, 1936 – Section 13

[55] The Indian Evidence Act, 1872 , 187201 – Section 114

[56] The Parsi Marriage and Divorce Act, 1936 – Section 8




[60]The Parsi Marriage and Divorce Act, 1936 – Section 3

[61]The Parsi Marriage and Divorce Act, 1936 – Section 4

[62]The Parsi Marriage and Divorce Act, 1936 – Section 5

[63]The Parsi Marriage and Divorce Act, 1936 – Section 6

[64]The Parsi Marriage and Divorce Act, 1936 – Section 6(2)

[65]The Parsi Marriage and Divorce Act, 1936 – Section 6(3)

[66]The Parsi Marriage and Divorce Act, 1936 – Section 10

[67]The Parsi Marriage and Divorce Act, 1936 – Section 10(2)

[68]The Parsi Marriage and Divorce Act, 1936 – Section 12

[69]The Parsi Marriage and Divorce Act, 1936 – Section 6

[70]The Parsi Marriage and Divorce Act, 1936 – Section 12(a)

[71] The Parsi Marriage and Divorce Act, 1936 (Act 3 of 1936) (23rd April, 1936)

[72] The Parsi Marriage and Divorce Act, 1936 (Act 3 of 1936) (23rd April, 1936) – Section 2



[75]The Parsi Marriage and Divorce Act, 1936 – Section 30

[76]The Parsi Marriage and Divorce Act, 1936 – Section 31

[77]The Parsi Marriage and Divorce Act, 1936 – Section 32

[78]The Parsi Marriage and Divorce Act, 1936 – Section 32(a)

[79]The Parsi Marriage and Divorce Act, 1936 – Section 32(b)

[80]The Parsi Marriage and Divorce Act, 1936 – Section 32(c)

[81]The Parsi Marriage and Divorce Act, 1936 – Section 32A

[82]Parsi Marriage and Divorce (Amendment) Act, 1988, (No. 5 of 1988), 25 March 1988

[83]The Parsi Marriage and Divorce Act, 1936 – Section 32B

[84]The Parsi Marriage and Divorce Act, 1936 – Section 32B (1)

[85]The Parsi Marriage and Divorce Act, 1936 – Section 32B (2)

[86]The Parsi Marriage and Divorce Act, 1936 – Section 33

[87]The Parsi Marriage and Divorce Act, 1936 – Section 34

[88]The Parsi Marriage and Divorce Act, 1936 – Section 35

[89]The Parsi Marriage and Divorce Act, 1936 – Section 35(a)

[90]The Parsi Marriage and Divorce Act, 1936 – Section 35(b)

[91]The Parsi Marriage and Divorce Act, 1936 – Section 35(c)

[92]The Parsi Marriage and Divorce Act, 1936 – Section 35(d)

[93]The Parsi Marriage and Divorce Act, 1936 – Section 35(e)

[94]The Parsi Marriage and Divorce Act, 1936 – Section 36

[95]The Parsi Marriage and Divorce Act, 1936 – Section 39

[96]The Parsi Marriage and Divorce Act, 1936 – Section 40

[97]The Parsi Marriage and Divorce Act, 1936 – Section 40(1)

[98]The Parsi Marriage and Divorce Act, 1936 – Section 41

[99] The Parsi Marriage and Divorce Act, 1936 – Section 42

[100] The Parsi Marriage and Divorce Act, 1936 – Section 48



[103] The Parsi Marriage and Divorce Act, 1936

[104] The Parsi Marriage and Divorce Act, 1936

[105] The Parsi Marriage and Divorce Act, 1936 – Section 32(g)

[106] The Parsi Marriage and Divorce Act, 1936 – Section 24



[109] Parsi Marriage and Divorce (Amendment) Act, 1988, (No. 5 of 1988), 25 March 1988

[110] The Parsi Marriage and Divorce Act, 1936 (Act 3 of 1936) (23rd April, 1936)




[114] The Parsi Marriage and Divorce Act, 1936 (Act 3 of 1936) (23rd April, 1936) – Section 30

[115] The Parsi Marriage and Divorce Act, 1936 (Act 3 of 1936) (23rd April, 1936) – Section 50



[118] The Family Courts Act, 1984




[122] The Constitution of India, 1949




[126] The Parsi Marriage and Divorce Act, 1936 (Act 3 of 1936) (23rd April, 1936)

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