Parsi Marriage and Divorce Act, 1936: Contemporary Judicial Interpretations and Legislative Challenges

Parsi Marriage and Divorce Act, 1936: Contemporary Judicial Interpretations and Legislative Challenges

Introduction

The Parsi Marriage and Divorce Act, 1936 (“the 1936 Act”) constitutes a distinctive matrimonial code for the Parsi Zoroastrian community in India. Although originally inspired by English matrimonial jurisprudence, the Act has gradually developed its own doctrinal contour, shaped by statutory amendments (most notably in 1988) and a robust corpus of case-law emanating primarily from the Bombay High Court and the Supreme Court of India. This article critically analyses the contemporary operation of the 1936 Act, interrogating the institutional architecture of the “Parsi Chief Matrimonial Courts”, the substantive and procedural grounds for matrimonial relief, and the constitutional implications of this personal-law regime. Particular emphasis is placed on the recent judicial trend to re-examine traditional doctrines—such as cruelty, maintenance and mutual-consent divorce—against the backdrop of evolving notions of gender equality, public policy and access to justice.

Historical Context and Legislative Framework

The earliest statutory recognition of Parsi matrimonial law dates to the Parsi Marriage and Divorce Act, 1865. The 1936 Act replaced the colonial enactment, systematically codifying marriage solemnisation (ss. 3–9), registration (ss. 6–10), matrimonial courts and procedure (ss. 18–26 & 46), and substantive grounds for relief (ss. 30–35). Parliamentary reform in 1988 introduced inter alia section 32-B, enabling divorce by mutual consent, and reduced the number of lay delegates from seven to five.[1] The Act therefore stands at an intermediate point between the Hindu Marriage Act, 1955 and the Indian Divorce Act, 1869: relatively modern, yet still reflective of a communitarian ethos.

Institutional Architecture: Special Courts and the Role of Delegates

Constitution of Courts

Sections 18 and 19 establish specialised forums—Parsi Chief Matrimonial Courts—in Presidency-towns and notified districts. In Kamal V. M. Allaudin v. Raja Shaikh (1990)[2] the Bombay High Court affirmed that these courts are not ordinary civil courts exercising inherent jurisdiction under clause 35 of the Letters Patent but derive exclusive, statutory jurisdiction. Consequently, the High Court, when exercising matrimonial jurisdiction under the Act, is transformed into a sui generis tribunal whose powers and procedure are circumscribed by the statute.

The Delegate System

Sections 19, 24 and 46 mandate that the presiding judge is “aided” by delegates drawn from the Parsi community. Although historically seven delegates were required, the 1988 amendment reduced the quorum to five. The jurisprudence demonstrates two recurring issues: (i) whether non-compliance with delegate participation vitiates proceedings; and (ii) whether delegates have any role in uncontested matters. In Pistonji Kekobund Bharucha v. Aloo Bharucha (1983)[3] the court clarified that delegates decide only questions of fact, while questions of law remain exclusively with the judge. Minoo Rustomji Shroff v. Union of India (2005)[4] further held that delegates are excluded altogether in mutual-consent divorces under section 32-B because such proceedings entail no factual adjudication.

Grounds for Nullity, Dissolution and Divorce

Nullity and Dissolution simpliciter

Section 30 permits a decree of nullity where consummation is “from natural causes impossible”, while section 31 allows dissolution when a spouse has not been heard of for seven years. The Supreme Court in Ms. Jordan Diengdeh v. S. S. Chopra (1985)[5] expressly noted the progressive nature of these provisions relative to other personal laws, highlighting their parity with contemporary English law.

Section 32: Fault-based Divorce

Section 32 enumerates nine fault grounds, including wilful refusal to consummate, pre-marital pregnancy, adultery, bigamy, cruelty, grievous hurt, venereal disease, desertion for two years, and imprisonment of seven years or more. Although the statutory language was borrowed from Lord Buckmaster’s 1920 Bill, Indian courts have sought to adapt these grounds to indigenous socio-legal realities.

Evolution of the “Cruelty” Standard

Early case-law, such as Cowasji Nusserwanji Patuck (1937), adopted the stringent English test—danger to “life, limb or health”. However, in Pistonji Bharucha (1983) the Bombay High Court invoked the Supreme Court’s purposive interpretation of cruelty under the Hindu Marriage Act in Dastane v. Dastane (1975) to relax the threshold, reasoning that the constitutional commitment to human dignity necessitates a broader conception.[3] This doctrinal recalibration aligns the Parsi law of cruelty with the pan-Indian trend recognising mental agony and legitimate apprehension of harm.

Section 32-B: Divorce by Mutual Consent

Inserted in 1988, section 32-B represented a paradigmatic shift from adversarial to consensual dissolution, mirroring section 13-B of the Hindu Marriage Act. Recent decisions—Rohinton M. Surty v. Kashmira Surty (2022)[6] and Navaz S. Irani v. Saizad F. Irani (2024)[7]—demonstrate judicial willingness to streamline procedure, encouraging mediation and recognising irretrievable breakdown as an underlying rationale. These cases also underscore the courts’ sensitivity to child custody and settlement agreements, integrating contemporary family-law principles into the statutory framework.

Section 40: Permanent Alimony, Maintenance and Public Policy

Section 40 vests wide equitable powers in the matrimonial court to grant permanent alimony having regard to the “means” of the parties. In Hirabai Bharucha v. Pirojshah Bharucha (1945)[8] Justice Chagla emphasised that the provision is rooted in public policy, aimed at preventing divorced spouses from becoming a burden on community charities like the Bombay Parsi Punchayet. The court in Geeta Satish Gokarna v. Satish Gokarna (2004)[9] reaffirmed this outlook, invalidating contractual waivers of future maintenance as null for offending the protective purpose of section 40 and constitutional principles of social justice.

Procedural Dimensions: Registration, Evidence and Comparative Forums

Section 6 mandates registration of Parsi marriages, yet compliance remains inconsistent. The Supreme Court’s universal directive for compulsory registration in Seema v. Ashwani Kumar (2006)[10] bolsters statutory intent, reinforcing legal certainty and facilitating proof in matrimonial litigation. Procedurally, the 1936 Act assimilates the Code of Civil Procedure, 1908 except where specifically modified—e.g., the summoning and voting rights of delegates (s. 46). Comparison with forums under the Indian Divorce Act, 1869 reveals that the Parsi Act provides speedier relief without the cumbersome de nisi/absolute confirmation mechanism criticised in Solomon Selvaraj v. Mary (Madras HC, 1967).[11]

Interplay with Constitutional Values and Secular Legislation

While personal-law autonomy is constitutionally protected under Articles 25 and 26, matrimonial law engages Articles 14, 15 and 21. In Sarla Mudgal v. Union of India (1995)[12] the Supreme Court signalled tolerance for inter-faith marriages solemnised under Parsi rites, situating monogamy and consensual dissolution within a secular, rights-oriented paradigm. More recently, in Supriyo v. Union of India (2023)[13] the Court observed that codified personal laws including the Parsi Act explicitly integrate religious ceremonies (s. 3(b)) while also co-existing with secular statutes like the Special Marriage Act, 1954. This duality illustrates the constitutional balancing of religious freedom and individual autonomy—an equilibrium continuously renegotiated through judicial interpretation.

Comparative Perspective and Prospects for Reform

  • Gender Neutrality. Although the 1936 Act largely places spouses on equal footing, certain provisions—e.g., pregnancy by another man (s. 32(c))—are gender-specific and arguably anachronistic.
  • Delegate System Rationalisation. Practical difficulties in empanelling five delegates cause delays. Consideration could be given to an opt-out mechanism in uncontested matters beyond s. 32-B.
  • Irretrievable Breakdown. Despite judicial creativity, the statute does not expressly recognise this ground. Codification would promote certainty and align with Supreme Court jurisprudence under Article 142.
  • Uniform Registration. Amendment to provide for digital, centralised registration would harmonise with the National Civil Registration ecosystem envisaged in Seema.

Conclusion

The Parsi Marriage and Divorce Act, 1936 epitomises a hybrid legal tradition—simultaneously communitarian and progressive. Judicial interpretation has been the primary catalyst for modernising doctrines of cruelty, maintenance and mutual-consent divorce, while statutory amendments have targeted structural reform such as delegate participation. Future legislative attention is warranted to rationalise outdated gendered provisions, formalise irretrievable breakdown, and streamline procedural requirements. Such reform would fortify the Act’s compatibility with constitutional mandates of equality, dignity and access to justice, ensuring that the matrimonial law of a vibrant but numerically small community remains responsive to twenty-first century realities.

Footnotes

  1. Parsi Marriage and Divorce (Amendment) Act, 1988 (Act 5 of 1988).
  2. Kamal V. M. Allaudin v. Raja Shaikh, 1990 (2) Bom CR 222.
  3. Pistonji Kekobund Bharucha v. Mrs. Aloo Bharucha, 1983 Bom LR 1138.
  4. Minoo Rustomji Shroff & Ors. v. Union of India & Ors., 2005 (5) Bom CR 799.
  5. Ms. Jordan Diengdeh v. S. S. Chopra, (1985) 3 SCC 62.
  6. Rohinton M. Surty v. Kashmira R. Surty, 2022 (3) Bom CR 327.
  7. Navaz S. Irani v. Saizad F. Irani, 2024 (1) Bom CR 123.
  8. Hirabai Bharucha v. Pirojshah Bharucha, AIR 1945 Bom 537.
  9. Geeta Satish Gokarna v. Satish S. Gokarna, 2004 SCC OnLine Bom 269.
  10. Seema (Smt.) v. Ashwani Kumar, (2006) 2 SCC 578.
  11. Solomon D. Selvaraj v. Chandriah Mary, (1968) 1 MLJ 280.
  12. Sarla Mudgal v. Union of India, (1995) 3 SCC 635.
  13. Supriyo @ Supriya Chakraborty v. Union of India, 2023 SCC OnLine SC 1348.