What is the origin of Parsi marriage and who is a Parsi?: The Legal Angle


March 4, 2012

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The Parsi Marriage and Divorce Act were passed in 1865. The Parsi Central Associations took up the question of law relating to marriage and divorce in 1923 and appointed a sub­committee to suggest amendments. Many suggestions were made.

Article by Ankita Sharma | Preserve Article

Suggestions were again circulated and fresh suggestions were fully considered by Trustees as well as Association of Parsis and great majority of the Community. Leading Parsis like, Sir Dinshaw Wacha and Late Rt. Hon’ble Sir Dinshaw F. Mulla, approved the draft which finally came to be enacted as the Law on Marriage and Divorce for Parsis.

The Act is applicable only to the Parsis. Therefore, it is essential to know as to who is a Parsi. It is fairly too well known that the Parsis came from Persian Province of ‘Pers’ or “Pars’ from which the word v Parsi’, is derived. The Parsis follow “Zoroastrian” religion. As such, the words “Zoroastrian” and “Parsi” are synonyms. Although the original faith allows conversion, amongst Parsis, Zoroastrian religion is non-convertible religion. It was held that in India, conversion to Zoroastrian religion is against usage and customs. The word Parsi means:

(a) Persons who are descendants of original Persian emigrants.

(b) Person whose father is or was, a Parsi and mother an alien but admitted to Zoroastrian faith.

(c) Zoroastrians from Iran who are residing in India.

The Bombay High Court held that an Irani who temporarily resided in India and was registered as a foreigner and whose domicile continues to be “present domicile” cannot be treated as a Parsi merely because he was a Zoroastrian. But, otherwise, surely, Zoroastrian Iranis a Parsi

In Subsection (2) of Section 52, it is also made clear that even if a Parsi ceases to be a Parsi, he will be governed by the provisions of this Act, if his marriage was solemnized under the Act, notwithstanding the fact that he is not a Parsi and the Parsi Act otherwise ceases to apply.

A. Invalid marriage

A marriage is valid for ever or never. Therefore, if a marriage is not valid, for any reason whatsoever, it is null or void in the eyes of Law. Being no marriage in the eyes of law, it is void initio or that it did not come into existence from its inception.

A void marriage is a marriage on facts because two persons having no capacity to marry have undergone the requisite rites and ceremony of marriage but in the eyes of Law it is no marriage. For instance, in 1990 a man undergoes a ceremony of marriage with his sister and they start living together as husband and wife. That will not make them husband and wife in Law. Their marriage is void initio from 1990 and no legal consequences flow from it.

The rule of nullity is based on the principle of epogomy. It may clearly and expressly be noted that:

i. The void marriage does not alter the status of parties.

ii. The Doctrine of “Factum Valet” (what has been done as a matter of fact cannot be disputed) cannot cure the defect of marriage within the prohibited degrees. However, the statutory Parsi Law in Section 3 (2) makes it clear that even if marriage is invalid, children out of such a void marriage are legitimate.

iii. A void marriage, being no marriage, no judicial declaration of its invalidity is essential in as much as no offence of bigamy is committed if any party to a void marriage enters into a second marriage without getting it annulled. However, it is always better and safer to have a declaration from the Court of Competent Jurisdiction that marriage is void or what is called as Decree of Nullity. Indeed, (1) a third person has no locus standing to file a Petition of nullity.

But he can file a Declaratory Suit under Section 9 of Civil Procedure Code read with Section 34 of Specific Relief Act, 1963. (2) The Second Wife can file a petition for Decree of Nullity on the ground that her husband was already having one wife and as such her marriage with him is Nullity and the (3) First Wife cannot seek Decree of Nullity of her marriage but certainly she may petition for divorce on the ground of husband’s adultery.

However, there appears to be controversy amongst various High Courts as to whether the first wife can get an injunction against her husband who wants to take a second wife. This view is also taken Bombay and Rajasthan High Courts have taken a view that suit may be filed under Specific Relief Act, 1963 whereas the contrary view is taken by Mysore and Patna High Courts.

iv. When Court passes a Decree, annulling the marriage, it merely declares an existing fact.

v. A wife of void marriage cannot claim maintenance under Section 125 of Cr. P.C. Although according to modern view, maintenance can be claimed for a prolonged cohabitation as husband and wife.

vi. A marriage is void under the Act, if –

1. Parties are within prohibited relationship of (a) Consanguinity or (b) affinity.

2. Necessary formalities of marriage have not been performed.

3. Male has not completed the age of 21 years and female has not completed the age of 18 years (Section 3).

4. Either party to the marriage was impotent (Section 30).

B. Valid marriage

Although Aashirwad Ceremony is essential for validity of a Parsi Marriage, yet a Parsi marriage is regarded as a “Contract” also. A marriage of a Parsi, in order to become a valid marriage, requires the following requisites. (Section 3)

1. Parties must not be related within the prohibited degree of

(i) Consanguinity or

(ii) Affinity.

2. Marriage must have undergone the “Ashirwad Ceremony”, by (a) Priest in the presence of (6) two witnesses.

3. The Parsi Act of 1936 provided that a Parsi below the age of 21 could contract marriage only with the consent of his or her guardian or father. But by the Parsi Marriage and Divorce (Amendment) Act, 1986, a change has been brought about. Now bridegroom must complete the age of 21 years and the bride must complete the age of 18 years obviously, the concerned provision is abolished.

C. Legitimacy of children of void marriage

No doubt, the Act lies down clearly and distinctly the requirement for a valid marriage, nevertheless, it fails not in recording in sub section (2) of Section 3 that the child of void marriage will not be held illegitimate and such a child is given legitimacy. The oriental view has been that if the marriage is void, the offspring of such an unholy alliance is illegitimate. However, the Parsi Law does not believe in punishing the child for illegitimacy of its parents and accords the status of legitimacy. Indeed, the modern theory as can be seen from foreign rulings is that if parties have acted in ‘good faith’, they cannot be driven out to vagaries and misfortune.

D. Monogamy

The Parsi Law professes monogamy and, therefore, the second marriage during the subsistence of first marriage is prohibited under the Act. It is noteworthy that the Act makes it abundantly clear that no matter the spouse has changed the religion, the earlier marriage continues and does not abate, disappear or dissolved ipse dixit.

Thus, the earlier marriage continues to follow the spouse like a shadow in the light of earlier marriage. Necessarily, therefore, the either spouse can marry only after the earlier marriage is dissolved (either by Order of Divorce or by a Decree of Nullity) by the Competent Court under the Act.

The same position remains in case of change in domicile. Section 4 of the Act makes it fairly clear that earlier marriage between two Parsis, man and woman remains unchanged even if there is any change either in the religion or change in the Domicile of either spouse. It may, however, be noted that since the Act is not specific on the marriage between a Pars and non Parsi, it is silent on the change of religion of the Parsi spouse. Indeed, the scheme of the Act shows that the Act would apply only if the parties are Parsis and it is obvious that it does not deal with the eventuality of one not being a Parsi. Be it as it is.

However, the Act makes it explicitly clear that even if the second marriage is solemnized under some other Act which provides polygamy, it will be unlawful under Subsection (1) of Section 4 of the Act. Needless therefore to record that the second marriage (whether performed under this Act (undoubtedly it is impossible but assuming that by some dubious method, the second marriage is solemnized under this Act itself then also] or under any other system of law providing for polygamy or a limited polygamy] will be unlawful and void initio.

Subsection (2) Section 4 of the Act renders the second marriage void in express terms; however, it is silent about the offspring of the child/ children born out of wedlock of second marriage. But it should not be difficult to hold that the child/children born out of second marriage under this Act itself would be legitimate. But if a Parsi solemnizes marriage under some other Act, then the legitimacy of child/ children born out of second marriage would be determined under the Act under which the marriage was solemnized.

E. Penalty for bigamy

The second marriage being void, Section 5 makes the second marriage penal and provides for penalty by subjecting the parties to the provision of Sections 494 and 495 of the Indian Penal Code for bigamy. The Act also makes it expressly clear that even if a spouse has ceased to be a Parsi, he will be subjected to Parsi Law. It only means that the spouse is punished for his infringing the Parsi Law and nothing more than that. Indian Penal Code, Section 494 deals with the marriage during the lifetime of husband or wife. The ingredients of Sections 494 of IPC are:

1. The spouse must have contracted the first marriage;

2. That while the first marriage was subsisting, the spouse concerned must have contracted a second marriage;

3. That both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had duly been performed.

The effect of expression “whoever ….marries” (55 Section 494 of IPC must mean “whoever marries validly”. Necessarily, therefore, if the second marriage is void, no consequence follows and the charge under Section 494 fail. It should also be noted that Section 495 of IPC renders the act of concealing the earlier marriage penal.

The combined reading of Section 5 of the Parsi Act, Section 494 and 495 of IPC makes it clear that no person or rather no Parsi can knowingly marry second time. But unknowingly, if a second marriage is solemnized, the penalty under Sections 494 and 495 would not strictly follow. Nevertheless the second marriage under the Act would surely be rendered void initio.

It is worthwhile to note that while the spouse undergoing second marriage is punished for the act of bigamy under Section 5 of the Act, the Priest who ventures to solemnize the second marriage too invites punishment for himself under Section 11 of the Act. Punishment for the Priest contravening and violating the provisions of Section 4 of the Act is simple imprisonment up to six months or with fine up to Two Hundred Rupees or with both.

Registration of Parsi marriages

The Parsi Marriage and Divorce Act of 1865 as well as the Parsi Marriage and Divorce Act of 1936 (the present Act) (under Section 6 of 1936 Act) provide for the registration of marriages. Section 7 of the Parsi Act stipulates appointment of Marriage Registrar and invests powers of appointment and removal of Marriage Registrar in the State Government as well in the Hon’ble the Chief Justices of the High Courts.

While the State Government can appoint the Registrar without prescribing local limits within which he (the Registrar) can exercise his powers, the Hon’ble Chief Justice can make appointment only for the local area of the jurisdiction of High Court. Section 9 of the Parsi Act, inter-alia, and casts statutory duty on the Officiating Parsi Priest to send a copy of marriage certificate to Parsi Marriage Registrar violation of Section 9 of the Parsi Act attracts penalty of fine of Rs. 100/ under Section 13 of the Act.

The Parsi Marriage Registrar, in turn, has to register the marriage in the Register. No doubt, the Parsi Act makes it mandatory to have the marriage registered yet Presumption of Marriage, under Section 114 of Evidence Act, would arise on the basis of prolonged cohabitation and so also, such presumption would arise under all Personal laws in India since the evidence Act is applicable to all communities.

The Marriage Register is a public document and therefore, under Section 8 of the Parsi Act, it is open to public inspection.

It may clearly and expressly be noted that Parsi Marriage Registrar is different and distinct from the Marriage Registrar under the Birth, Deaths and Marriages Registration Act, 1886 in as much as the Priest has to send a copy of Marriage Certificate to the (Parsi) Marriage Registrar of the place at which marriage was solemnized who, in turn, has to periodically send the copies of marriage registration to the Registrar General of Births, Deaths and Marriages of the State.

The Hon’ble Supreme Court of India did take notice of the fact that under the Parsi Marriage and Divorce Act, it is compulsory to have marriages registered, however, it is not so in other cases. While dealing with a non-registration of a Hindu Marriage, the apex Court held that though registration of marriage itself cannot be a proof of marriage per­se and would not be a determinative factor regarding validity of a marriage, yet it has great evidentiary value in family matters. If the record of marriage is kept, to a large extent, the dispute concerning marriage often is avoided. Discretion was given to file compliance report. Time for 3 months was extended from 25-10-07.