Parsi customs, laws
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The evolution of Parsi personal laws
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Mitra Sharafi, Many think Parsis are a model minority. Are they?, Sep 20, 2017: The Times of India
The writer is associate professor at the University of WisconsinMadison and author of Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947
Parsi men have always written the rules, which discriminate against women. But as a dwindling minority group, Parsis will resist the bulldozing of their cultural norms
Debates over the Uniform Civil Code usually zero in on one kind of personal law: Muslim matrimonial law. What gets less airtime is Parsi matrimonial law. We assume that it lacks the gender asymmetries of Muslim personal law. There is a long history of Parsis being held up as a model minority, by implied contrast with Muslims. This narrative was at its heyday under British rule. It is enjoying a revival in Modi's India.
Contrary to the “model minority“ stereotype, though, the history of Parsi matrimonial law does not reveal a smooth march to ward women's equality . Reforms in Parsi personal law that were good for women were celebrated loudly , providing maximum po litical mileage with the British pre-1947. But changes that were bad for wives were not adver tised.
Take the prohibition of Parsi polygamy in 1865. In the 1850s and 60s, elite male Parsis in Bombay drafted the text of what would become Parsi personal law, including the Parsi Marriage and Divorce Act of 1865. The centrepiece of this statute was the invalidation of polygamous Parsi marriages.
Parsi elites made a lot of the fact that their own community had initiated this reform. The honorary secretary of the Parsi Law Association that drafted the statute, S. S. Bengalee, declared that the Parsis were Asia's most civilised people for voluntarily giving up polygamy . Sixty years later, a Parsi lawyer named C. F . G. Chinoy called the statute “the Magna Carta of the rights and privileges of woman.“
These celebratory accounts failed to mention that another male privilege -the right to have sex with prostitutes -was stealthily protected in the 1865 Act. Under English law, adultery by a husband was defined as the act of sexual intercourse with any woman not his wife, including a prostitute. In the Parsi Act, the definition of adultery excluded sex with prostitutes. For the next seven decades, Parsi wives could not prove that their husbands had been adulterous if the men had sex with prostitutes.
The prostitution exception was eliminated in the 1930s, when the Parsi Marriage and Divorce Act of 1936 became law. This reform was celebrated for its gender equality, as was the statute's creation of uniform grounds for divorce between husbands and wives.
As in 1865, though, the new statute smuggled in another change that was bad for women. While Parsi men gave up their right to have sex with pros titutes in the 1936 statute, they fortified their right to beat their wives.
Under the 1936 Act, one Parsi spouse could file for divorce if she suffered from “grievous hurt“ inflicted by the other. The 1865 Act had been vague on domestic violence, and Parsi draftsmen in the 1930s took the opportunity to clarify . What ensued was the most precise and public discussion of Parsi matrimonial violence of the colonial period, and possibly ever. Early versions of the 1936 bill had imported the Indian Penal Code's definition of grievous hurt. Had this text been adopted, a criminal conviction for grievous hurt could have served as the basis for a divorce suit. But organisations like the Dadar-Matunga Zoroastrian Association, the Zoroastrian Brotherhood, and the Grant Road Parsi Association objected.As the Parsi newspaper, Jam-eJamshed, put it: “Having experience as worldly men, that husbands are rather too free with their hands...would it be safe to dissolve marriage at every violent quarrel between a husband and wife?“ These voices prevailed. The fracture or dislocation of a bone or tooth would not constitute grievous harm in Parsi matrimonial law, although it would continue to be a crime. Any injury that caused the wife to be in “severe bodily pain“ for twenty days or unable to follow her ordinary pursuits would also not constitute a ground for divorce. The message was clear: forms of violence that constituted criminal offences were not serious enough to be part of Parsi wives' divorce suits.
The characterisation of Parsi matrimonial law as a model personal law overlooks the troubling tradeoffs made in Parsi legal history . Some products of this history , like the matrimonial definition of grievous hurt, remain with us today. Conversations about the UCC should look beyond Muslim matrimonial law to consider the fraught history of other bodies of personal law, too.
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Homiar Nariman Vakil, Why Parsis need their distinct family laws, Sep 20, 2017: The Times of India
The writer is partner of the law firm Mulla & Mulla & Craigie Blunt & Caroe
Parsis are what they are because they are ethnically exclusive.
They are a tiny community , whose ancestors came to India due to religious persecutions in Persia (Iran).Their numbers are down to a critical 61,000 and diminishing by the day. India's population increases by 21% and the Parsi population declines by 12% every census decade.
Prior to 1837, the English common law applied to Parsis and their proper ties, subject to certain exceptions as to marriage and bigamy. There are special rules for Parsi intestate provided under Sections 50 to 56 of the Indian Succession Act, 1925. They are also governed by the Parsi Marriage and Divorce Act, 1936. Parsi Chief Matrimonial Courts are established as special courts in each of the presidential towns of Calcutta, Madras and Bombay . In con tested matrimonial matters, special delegates are appointed, who are usually respected members of the small community .
Parsi Zoroastrians have been given preferential treatment in foreign countries especially India. If Uniform Civil Code is enforced all the protection given to a tiny community like Parsis will be abolished, the age old Privy Council judgements will hold no good.
There is no legal adoption amongst Parsis and therefore if a Parsi couple decides to adopt a child, she or he would not enjoy automatic rights of inheritance.
Who can be a member of a particular religious denomination, or who can have a right to insist on being a member and be entitled to the use of religious institutions, is determined by the personal law of that denomination, which in turn is based on the precepts, beliefs and tenets of the religion.
Article 25 (1) of the Constitution of India provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion, this is subject to public order, morality and health. It is also subject to Article 26 (b), which provides that every religious denomination shall have the right “to manage its own affairs in matters of religion“.Article 44 states the Directive Principle that the State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.However, it has not been implemented till date.
The children of a Parsi Zoroastrian man who married outside the community can become a Parsi, but not the children of a Parsi woman married to a non-Parsi. Some women in the community have questioned this and taken the matter to courts. R. D. Tata had married a French woman who had embraced the Zoroastrian religion and had a Novjote ceremony. He pleaded that this meant she could enter an Agyari and be consigned to the Tower of Silence after her death. However, there was an uproar from orthodox Parsis, and the high court then ruled in their favour. Parsis, being one of India's most progressive communities, are used to this conflict between liberal and orthodox viewpoints. The enforcement of a Uniform Civil Code will not be easy with most communities, especially in a secular country like India.
The transition from personal laws to Uniform Civil Code should be an evolutionary process, which preserves India's rich heritage. Sensitisation efforts are needed to reform the current personal laws, which should be first initiated by communities themselves. The energy should be focused not on fighting the old, but on building a new code that preserves the rich cultural heritage of small communities like Parsis, Christians and countless others in India.
Attending rituals
Goolrukh, Shiraz vs. Anjuman Parsi trust, Valsad
How two Parsi sisters waged an 8-year fight for last rites, December 24, 2017: The Times of India
Goolrukh Gupta and her sister Shiraz Patodia have won Parsi women who marry ‘outsiders’ the right to enter fire temples, but the battle for parity is just beginning
Goolrukh Gupta, born Parsi, remains as Parsi as she chooses to be. She has been the determined face of a battle for a woman’s right to religion. By her side in the fight is her sister and lawyer Shiraz Patodia. Ranged against them was the Anjuman Parsi trust of Valsad, Gujarat, which insisted that a woman who married out was no longer welcome in the sacred precincts of the community.
The trust has now backed off, after the sisters went to the Supreme Court and won the right to enter the fire temple and attend funerary ceremonies. In the process, Parsi women, and women everywhere, have got some acknowledgement of their rights.
Both women, now in their fifties, moved out of Valsad when they were in their teens. They went to college in Mumbai, and met and married non-Parsi men under the Special Marriage Act, decades ago. Their Marwari husbands, their children, and their parents are all comfortably mingled together, says Gupta. Their homes are culturally more Parsi than Hindu, because the women carry on the habits of their families.
“There are only 60,000 of us in the community. If everyone had to marry a Parsi, two-thirds of the women wouldn’t be married,” says Patodia. Their parents, Dinaz and Adi Contractor, were pillars of the Parsi community in Valsad, and had a love marriage themselves. “My father was once a trustee of the Parsi trust, and my maternal uncle a president of it,” says Gupta. When her uncle died, Gupta was part of the ceremonies.
But things changed when the composition of the trust changed. New members replaced the old, and brought back a hidebound code where women were worth less than men, where a woman who stepped out of the Parsi fold would forfeit all her rights.
In 2008, she watched in horror as a friend, who had also married a non-Parsi, was harshly evicted from the Tower of Silence. The panchayat denied her request for a change in rules. In January 2010, she filed a case in the Gujarat high court against the Valsad Parsi panchayat, fighting for the right to enter the fire temple and, when the time comes, to perform the traditional funeral rites for her parents. In 2012, the Gujarat high court ruled that a woman’s identity merges with her husband’s after marriage, that it is effectively a religious conversion. So she ceases to be Zoroastrian, and has no rights in the community, according to the Gujarat HC.
But the Special Marriage Act, 1954, is meant precisely for both spouses to retain their identities and not have to convert, points out Patodia. “We are born to Zoroastrian parents. Our DNA doesn’t change because we got married,” she says.
It’s a view the Supreme Court endorsed while hearing their petition, and passing an order in their favour on December 14. Their case was bolstered by affidavits from Parsi trusts across the country — Delhi, Mumbai, Kanpur, Kolkata — all of which allow women access. “It’s just about the whims and fancies of this particular trust,” says Patodia.
During British rule, Parsis were considered a model minority, progressive and modern. For all the virtues of Parsi personal law though, it considers women vessels of the community rather than full individuals — the children of a man who marries out of the community is considered Parsi, but not those of a woman like Gupta. RD Tata, who had married a French woman who had embraced the religion and had a navjote ceremony, had petitioned for her right to enter the temple and be buried in the Tower of Silence.
Where they failed, Goolrukh Gupta has won. Gupta and Patodia have won the right to participate in the cultural life of their community, but the deck is stacked against Parsi women in worse ways.
Kolkata-based Prochy Mehta is fighting for the rights of her grandchildren (born of a non-Parsi father) to enter the fire temple. Another fraught issue is that a woman marrying out loses all right to community property.
“It could be that the Parsi trust is stonewalling now, refusing their demands about the fire temple and Tower of Silence because they fear a greater challenge on the property front,” says Patodia.
“I’ve had people take pictures with us, because we’re a near-extinct species,” laughs Gupta. Her daughter, a lawyer, is passionately invested in her struggle. “I see my children responding angrily to every orthodox voice, and I say, why bother, you’re not going to change some old person’s mind. They’re set in their ways.”
All she wants is for their set ways not to deny her due.
Parsi women wed to non-Parsi can attend last rites/ Valsad Parsi Panchayat
December 14, 2017: The Times of India
2 Parsi women wed to non-Parsis can attend last rites at 'tower of silence', says Valsad Parsi Panchayat
HIGHLIGHTS
The radical decision was prompted by the Supreme Court urging the Parsi community to take a more "progressive" stand on the issue
The Parsi panchayat at Valsad had earlier denied such permission
A Parsi woman, Goolrokh M Gupta, had moved the Supreme Court on the issue
Upon the urging of the Supreme Court (SC), the Valsad Parsi Panchayat decided to allow two Parsi women married outside the community to attend prayers in the fire temple as well as be present for the last rites of their loved ones in the 'tower of silence'.
The radical decision was prompted by the Supreme Court urging the Parsi community to take a more "progressive" stand on the issue. The Supreme Court last week disagreed with an earlier Bombay high court ruling that a woman's religion merges with her husband's faith after marriage.
A Parsi woman, Goolrokh M Gupta, represented by her sister Shiraz Contractor Patodia, had moved the Supreme Court on the issue.
The Parsi panchayat at Valsad had earlier denied such permission to the two women who are married outside the community. The 'tower of silence' is where the community leaves their dead to decompose naturally.
Appearing for the Parsi panchayat today, senior advocate Gopal Subramanium informed the apex court about the decision. Subramanium said the high priest of the Parsi community was consulted by the Panchayat after which the radical decision was taken and communicated today to the court.
Goolrokh had earlier moved the Bombay high court on the issue. That court upheld the ban on women in the 'tower of silence' if they were married outside the community. Goolrokh then moved the SC, seeking the right to enter the 'tower of silence' to perform her parents' last rites in the event of their death. She said she was worried because her parents are both 84 years of age.
A five-judge constitution bench headed by Chief Justice Dipak Misra is hearing the case.
Parsis usually have a panchayat, or a committee of five, govern their affairs. Valsad is a district in Udavada in Gujarat.
Judiciary on Parsi marriages
Married woman's (religious) identity retains: HC
Krishnadas Rajagopal, December 8, 2017: The Hindu
A woman does not mortgage herself to a man by marrying him and she retains her identity, including her religious identity, even after she exercises her right to marry outside her community under the Special Marriage Act, Chief Justice of India Dipak Misra orally observed while heading a five-judge Constitution Bench.
The Special Marriage Act of 1954 is seen as a statutory alternative for couples who choose to retain their identity in an inter-religious marriage.
“Special Marriage Act confers in her the right of choice. Her choice is sacred. I ask myself a question: Who can take away the religious identity of a woman? The answer is only a woman can choose to curtail her own identity,” Chief Justice Misra said on the first day of hearing of a petition filed by a Parsi, who was barred by her community from offering prayers to her dead in the Tower of Silence for the sole reason that she married a Hindu under the Special Marriage Act.
Nobody could presume that a woman has changed her faith or religion just because she chose to change her name after marrying outside her community, the Chief Justice observed.
The Bench, also comprising Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, is deciding the question whether a Parsi woman can keep her religious identity intact after choosing to marry someone from another faith under the 1954 Act.
The very fact that petitioner Goolrookh M. Gupta, married under the Special Marriage Act, did not choose to convert showed that she had intended to retain her religious identity as a Zorastrian. A decision in favour of the woman would uphold the fundamental right to religion, dignity and life and create a paradigm shift for women within the minority community.
(The court recently ruled in favour of Muslim women by striking down instant triple talaq as unconstitutional, and has now paved the way for a proposed legislation.)
Disagrees with widespread notion
The Bench, prima facie, disagreed with the widespread notion in common law that a woman’s religious identity merges with that of her husband after marriage.
Indicating that this amounted to discrimination on the ground of gender, Chief Justice Misra asked, “How can you [Parsi elders] distinguish between a man and woman singularly by a biological phenomenon… If a woman says she has not changed her religion, by what philosophy do you say that she cannot go to the Tower of Silence? No law debars a woman from retaining her religious identity.”
Justice Sikri observed, “If a woman’s identity is merged, then Special Marriage Act is not required, is it not.”
Chief Justice Misra said, “The Tower of Silence is not a mutt or a citadel of a cult. It is a place to offer prayers to the dead. Can such a right of a woman be guillotined? It is part of her constitutional identity.”
The court said it had to decide whether a religious principle had dominance over the constitutional identity of a Parsi woman.
Arguing for the petitioner, senior advocate Indira Jaising submitted that every custom, usage, customary and statutory laws had to stand the test of the Fundamental Rights principle. Article 372 (continuance of existing laws) of the Constitution was subject to Article 13, which mandated that laws should not violate the fundamental rights of an individual.
Petition against HC judgement
The petition is against the Gujarat High Court’s March 23, 2012 judgment, which held that Ms. Goolrokh Adi Contractor ceased to be a Parsi as she had married Mahipal Gupta, a Hindu, under the provisions of the Special Marriage Act.
The Valsad Parsi Anjuman Trust, which opposed Ms. Gupta’s plea, said the High Court decided the case after going through the affidavits of at least seven Parsi priests that said the religious tenets held that she ceased to be a Zorastrian upon her marriage to a Hindu and cannot be allowed to offer prayers in a Zorastrian place of worship.
Ms. Jaising argued that the fundamental right enshrined in Article 14 of the Constitution guaranteed equality before the law and the equal protection of the laws. It prohibited discrimination on grounds of religion, race, caste, sex or place of birth. “Anything arbitrary violates the rule of law,” she submitted.
Denying a woman respect and the right to observe her religion merely because she married outside her faith was violative of her fundamental right to religion enshrined under Article 25 of the Constitution.
Ms. Jaising said there was a difference of opinion on the issue within the Parsi community itself. While some pockets allowed women who chose inter-religious wedlock into the Tower of Silence, others did not.
Ms. Jaising argued that the ‘doctrine of coverture’, which held that a woman lost her identity and legal right with marriage, was violative of her fundamental rights. The doctrine is not recognised by the Constitution.
The court asked the Valsad Parsi Trust to inform by December 14 whether it would allow Ms. Goolrokh to attend the last rites of her parents.
Jury system
The government’s stand in 2019
Dhananjay Mahapatra, Dec 18, 2019 Times of India
After enacting a law to make triple talaq a punishable offence, the Centre told the Supreme Court that jury system to adjudicate matrimonial disputes, including divorce and child custody, through a jury system needed to be retained for the Parsi community.
In response to a Parsi woman’s petition challenging several provisions of the Parsi Marriage and Divorce Act, 1936, the Centre opposed the petitioner’s claim for parity in the legal system between Hindus and Parsis in matters relating to matrimonial disputes, including divorce. Petitioner Naomi Sam Irani, through advocate Neela Gokhale, had said the 1936 Act was exasperatingly cumbersome, involving a system akin to jury decision and granted no access to mediation and settlement available to Hindu women under the family court system.
The Centre’s affidavit said the 1936 Act was a preconstitutional legislation and was considered to conform with the customs of the Parsi community. “When initiatives came from the board of trustees of Parsi Panchayat, Bombay, in 1986 in the form of proposals to amend the Act, the Minorities Commission had considered the said proposals and recommended the same to the government. Amendments were carried out in 1988 to make certain provisions of PMD Act similar to Hindu Marriage Act,” it said.
However, the Centre did not support Irani’s plea for divorce proceedings in family courts as was available to Hindus. “Parsi community is a special community forming part of Indian societal mosaic and it was felt necessary to protect their values, customs, beliefs and practices in the field of personal law. Parsi community, owing to their scarce numbers, also requires to be protected by way of separate mechanism. A special law (like PMD Act) for that small community, with an intelligibly different or unique structure, is permissible in law,” it said.
Irani had moved a Parsi matrimonial suit in 2016 before the Bombay high court seeking dissolution of her 11-year-old marriage, from which the couple has a 10-year-old son and an eightyear-old daughter. Section 18 of PMD Act provides for constitution of special courts in Kolkata, Chennai and Mumbai where the chief justice of the HC concerned would have jurisdiction to appoint a judge who would be aided by five delegates, who together would decide alimony, maintenance as well as custody and maintenance for children and their education.
Matrimonial suits
Amendments suggested by some Parsi women
Encouraged by Muslim women’s successful fight against triple talaq, a Parsi woman has moved the Supreme Court questioning the validity of many provisions of the Parsi Marriage and Divorce Act, alleging that these made estranged couples of her community go through a torturous exercise to get divorce.
Naomi Sam Irani had moved a Parsi matrimonial suit early last year before the Bombay high court seeking dissolution of her 11-year-old marriage, from which the couple has a 10-year-old son and an eight-year-old daughter.
Keeping aside the reasons for filing the divorce suit, Irani, through counsel Neela Gokhale, said the procedure under the 1938 personal law was exasperatingly cumbersome, involving a system akin to jury decision, and granted no access to mediation and settlement available to Hindu women under the family court system.
‘Parsi matrimonial court sits just twice a year’
She said though it was close to one and a half years since she had moved the HC for divorce, till date “there has been no appointment of delegates as contemplated under the PMDA to participate in the pending matrimonial proceedings, depriving the petitioner of speedy disposal of her case”.
Irani said Section 18 of PMDA provides for constitution of special courts in Kolkata, Chennai and Mumbai where the chief justice of the HC concerned would have jurisdiction to appoint a judge who would be aided by five delegates, which together would decide alimony, maintenance as well as custody and maintenanceof children and their education.
“These delegates... act like jury and the caseisdecidedby majority decision. Itis a fact that Parsi chief matrimonial court sits only once or twice a year... only for a short duration. In view of increase in divorce petitions, jury as a factfinding body practically impedes speedy justice,” Irani said and requested the SC to do away with the jury system.
“The jury delegates adjudicate a divorce petition based on their personal notion of societal norms, morality and ethics, which may not be in sync with the principles of natural justice and the ethos and dynamics of society,” Irani said and sought replacement of this system with the procedure provided under family courts, which attempts to provide speedy settlement through reconciliation.
She said PMDA demands that the divorce suit be filed before Parsi matrimonial courts, thus inconveniencing estranged couples who work away from the metropolitan cities. This went against the SC’s stand that matrimonial disputes be filed at the family court nearest to the woman’s residence, she said. “Thus, the fundamental right to life and liberty, which includes the right to speedy justice, isbeing deniedto a particular community...” Irani said.
Parsi matrimonial court sits only once or twice a year and that too for a short duration. The jury adjudicates a divorce petition based on personal notion of societal norms, morality and ethics, which may not be in sync with the principles of natural justice and ethos and dynamics of society.
— Naomi Sam Irani
