Revision as of 05:46, 18 November 2017

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.

Matrimonial suits

Amendments suggested by some Parsi women

Dhananjay Mahapatra, Parsi woman contests Raj-era personal law, November 17, 2017: The Times of India

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

See also

Uniform Civil Code: India

Intestate assets: India