Parsi Marriage and Divorce Act, 1936

(1) This Act may be called the Parsi Marriage and Divorce Act, 1936. (2) 2[It extends to the whole of India except the State of Jammu and Kashmir]: Provided that the Central Government may, in respect of 3[territories which, immediately before the 1st November, 1956, were comprised in Part B States] by notification in the Official Gazette, direct that the provisions of this Act relating to the constitution and powers of Parsi Matrimonial Courts and to appeals from the decisions and orders of such Courts shall apply with such modifications as may be specified in the notification: 4 [Providedfurther that nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry.] (3) It shall come into force on such date5 as the Central Government may, by notification in the Official Gazette, appoint.

In this Act, unless there is anything repugnant in the subject or context,- (1) "Chief Justice" includes senior Judge; (2) "Court" means a Court constituted under this Act; (3) to "desert" together with its grammatical variations and cognate expressions, means to desert the other party to a marriage without reasonable cause and without the consent, or against the will, of such party; (4) "grievous hurt" means- (a) emasculation; (b) permanent privation of the sight of either eye; (c) permanent privation of the hearing of either ear; (d) privation of any member or joint; (e) destruction or permanent impairing of the powers of any member or joint; (f) permanent disfiguration of the head or face; or (g) any hurt which endangers life; (5) "husband" means a Parsi husband; (6) "marriage" means a marriage between Parsis whether contracted before or after the commencement of this Act; (7) a "Parsi" means a Parsi Zoroastrian; (8) "priest" means a Parsi priest and includes Dastur and Mobed; and (9) "wife" means a Parsi wife.

6 [(1)] No marriage shall be valid if- (a) the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I; or (b) such marriage is not solemnized according to the Parsi form of ceremony called "Ashirvad" by a priest in the presence of two Parsi witnesses other than such priest; or 7 [(c) in the case of any Parsi (whether such Parsi has changed his or her religion or domicile or not) who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.] 8 [(2) Notwithstanding that a marriage is invalid under any of the provisions of sub-section (1), any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate.]

(1) No Parsi (whether such Parsi has changed his or her religion or domicile or not) shall contract any marriage under this Act or any other law in the lifetime of his or her wife or husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolved, and, if the marriage was contracted with such wife or husband under the Parsi Marriage and Divorce Act,18659, or under this Act, except after a divorce, declaration or dissolution as aforesaid under either of the said Acts. (2) Every marriage contracted contrary to the provisions of sub-section (1) shall be void.

Every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or husband, or without his or her marriage with such wife or husband having legally been declared null and void or dissolved, shall be subject to the   penalties provided in sections 494 and 495 of the Indian Penal Code for the offence of marrying again during the lifetime of a husband or wife.

Every marriage contracted under this Act shall, immediately on the solemnization thereof, be certified by the officiating priest in the form contained in Schedule II. The certificate shall be signed by the said priest, the contracting parties10[***] and two witnesses present at the marriage; and the said priest shall thereupon send such certificate together with a fee of two rupees to be paid by the husband to the Registrar of the place at which such marriage is solemnized. The Registrar on receipt of the certificate and fee shall enter the certificate in a register to be kept by him for that purpose and shall be entitled to retain the fee.

For the purposes of this Act a Registrar shall be appointed. Within the local limits of the ordinary civil jurisdiction of a High Court, the Registrar shall be appointed by the Chief Justice of such Court and without such limits, by the State Government. Every Registrar so appointed may be removed by the Chief Justice or State Government appointing him.

The register of marriages mentioned in section 6 shall, at all reasonable times, be open for inspection, and certified extracts there from shall, on application, be given by the Registrar on payment to him by the applicant of two rupees for each such extract. Every such register shall be evidence of the truth of the statements therein contained.

Births, Deaths and Marriages Every Registrar, except the Registrar appointed by the Chief Justice of the High Court of Judicature at Bombay, shall, at such intervals as the State Government by which he was appointed from time to time directs, send to the Registrar-General of Births, Deaths and Marriages for the territories administered by such State Government a true copy certified by him in such form as such State Government from time to time prescribes, of all certificates entered by him in the said register of marriages since the last of such intervals.

When a Court passes a decree for divorce, nullity or dissolution, the Court shall send a copy of the decree for registration to the Registrar of Marriages within its jurisdiction appointed under section 7; the Registrar shall enter the same in a register to be kept by him for the purpose, and the provisions of Part II applicable to the Registrars and registers of marriages shall be applicable, so far as may be, to the Registrars and registers of divorces and decrees of nullity and dissolution.

Any priest knowingly and willfully solemnizing any marriage contrary to and in violation of section 4 shall, on conviction thereof, be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two hundred rupees, or with both.

section 6 Any priest neglecting to comply with any of the requisitions affecting him contained in section 6 shall, on conviction thereof, be punished for every such offence with simple imprisonment for a term which may extend to three months, or with fine which may extend to one hundred rupees, or with both.

certificate Every other person recurred by section 6 to subscribe or attest the said certificate who shall willfully omit or neglect so to do, shall, on conviction thereof, be punished for every such offence with a fine not exceeding one hundred rupees.

Every person making or signing or attesting any such certificate containing a statement which is false, and which he either knows or believes to be false, shall be punished with simple imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees, or with both: and if the act amounts to forgery as defined in the Indian Penal Code then such person shall also be liable, on conviction thereof, to the penalties provided in section 466 of the said Code.

Any Registrar failing to enter the said certificate pursuant to section 6 shall be punished with simple imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

Any person secreting, destroying, or dishonestly or fraudulently altering the said register in any part thereof shall be punished with imprisonment of either description as defined in the Indian Penal Code for a term which may extend to two years or if he be a Registrar for a term which may extend to five years and shall also be liable to fine which may extend to five hundred rupees.

No marriage contracted under this Act shall be deemed to be invalid solely by reason of the fact that it was not certified under section 6, or that the certificate was not sent to the Registrar, or that the certificate was defective, irregular or incorrect.

For the purpose of hearing suits under this Act, a Special Court shall be constituted in each of the Presidency-towns of Calcutta, Madras and Bombay, and in such other places in the territories of the several State Governments as such Governments respectively shall think fit.

The Court so constituted in each of the Presidency-towns shall be entitled the Parsi Chief Matrimonial Court of Calcutta, Madras or Bombay, as the case may be. The local limits of the jurisdiction of a Parsi Matrimonial Court shall be coterminous with the local limits of the ordinary original civil jurisdiction of the High Court. The Chief Justice of the High Court, or such other Judge of the same Court as the Chief Justice shall from time to time appoint, shall be the Judge of such Matrimonial Court, and, in the trial of cases under this Act., he shall be aided 11[by five delegates, except in regard to- (a) interlocutory applications and proceedings; (b) alimony and maintenance, both permanent as well as pendente lite; (c) custody, maintenance and education of children; and (d) all matters and proceedings other than the regular hearing of cases.]

Every Court so constituted at a place other than a Presidency-town shall be entitled the Parsi District Matrimonial Court of such place. Subject to the provisions contained in section 21, the local limits of the jurisdiction of such Court shall be coterminous with the limits of the district in which it is held. The Judge of the principal Court of original civil jurisdiction at such place shall be the Judge of such Matrimonial Court, and in the trial of cases under this Act he shall be aided 11[by five delegates, except in regard to- (a) interlocutory applications and proceedings; (b) alimony and maintenance, both permanent as well as pendente lite; (c) custody, maintenance and education of children; and (d) all matters and proceedings other than the regular hearing of cases.]

Courts The State Government may from time to time alter the local limits of the jurisdictions of any Parsi District Matrimonial Court, and may include within such limits any number of districts under its government.

Any district which the State Government, on account of the fewness of its Parsi inhabitants, shall deem it inexpedient to include within the jurisdiction of any District Matrimonial Court, shall be includes within the jurisdiction of the Parsi Chief Matrimonial Court for the territories under such State Government where there is such a Court,

A seal shall be made for every Court constituted under this Act, and all decrees and orders and copies of decrees and orders of such Court shall be sealed with such seal, which shall be kept in the custody of the presiding Judge.

(1) The State Governments shall, in the Presidency-towns and districts subject to their respective Governments, respectively appoint persons to be delegates to aid in the adjudication of cases arising under this Act, after giving the local Parsis an opportunity of expressing their opinion in such manner as the respective Governments may think fit. (2) The persons so appointed shall be Parsis, their names shall be published in the Official Gazette and their number shall, within the local limits of the ordinary original. civil jurisdiction of a High Court, be not more than thirty, and in districts beyond such limits, not more than twenty.

The appointment of a delegate shall be for ten years; but he shall be eligible for reappointment for the like term or terms. Whenever a delegate shall die, or have completed his term of office, or be desirous of relinquishing his office, or refuse or become incapable or unfit to act, or cease to be a Parsi, or be convicted of an offence under the Indian Penal Code or other law for the time being in force 12[involving moral turpitude], or be adjudged insolvent, then and so often the State Government may appoint any person being a Parsi to be a delegate in his stead; and the name of the person so appointed shall be published in the Official Gazette.

All delegates appointed under this Act shall be considered to be public servants within the meaning of the Indian Penal Code.

from those appointed under section 24 The delegates selected under sections 19 and 20 to aid in the adjudication. of suits under this Act, shall be taken under the orders of the presiding Judge of the Court in due rotation from the delegates appointed by the State Government under section 24; Provided that each party to the suit may, without cause assigned, challenge any 13[two] of the delegates attending the Court before such delegates are selected and no delegate so challenged shall be selected.

All legal practitioners entitled to practice in a High Court shall be entitled to practice in any Court constituted under this Act, and all legal practitioners entitled to practice in a District Court shall be entitled to practice in any Parsi District Matrimonial Court constituted under this Act.

(1) All suits instituted under this Act shall be brought in the Court within the limits of whose jurisdiction the defendant resides at the time of the institution of the suit 14[or where the marriage under this Act was solemnized]. (2) When the defendant shall at such time have left 15[the territories to which this Act extends] such suit shall be brought in the Court at the place where the plaintiff and defendant last resided together. (3) In any case, whether the defendant resides in 12[the territories to which this Act extends] or not, such suit may be brought in the Court at the place where the plaintiff resides or at the place where the plaintiff and the defendant last resided together, if such Court, after recording its reasons in writing, grants leave so to do.

In any case in which consummation of the marriage is from natural causes impossible, such marriage may, at the instance of either party thereto, be declared to be null and void.

If a husband or wife shall have been continually absent from his or her wife or husband for the space of seven years, and shall not have been heard of as being alive within that time by those persons who would have naturally heard of him or her, had he or she been alive, the marriage of such husband or wife may, at the instance of either party thereto, be dissolved.

Any married person may sue for divorce on any one or more of the following grounds, namely:- (a) that the marriage has not been consummated within one year after its solemnization owing to the willful refusal of the defendant to consummate it; (b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit: Provided that divorce shall not be granted on this ground, unless the plaintiff (1) was ignorant of the fact at the time of the marriage, and (2) has filed the suit within three years form the date of the marriage; 12 (bb) that the defendant has been incurably of unsound mind for a -period of two years or upwards immediately preceding the filing of the suit or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the plaintiff cannot reasonably be expected to live with the defendant. Explanation.- In this clause,- (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia, (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the defendant, and whether or not it requires or is susceptible to medical treatment;] (c) that the defendant was at the time of marriage pregnant by some person other than the plaintiff: Provided that divorce shall not be granted on this ground, unless (1) the plaintiff was at the time of the marriage ignorant of the fact alleged, (2) the suit has been filed within two years of the date of marriage, and (3) marital intercourse has not taken place after the plaintiff came to know of the fact; (d) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence: Provided that divorce shall not be granted on this ground, if the suit has been filed more than two years after the plaintiff came to know of the fact; 12 [(dd) that the defendant has since the solemnization of the marriage treated the plaintiff with cruelty or has behaved in such a way as to render it in the judgment of the Court improper to compel the plaintiff to live with the defendant: Provided that in every suit for divorce on this ground it shall be in the discretion of the Court whether it should grant a decree for divorce or for judicial separation only;] (e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to submit herself to prostitution; Provided that divorce shall not be granted on this ground, if the suit has been filed more than two years (i) after the infliction of the grievous hurt, or (ii) after the plaintiff came to know of the infection, or (iii) after the last act of compulsory prostitution. (f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code: Provided that divorce shall not be granted on this ground, unless the defendant has prior to the filing of the suit undergone at least one year's imprisonment out of the said period; (g) that the defendant has deserted the plaintiff for at least 2[two years]; (h) that 17[***] an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had Marital intercourse for 16[one year] or more since such decree or order; 18 [***] (i) that the defendant has ceased to be a Parsi 12[by conversion to another religion]: Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact.

In every such suit for divorce on the ground of adultery, the plaintiff shall, unless the Court shall otherwise order, make the person with whom the adultery is alleged to have been committed a co-defendant, and in any such suit by the husband the Court may order the adulterer to pay the whole or any part of the costs of the proceedings.

Any married person may sue for judicial separation on any of the grounds for which such person could have filed a suit for divorce, 17 [***]

In any suit under section 30, 31, 32 12[32A] or 34, whether defended or not, if the Court be satisfied that any of the grounds set forth in those sections for granting relief exist that none of the grounds therein set forth for withholding relief exist and that- (a) the act or omission set forth. in the plaint has not been condoned; (b) the husband and wife are not colluding together; (c) the plaintiff has not connived at or been accessory to the said act or omission; (d) (save where a definite period of limitation is provided by this Act) there has been no unnecessary or improper delay in instituting the suit; and (e) there is no other legal ground why relief should not be granted; then and in such case. but not otherwise, the Court shall decree such relief accordingly.

Where a husband shall have deserted or without lawful cause ceased to cohabit with his wife, or where a wife shall have deserted or without lawful cause ceased to cohabit with her husband, the party so deserted or with whom cohabitation shall have so ceased may sue for the restitution of his or her conjugal rights and the Court, if satisfied of the truth of the allegations contained in the plaint, and that there is no just ground why relief should not be granted, may proceed to decree such restitution of conjugal rights accordingly.

In any suit under this Act, the defendant may make a counterclaim for any relief he or she may be entitled to under this Act.

Notwithstanding anything contained in any other law for the time being in force, no document shall be inadmissible in evidence in any proceeding at the trial of a suit under this Act on the ground that it is not duly stamped or registered.]

Where in any suit under this Act, it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the suit, it may, on the application of the wife or the husband order the defendant to pay to the plaintiff the expenses of the suit,. and such weekly or monthly sum, during the suit as, having regard to the plaintiffs own income and the income of the defendant, it may seem to the Court to be reasonable.

(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an application made to it for the purpose by either the wife or the husband, order that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff as having regard to the defendant's own income and other property, if any, the income and other property of the plaintiff, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the movable or immovable property of the defendant. (2) The Court if it is satisfied that there is change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just. (3) The Court if it is satisfied that the partly in whose favor, an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he had sexual intercourse with any woman outside wedlock, it may, at the instance of the other party, vary, modify or rescind any such order in such manner as the Court may deem just.]

In all cases in which the Court shall make any decree or order for alimony it. may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court 12[or to a guardian appointed by the Court] and may impose any terms or restrictions which to the Court may seem expedient, and may from time to time appoint a new trustee 12[or guardian], if for any reason it, shall appear to the Court expedient so to do.

In any suit under this Act the Court may make such provisions in the final decree as it may deem just and proper with respect to property presented at or about the time of marriage which may belong jointly to both the husband and wife.

published (1) Every suit filed under this Act shall be tried in camera and it shall not be lawful for any person to print or publish any matter in relation to any such case except a judgment of the Court printed or published with the previous permission of the Court. (2) If any, person prints or publishes any matter in contravention of the provisions contained in sub-section, (1), he shall be punishable with fine which may extend to one thousand rupees.]

Notwithstanding anything contained in section 19 or section 20, where in the case of a trial in a Parsi Matrimonial Court not less than 22[three] delegates have attended throughout the proceedings, the trial shall not be invalid by reason of the absence during any part thereof of the other delegates.

under the Act The provisions of the Code of Civil Procedure, 1908, shall, so far as the same may be applicable, apply to proceedings in suits instituted under this Act including proceedings in execution and orders subsequent to decree: 14 [Provided that the presiding Judge shall read out to the delegates the relevant sections of this Act, and may, if he consider it necessary so to do, explain the same: Provided further that a verbatim record shall be made of what the presiding Judge reads out or explains to the delegates.]

fact In suits under this Act all questions of law and procedure shall be determined by the presiding Judge; but the decision on the facts shall be the decision of the majority of the delegates before whom the case is tried: Provided that, where such delegates are equally divided in opinion, the decision on the facts shall be the decision of the presiding Judge.

23 [(1)] An appeal shall lie to the High Court from- (a) the decision of any Court established under this Act, whether a Chief Matrimonial Court or District Matrimonial Court, on the ground of the decision being contrary to some law or usage having the force of law, or of a substantial error or defect in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits, and on no other ground; and (b) the granting of leave by any such Court under sub-section (3) of section 29: Provided that such appeal shall be instituted within three calendar months after the decision appealed from shall have been pronounced. 12 [(2) Every appeal under sub-section (1) shall be heard by a Bench of two Judges of the High Court.]

to parties to marry again When the time 24[***] limited for appealing against any decree granting a divorce or annulling or dissolving a marriage shall have expired, and no appeal shall have been presented against such decree, or when any such appeal shall have been dismissed, or when in the result of any appeal a divorce has been granted or a marriage has been declared to be annulled or dissolved, but not sooner, it shall be lawful for the respective parties thereto to marry again, 17[***].

In any suit under this Act, the Court may from time to time pass such interim orders and make such provisions in the final decree as it may deem just and proper with respect to the custody, maintenance and education of the children under the age of 25[eighteen years], the marriage of whose parents is the subject of such suit, and may, after the final decree upon application, by petition for this purpose, make, revoke, suspend or vary from time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such final decree or by interim orders in case the suit for obtaining such decree were still pending.

In any case in which the Court shall pronounce a decree of divorce or judicial separation for adultery of the wife, if it shall be made to appear to the Court that the wife is entitled to any property either in possession or reversion, the Court may order such settlement as it shall think reasonable to be made of any part of such property, not exceeding one half thereof, for the benefit of the children of the marriage or any of them.

The High Court shall have superintendence over all Courts constituted under this Act subject, to its appellate jurisdiction in the same manner as it has over other Courts under 26[article 227 of the Constitution], and all the provisions of 27[that article] shall apply to such Courts.

(1) The provisions of this Act shall apply to all suits to which the same are applicable whether the circumstances relied on occurred before or after the passing of this Act, and whether any decree or order referred to was passed under this Act or under the law in force before the passing of this Act, and where any proceedings are pending in any Court at the time of the commencement of this Act, the Court shall allow such amendment of the pleadings as may be necessary as 'the result of the coming into operation of this Act. (2) A Parsi who has contracted a marriage under the Parsi Marriage and Divorce Act, 18659, or under this Act, even though such Parsi may change his or her religion or domicile, so long as his or her wife or husband is alive and so long as such Parsi has not been lawfully divorced from such wife or husband or such marriage has not lawfully been declared null and void or dissolved under the decree of a competent Court, under either of the said Acts, shall remain bound by the provisions of this Act

[53. Repeal- Repealed by the Repealing and Amending Act, 1937]