The Parsi Marriage and Divorce Act, 1936

What it does

The Act is the codified marriage law of the Parsi community. It states what makes a Parsi marriage valid, including that it be solemnised by a priest in the presence of two Parsi witnesses and in the form of the ashirvad ceremony, and it sets the conditions on capacity, such as the age of the parties and the prohibited degrees of relationship. It provides for registration of the marriage.

It also provides for the end of a marriage. A marriage may be declared void or voidable on stated grounds, and it may be dissolved by divorce on grounds that include non-consummation owing to wilful refusal, adultery, desertion, cruelty, a spouse's unsoundness of mind, and conviction for a serious offence. Divorce by mutual consent is available after the marriage has lasted for a minimum period. The Act deals as well with the incidental relief a court may grant: maintenance for the wife, the husband, or both pending suit and permanently, and orders for the custody, maintenance and education of children.

Who it binds

Parsi Zoroastrians in India. Who counts as a Parsi for this purpose has itself been the subject of litigation, and the Act's special courts have jurisdiction over a Parsi marriage. A Parsi who marries under the Special Marriage Act, 1954 is outside it.

What has changed, and when

The Act has been amended, most notably by the Parsi Marriage and Divorce (Amendment) Act, 1988, which revised the grounds of divorce and replaced the older machinery in which delegates assisted the court. The Act now operates through the Parsi Chief Matrimonial Court and the Parsi Matrimonial Courts, with a High Court judge presiding over the Chief Matrimonial Court at the main Presidency towns. The 1936 Act is a separate and older statute than the Hindu Marriage Act, 1955, and its provisions differ on points of form and ground.

What turns on it in practice

The firm's note on matrimonial and child custody in India names the Act as the statute under which Parsis marry and divorce, among the many personal laws that India has. The first issue in a Parsi matrimonial matter is whether the Act applies at all, which depends on whether both parties are Parsi, how the marriage was solemnised and where the parties are domiciled. The second is the forum, since the Act sets up its own courts and does not leave the matter to the ordinary Family Court.

The custody of a child of a Parsi marriage is the point where the Act meets other laws. The firm's note observes that custody under Christian and Parsi law is largely governed by the Guardians and Wards Act, 1890, with the court exercising a broad discretion to determine the arrangement that serves the child's welfare. The note adds that no personal law provision is absolute, and that the welfare of the child supersedes statutory presumptions, customs and parental preferences.