I. Introduction
One of the most interesting pre-independent enactments of the Indian legal system is the Parsi Marriage and Divorce Act, 1936 (hereinafter referred to as “the Act” or “the said Act” or “this Act” as the case may be). The said Act which came into force on 22-6-1936 was enacted to amend the law relating to marriage and divorce amongst Parsis, thereby repealing the Parsi Marriage and Divorce Act, 1865.[1] Subsequent amendments to the Act have been far and few.[2] However, the last major overhaul of the Act took place in 1988 when amendments to the Act were carried out based on the recommendations and suggestions of the Bombay Parsi Panchayat and the Minorities Commission.[3] The said amendments were mainly aimed at enlarging the scope of some of the provisions of the Act so as to bring them in line with the provisions of the Hindu Marriage Act, 1955.[4] Some of the amendments included fixing the minimum age of marriage [Section 3(c)], insertion of “cruelty” as an additional ground for divorce [Section 32(dd)], insertion of a new provision for divorce by mutual consent (Section 32-B), payment of permanent alimony and maintenance (Section 40), to name a few. Perhaps one of the most unique features of the Act is the manner in which the trials are conducted. The trial is not only presided over by a Judge, but it is also conducted in the presence of and with the aid of “five delegates” who function as a jury. The term “jury” is not used in the Act, but the functioning of the delegates is more or less akin to that of a jury. The jury system was abolished in all proceedings in India by 1960[5], except for proceedings under this Act. Though the merits and demerits of the jury system under the Act have been discussed in various forums, the purpose of this article is not to delve into the merits and demerits of the said system but it is to solely to confine itself to the method and procedure that is generally followed in appointing delegates under the Act. However, before proceeding to analyse the procedure, it would be necessary to understand the role and scope of the functions of the delegates under Act.
II. Role of the delegates and the scope of their functions under the Act
1. Under the Act, the Parsi Matrimonial Courts are “Special Courts”, constituted to hear suits.[6]As per Sections 19 and 20 of the Act, the trial of cases under these Special Courts viz. the Parsi Chief Matrimonial Courts (for the Presidency towns for Calcutta, Madras or Bombay) or the Parsi District Matrimonial Courts (for districts or areas other than the Presidency towns) shall be conducted by the presiding Judge with the aid of five delegates for “regular hearing of cases”.[7]The said sections precludes delegates from aiding the Judge in (a) interlocutory applications and proceedings; (b) alimony and maintenance matters, both permanent as well as pendente lite; (c) matters of custody, maintenance and education of children; and (d) all other matters and proceedings other than regular hearing of cases.
2. Though the term “regular hearing of cases” has not been defined in the Act, judicial pronouncements have interpreted the term to include those matters which are contested by the respective parties to the dispute.[8]These include matrimonial suits under Section 30 (suits for nullity), Section 32 (divorce), Section 36 (restitution of conjugal rights), etc. in which facts need to be proved. Apart from the exceptions mentioned in Sections 19 and 20, the Bombay High Court has held that in proceedings such as divorce by mutual consent under Section 32-B of the Act, delegates do not require to aid the Presiding Judge since the said proceedings are not contentious matters.[9]
3. The roles of the delegates and the Presiding Judge are finely divided. Section 46 of the Act clearly states that all questions of law and procedure shall be determined by the Presiding Judge but the decision on the facts of the case shall be made by a majority of the delegates before whom the case is tried, unless the delegates are equally divided in opinion, in which case the Presiding Judge will decide the facts. Decisions on facts are necessary only when they are contested or disputed by the parties and not otherwise. While the Judge decides questions of law and procedure, the verdict of the delegates on facts is final, against which no appeal lies.[10]The use of the word “aid” in Sections 19 and 20 have been interpreted to mean “only assist or help” and it cannot be understood to mean that the delegates will present the Judge with the final decision or decide the matter in its entirety.[11]Nevertheless, the undisputed conclusion drawn from the perusal of the scheme of the Act in its present form is that the aid and assistance of the delegates is sine qua non in contentious proceedings under the Act.
4. As per Section 27 of the Act[12], the delegates selected under Sections 19 and 20 shall be taken under the orders of the Presiding Judge of the court in due rotation from the delegates appointed under Section 24 by the State Government. The proviso of the section enables each party to the matrimonial dispute/suit to challenge, without assigning any reason, any two of the delegates attending the court before such delegates are selected and no delegate, so challenged can be selected.
III. Power and procedure for appointing delegates
1. The power to appoint delegates under the Act vests entirely with the State Government. As per Section 24 of the Act[13], it is the responsibility of the State Government to appoint delegates in the Presidency towns and the district of the State subject to their respective Governments, after giving the local Parsis “an opportunity of expressing their opinion in such manner as the respective Government may think fit”. As per sub-section (2) of the said section, only Parsis shall be appointed as delegates and the names of the persons so appointed are to be published in the Official Gazette. Not more than thirty Parsis are to be appointed within the local limits of the ordinary civil jurisdiction of a High Court and not more than twenty Parsis are to be appointed in a district.
2. One of the most striking features of the Act is that while the power to appoint delegates, vests with the State Government concerned, no method, or procedure is laid down in the Act for appointment of delegates. The absence of such a provision appears to be intentional, if one were to analyse the scheme of the entire Act as well as the Statement of Objects and Reasons of Amendment Act 5 of 1988.[14] It would be safe to assume that in the absence of any procedure laid down in the Act, the members of the Parsi community in a particular district or jurisdiction are left to their own devices and are free to choose the method and manner in which the delegates are to be appointed. This obviously does result in lack of uniformity and therefore, the procedure followed would differ from place to place. This very issue was analysed in great detail by the Hon’ble Bombay High Court in Delforooz Darius Dorabjee v. State of Maharashtra.[15]The details of the proceedings are as follows:
(a) The challenge
The petitioner wife had filed a petition for divorce against respondent husband in Pune. While the matrimonial proceedings were pending, the petitioner filed a writ petition in the Bombay High Court praying for a writ of certiorari to quash and set aside a Government Notification dated 10-2-2005 which had appointed 11 persons as delegates for the period of 10 years to aid in the adjudication of cases arising under the provisions of the Act, in the Parsi Matrimonial Court, at Pune.[16] One of the other prayers was for quashing and setting aside the order dated 13-7-2005 passed by the District Court, Pune as Parsi Matrimonial Court, whereby objection raised by the petitioners to the issuing of notice to delegates on the ground that petitioner was going to challenge the appointment of delegates who had been appointed vide Government Notification dated 10-2-2005 was rejected.[17]
(b) The petitioner’s contention
(i) It was the contention of the petitioner that the impugned notification nominating the delegates had been issued without following the procedure prescribed under Sections 24 and 25 of the Act.[18] According to the petitioner, the State Government should have followed the “normal procedure”, which would have been to request the Pune Parsi Panchayat in the local area to issue an advertisement in the newspaper calling upon them to recommend the names of suitable Parsis to fill the vacancies of the delegates, after which a request ought to have been made to the State Government to issue an advertisement in a widely circulated newspaper inviting names of persons desirous of standing for election for the said appointments.[19]
(ii) Persons desirous of standing as candidates are required to send their proposal in a prescribed form signed by the candidate, along with the signature of a proposer and a seconder. After the requisitions are received, the Pune Parsi Panchayat ought to have held an election for selecting the candidates and persons securing higher number of votes ought to have been recommended to the State Government for being nominated as candidates.[20] Before the election, the Pune Parsi Panchayat ought to have published a list of the contesting candidates by giving a public advertisement.[21] The petitioner had relied upon the procedure followed by the Bombay Parsi Panchayat, which according to the petitioner was not followed by the Pune Parsi Panchayat.[22]
(iii) According to the petitioner, the Pune Parsi Panchayat had merely issued a notice through its Chairman in a Parsi newspaper titled “Jam-e-Jamshed” merely inviting willing Parsis to act as delegates.[23] No public notice was given to the local Pune Parsis calling for the objections nor was any election held despite of the fact that 21 persons has responded to the public notice as potential candidates.[24] Further, the Jam-e-Jamshed being a Mumbai weekly Gujarati newspaper had insufficient circulation in Pune City.[25] After the advertisement was published, Pune Parsi Panchayat without following the procedure simply submitted 11 names to be appointed as delegates under the Act to the District Court, Pune who forwarded the same to the State Government.[26]
(c) Reasoning and findings of the Court
(i) The Hon’ble High Court acknowledged the fact that no rules or instructions have been issued under the Act laying down a procedure for appointment of delegates but stressed on the importance of giving the local Parsis an opportunity of expressing their opinion as contemplated by Section 24 of the Act.[27] The opportunity to express opinion forms the basis of the reasoning of the Court.
(ii) The Hon’ble High Court noted that the District Judge recommended the names of 11 delegates after consulting and holding a joint meeting with the local Parsis and applicants.[28] The procedure of consulting the Parsi community was exercised by the State Government through District and Sessions Judge, Pune. The Hon’ble High Court noted that the District Judge, being non-Parsi was not an interested person and therefore would exercise an unbiased and objective opinion.[29] According to the Hon’ble High Court, the very fact that the District Judge after consulting the Parsis recommended 11 names to the State Government and had also independently written to the State Government about the criminal record of one of the delegates would by itself indicate that the names were forwarded having due regard to the character and antecedents of the candidates.[30] This according the Hon’ble High Court would also show that the names were recommended after consulting the local Parsi Panchayat.[31] It is only thereafter that the State Government issued a notification appointing delegates.
(iii) Therefore, in the opinion of the Hon’ble High Court, “substantial compliance” had been made with respect to giving the local Parsi community an opportunity to express their opinion.[32] The Court further stated, “The mere fact that notice was published in Gujarati newspaper circulated from Mumbai, by itself would be of no consequence considering that the community is small and there were 20 applications.” Hence, in the Court’s opinion, the conditions laid down in Section 24 had been complied with.[33] The Court ultimately stated thus,
“5. … The mere fact that in Mumbai, a different procedure is followed, need not necessarily mean that the same procedure has to be followed in other districts also. The procedure set up in Mumbai is not pursuant to any provisions of the Act and or any Rules or instructions issued by the Government. There was therefore, no requirement that the Government should adopt or follow the procedure as followed in Mumbai. The main contention must therefore, be rejected.”[34]
(emphasis supplied)
3. Hence, the ultimate conclusion that one can derive from the reasoning of the Court is that as long as an opportunity is given to the local Parsi community to express their opinion in the process of appointment of delegates, the procedure followed need not necessary be uniform in its application and may differ from place to place. However, in the author’s opinion, the absence of statutory clarity could always encourage litigators to challenge procedures followed by relevant stakeholders, which could result in unnecessarily prolonging bitterly contested disputes such as matrimonial disputes. Thus a fluid procedure such as the procedure followed for appointment of delegates under the Act, would always be susceptible to challenge. In order to prevent such an eventuality, in the author’s opinion, the following steps are essentially required to be followed while appointing delegates under Sections 24 and 25 of the Act:
(a) Publication of an advertisement
The selection process ought to commence with publication of an advertisement by the Parsi Panchayat, or any other representative body of the Parsis of a particular locality, in a newspaper that is widely circulated within the locality of the residence of the Parsi community, requesting desirous members of the community to submit an application to the Parsi Panchayat or such representative body within a stipulated period of time. Since the numbers of the Parsi community are miniscule[35], the said advertisement could easily be communicated via social media applications such as WhatsApp or Facebook or any other web-based application. The aim is to make sure that a sufficient number of Parsis are made aware of such an advertisement. For the older generation of the community that isn’t “net-savvy”, a copy of the advertisement could also be affixed at public places, places of worship or other locations commonly frequented by the elder members of the community such as Fire Temples, Parsi Clubs, Parsi Societies, etc.
(b) Consultation with the Parsi community and giving the community an opportunity to express their opinion
Once the applicants submit their application to the Parsi Panchayat or the representative body and the list of delegates is finalised, an opportunity must be given to the local Parsis to express their opinion in such manner as the Government may think fit. Therefore, the State Government in its discretion may either appoint an officer of the Government to ascertain the views of the community or may request the District Judge in a particular area to carry out the exercise of consultation as is the case in smaller cities like Pune. In order to carry out this exercise, the best possible option for the Government would be to convey a meeting, chaired by an officer of the State Government or the District Judge or any other such person as the State Government may think fit, at a fixed place and time inviting the members of the Parsi community of the locality to express their view on the list of applicants so selected as delegates. The date, time and place of this meeting can be conveyed vide a public notice in the newspapers as mentioned in the preceding paragraph with the active assistance of the Parsi Panchayat concerned or the representative body concerned. On the day when the meeting is held, care should be taken to see to it that the proceedings of the meeting including objections and suggestions expressed by the persons attending the meeting, on the suitability of the applicants/candidates, be documented and recorded. The details of the exact number of persons who have attended the meeting should also be recorded.
(c) Forwarding the list to the State Government
Once the process of consultation is completed, the officer of the State Government or the District Judge, as the case may be, should forward the final list to the Law and Judiciary Department of the State Government along with all the suggestions and objections, including his or her own comments on the delegates, and after considering the same, should notify the list in the Official Gazette as contemplated by the Act. The entire process should not take more than three months.
Though the said procedure so suggested by the author may not be foolproof, it would nevertheless be in consonance with Sections 24 and 25 of the said Act and would satisfy the contingency of eliciting the opinion of the Parsi community in a locality.
IV. Concluding comments
Over the last decade, the Act has been at the receiving end of a large section of the Parsi community, particularly in Mumbai which has the largest Parsi population in India. The cumbersome scheme of the Act and the delay in constituting the Special Court itself has been subject to a lot of criticism even from the legal fraternity.[36] Initiating a debate to ascertain the views of the Parsi community on the Act by leaders or representatives of the Parsi community would go a long way in forging consensus on whether the Act, in its present form, serves the purpose of the Parsi community. Legislative intent, particularly with respect to miniscule minorities tends to border on non-interference and deliberate indifference. Unless a conscious request is made by the Parsi Community, the Union Legislature will not attempt to amend or repeal the Act. However, for the time being, in its present state and form, one of the ways to make the Act more effective would be to have a prescribed procedure to be followed for appointment of delegates under the Act by way of subordinate legislation. Unlike other enactments, the present Act does not confer any rule-making power of the Union or State Government to formulate rules. In the absence of specified rules making power, an executive order by the President of India under Article 73 of the Constitution of India or by the Governor of a State under Article 162 of the Constitution of India can always be issued in order to lay down a fixed procedure. Such an executive order would bring about a uniform procedure in the appointment process of suitable delegates. This for the time being appears to be the best way forward.
* Practitioner at the Bombay High Court and Junior Advocate at the Chambers of Mr Anil V. Anturkar, Senior Advocate, Bombay High Court.
[1] See the long title of the Act.
[2] Parsi Marriage and Divorce (Amendment) Act, 1948 (5 of 1948); Parsi Marriage and Divorce (Amendment) Act, 1988 (5 of 1988); Marriage Laws (Amendment) Act, 2001 (49 of 2001).
[3] See the Statement of Objects and Reasons of the Amendment Act 5 of 1988.
[4] Ibid.
[5] The jury system was abolished shortly after the famous Nanavati case, [K.M. Nanavati v. State of Bombay, AIR 1961 SC 112 : (1961) 1 SCR 497]. The jury system was abolished in many States like Uttar Pradesh and Bihar and by 1956 the State of Bombay has also abolished it. The Nanavati case was perhaps the death knell of the jury system. See generally, the online edition of “The Hindu” dated 20-8-2016 <http://www.thehindu.com/features/magazine/Judged-by-twelve/article14581947.ece>
[6] See Section 18. The Special Courts constituted in each of the Presidency Towns of Calcutta, Madras or Bombay is entitled the “Parsi Chief Matrimonial Courts” whereas in places other than a Presidency Town, the Special Courts are entitled the “Parsi District Matrimonial Courts”. The Judge of the Parsi Chief Matrimonial Court shall be the Chief Justice of the High Court of such other Judge of the same court as the Chief Justice may appoint. While in the Parsi District Matrimonial Court the Judge of the principal court of original civil jurisdiction (viz. the District Judge) shall be the Judge of such court. (See Sections 19 and 20)
[7] Section 26 of the Act states that delegates appointed under this Act are deemed to be public servants within the meaning of the Penal Code.
[8] Minoo Rustomji Shroff v. Union of India, 2005 SCC OnLine Bom 288 : (2005) 2 Mah LJ 1124, 1128, paras 10 to 14.
[9] Ibid.
[10] Rohinton Panthaky v. Armin R. Panthaky, 2014 SCC OnLine Bom 451 : (2014) 3 Mah LJ 803, 808, 809 paras 12, 15.
[11] Ibid, pp. 811, 812, para 22.
[12] 27. Selection of delegates under Sections 19 and 20 to be 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 two of the delegates attending the court before such delegates are selected and no delegate so challenged shall be selected.
[13] 24. Appointment of delegates.—(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.
[14] The Statement of Objects and Reasons of the Amendment Act clearly state that the Act had not been amended in view of the policy of the Government of India not to effect the changes in the personal laws of any minority community unless the initiative comes from the community itself. Therefore, the policy appears to be one of non-interference.
[15] 2006 SCC OnLine Bom 238 : (2006) 4 Mah LJ 149.
[16] Ibid, para 1 p. 149.
[17] Ibid.
[18] Ibid, para 3 p. 150.
[19] Ibid.
[20] Ibid, para 3 p. 151.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] 2006 SCC OnLine Bom 238 : (2006) 4 Mah LJ 149, vide letter dated 3-3-2004 the District Judge, Pune had informed the Secretary, Government of Maharashtra not to consider the name of one of the candidate as the said candidate had a criminal record.
[27] Ibid, para 5 p. 152.
[28] Ibid, para 5 p. 153.
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Ibid.
[33] Ibid.
[34] 2006 SCC OnLine Bom 238 : (2006) 4 Mah LJ 149, 153.
[35] According to a report in ‘The Hindu’, the population of the Parsi community in the country has dipped by 22 per cent to 57,264 in 2011 from 69,601 in 2001. In 2011 stood at 57,264 of which 28,115 were males and 29,149 females. Maharashtra has a Parsi population of 44,854, the highest among all States, followed by Gujarat with 9727. In Delhi, the Parsi population is just 221. The Parsi population count in Andhra Pradesh was 609, in Karnataka 443, while it was 291 in West Bengal. <http://www.thehindu.com/news/national/other-states/Parsi-population-dips-by-22-per-cent-between-2001-2011-study/article14508859.ece> NEW DELHI,26-7-2016 00:00 IST.
[36]<http://timesofindia.indiatimes.com/city/mumbai/Parsis-debate-separating-divorce-cases-from-HC/articleshow/520185.cms> Swati Deshpande| TNN | 26-2-2004, 01.40 a.m. IST.