Parsi divorce laws: All eyes on top court

The validity of Parsis’ personal law is under the legal scanner once again, on a petition by Naomi Sam Irani, 33 and mother of a 10year son and an 8-year daughter, from Panchgani, Maharashtra, challenging the British-era Parsi Marriage and Divorce Act (PMDA) of 1936 empowering “local Parsi people” to be the jury in deciding whether estranged couple be granted divorce or not.

A Bench of Justices Kurian Joseph and Amitava Roy on Friday issued a notice seeking the Centre’s view on her petition, challenging the Act as violative of her fundamental rights under Article 14 and 21. The Bench wondered why such a law has not been challenged so far, posting the matter for January 19.

In her petition, she says: “...the impugned provision of the said Act is archaic which pre-dates the country’s independence. More importantly, it pre-dates the abolition of the jury system in our criminal jurisprudence in the 1960s and as such it cannot be retained for just one community.”

She has knocked at the Apex Court’s door, citing a suit by her husband for dissolution of the marriage hanging before the Bombay High Court for close to one and a half years as 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."

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 maintenance of children and their education.

Naomi had married Sam Irani in 2005 under Zoroastrian-Iranian rites and customs as per the Act and hence she is not allowed to move the Family Courts, wondering why Parsis are excluded while every other person who is subject to their respective codified personal laws can approach the Family Courts for secure and speedy settlement.

Her counsel Neela Gokhale told the Court that she was inspired to move it after the Supreme Court’s intervention on behalf of the Muslim women to strike down triple talaq seen as a practice in violation of women fundamental rights to life and dignity.

She said Naomi is seeking a remedy for the estranged couples of her Parsi community go through a torturous exercise to get divorce as the procedure under the 1938 personal law was exasperatingly cumbersome, involving a system akin to jury decision, allowing no access to mediation and settlement available to Hindu women under the family court system.

In the last hearing a week ago, on November 24, the court had directed the petitioner to serve a copy of the writ petition on the Additional Solicitor General A N S Nadkarni to seeks views of the Centre. She has pleaded to allow Parsi women to avail the services of the Family Courts, which have been set up to promote reconciliation and speedy settlement of family and marital disputes.

Among the most discriminatory features of the Act is Section 24 which deals with the appointment of delegates who act as the jury to advise the judge. Section 24 (2) of the Act requires that the persons so appointed by the state government shall be Parsis, their names shall be published in the Official Gazette and their number shall, within the local limits of the original civil jurisdiction of a high court, be not more than 30, and in districts beyond such limits, not more than 20.

Under Section 25, the appointment of a delegate shall be for 10 years, extendable for the like term or terms. The state government can fill any vacancy by appointing another person as the delegate. Section 27 says that 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 so appointed. A proviso to Section 27 allows each party to the suit to challenge any two of the delegates attending the court without stating reasons before they are selected, and no delegate so challenged shall be selected.

Naomi has claimed in her petition in the Supreme Court that as on date, there has been no appointment of delegates to participate in the matrimonial proceedings pending in the Bombay High Court. Naomi, therefore, claimed that because of their non-appointment in time, she has been deprived of speedy disposal of her case and of the specialised jurisdiction.