India is a huge and extraordinary nation having a population over 1.3 billion (130 crore), extending from Kashmir in the north to Kanyakumari in the south, from Thar Dessert in the west to Arunachal Pradesh in the east. This country is home to various individuals following various religions, ideologies, cultures and customs, communicating in numerous dialects and languages. Being the biggest democracy on the planet which has government structure.
Regardless of this unique variety, there goes a strong spirit among the citizens in the whole country from south to north and west to east, the spirit of ‘We Are Indians. To make our country ahead of all, we need to have a society based on gender equality where everyone can live happily sharing fair chances of progress, rights and duties, where everyone can have equality in dynamic, monetary and social opportunity.
Women strengthening is imperative to development of any country and to secure and sustain basic liberties. The Constitution of India ensures equal rights furthermore, benefits to all citizens without any discrimination on any grounds. In spite of various safeguards by various laws and the basic essence of our constitution, women still today need to battle hard to make the most of their privileges at nearly every point of life.
The need of the hour is to change the orthodox mindset that is hindering the growth of women in our society need to be changed not by force or any kind of authoritativeness but by actually changing their views. The methodology used by researcher is doctrinal research methodology because empirical conditions being the favourable mode of study. Researcher has found the issue in interest of society, so this research can be termed as socio legal research.
Researcher has studied the relevant literature available in books, case laws and various databases. The questions that researcher has dealt in the paper is whether the religious laws are still competent enough to solve the issues in the modern times, what are the difficulties facing by the citizens from the orthodox mindset and whether an effective research has been done in recent times in the areas of interest?
The objectives that has been set by the researcher is to find out the condition of the balancing of two system of laws in the modern society, to find out the problems occurring around the masses with relation to the changing in law pattern and to make research paper in such a way so that the system can be revised for betterment by suggestions.
The Parsi community initially hailed from the area of ‘Pers’ in Iran. They later settled in India in Daman and Diu during 600 AD, later spreading to different pieces of the nation. Likewise reflected in their laws concerning marriage and separation, an affectionate network has been maintained by the Parsis keeping up their own different and distinct rituals.
During the British era, the Britishers came up with English Civil Law to handle the disputes and expected everyone to abide by it but the Hindusand Muslims were exempted from English law and were governed according to their personal laws because their laws were rooted in religion. Interestingly, the concept of personal laws was not uniformly applied to Parsis and were governed by the English Law only. It was the first time in 1865, when Parsis drafted their own personal law regarding intestate succession and the Parsis Marriage and Divorce Act, 1865 came into existence.
It was this act only which was incorporated of the Indian Succession Act, 1925. The elder members of the community, to be specific, Parsis Central Association were not satisfied with the legislation and did not found it to be relevant on the social grounds and perspectives of the community felt the need to change the laws. A Parsi Law Association was formed whose aim was to draft a new legislation based on complete knowledge of Parsis custom.
It was, in this way, changed and was at last titled as Parsi Marriage and Dissolution Act, 1936. It was finally amended by an Amendment Act in 1939 and since then it is being followed strictly. Marriage is considered as a profound order under Parsi Law, and marriage and separation of Parsis in India is governed under the Parsi Marriage and Divorce Act, 1936 (from now on alluded to as PMDA) and its 1988 change. Separation under this law can be allowed on grounds, for example, non-fulfillment inside a time of marriage, infidelity, brutality, unnatural offense, etc.
Denying the basic rights of self-assurance, self-governance and sufficient admittance to assets to women, the PMDA has often been questioned on the reasons of being ominous to the rights of ladies. Endeavors at eliminating the man centric stranglehold over Parsi law and changes intended to address the equivalent, have been ineffective. The procedure with utilization of the jury framework under the PMDA is one of the components that antagonistically impacts the privileges of Parsi women. This uniqueness of the Parsi framework has been broadly criticized. The advancement of the framework and the reactions leveled towards it have been managed under the resulting heads.
Jury System In Parsis And Criticism
The Parsis being one of the main groups to grasp the English culture and educational framework, additionally taught the act of jury preliminaries into their traditions. The use of Jury framework for Parsis was classified in the PMDA by the Federal Assembly which depended on a bill submitted to the Council of State by Sir Pheroze Sethna in 1935. Segments 19 and 20 of the PMDA endorse the use of jury framework in settling marital questions. Cases on the matters of divorce for Parsis are to be presided by a five-member jury.
These jurists (likewise alluded to as delegates) are influential and powerful individuals from the Parsi Panchayat (people group). They are named for a period of 10 years by the Chief Justices of Bombay, Calcutta and Madras High Courts, and direct preliminaries inside the regional locale of these High Courts. The jury meets hardly any times each year to arrange all pending marital cases.
For different purviews, Parsi District Matrimonial Courts are to be comprised which has a comparative majority of jury individuals. Individuals from the jury are looked over a polling form from a waitlist of intrigued legal jurors, the rundown of which is set up by the Parsi Panchayat. Jury obligation is viewed as network administration and conveys ostensible compensation. The decisions of the jury are authoritative however can be challenged in the High Court and Supreme Court.
The jury have been conceded far and wide powers, with the main limitation on them being their failure to choose issues of divorce settlement and child custody. Since the PMDA doesn’t indicate any particular time period for disposition of the case, and on the grounds that the hearers meet just barely a few times each year, the separation applications are stuck in a colossal build-up going back to quite a long while. In certain occasions the timespan among assessment and interrogation of the gatherings to the divorce case happen quite a long while separated from one another.
The interminable time for choosing cases unfavorably impacts the gatherings engaged with the dispute, with the deferral in adjudicating the case negatively affects the individual both from emotional and financial circumstances of the parties in question. In addition, since the debate is before a jury, whose capacity to value the law is intrinsically lesser than that of the bench, the contentions in Parsi divorce cases are typically more genuinely charged and emotional. An extra disadvantage is that the judges are assailed with a solid male centric attitude as the jury is made only out of more established men, while amusingly, the majority of the offended parties looking for separation are ladies.
The unbalanced portrayal of women in the jury is very unfortunate and disturbing. This has gotten under the skin of the Courts, with the Bombay High Court naming the jury framework for the Parsis to be a gratuitous extravagance. In the 2014 instance of Rohinton Panthkay v. Armin Panthkay, the Court came to conclusion that the assortment of proof was by and large unduly postponed since 2012 as, there had been no meeting with the jury by any stretch of the imagination, and under Parsi law the proof must be gathered in nearness of the jury.
The Court communicated its disappointment at the slow functioning of the jury and called for procedural changes to be made to the framework and saw that such changes would not be against the holiness of the faith.
Case Of Naomi Sam Irani
This notable case law is important to mention pertaining the study of women rights in Parsi community. Mrs. Irani who had been married for a long time, and also had two kids. She looked for separation from her husband on grounds of brutality before Bombay High Court. The jury was not designated even after two years of recording the appeal. In this manner confronted with the unavoidable and delayed deferral in progress of the procedures, she chose to move towards the Apex Court.
In her request before the Supreme Court she contended the Sections 18, 19, 20, 24, 30, 46 and 50 of the PMDA (which manage the jurisdiction, constitution and arrangement of the members of the jury) as being violative of Art 14 and 21 of the Constitution. She contended that the PMDA had denied her of the specific purview of typical family courts, and exposed her to mental anguish.
The system was certified to have entered Article 14 of the Constitution, which guarantees equality, as it shields Parsi women from pushing toward customary family courts, and profiting the preferences loosened up by them. This spots Parsi ladies on a different level opposite ladies having a place with different beliefs, along these lines proliferating imbalance within the gender on the basis of religion.
The legitimacy of personal laws is dependent upon their testing on the standard of fundamental rights, and contradiction with the same can deliver such personal laws to be invalid. It is significant that family courts are well-versed with services of child care centre, guides, in-camera hearings and prepared adjudicators who fill in as directing officials, and these advantages are inadequate in the Parsi jury framework.
Further, the determination and bench of jury takes a preposterous measure of time, which causes ridiculous deferral in continuing of the case. The fact about the existence of breach of privacy is also disturbing as it gives arbitrary individuals from the neighborhood Parsi people group the opportunity to offer assessments on sensitive and individual issues. In addition to it, the parties probably won’t be agreeable in illustrating proof or making claims against one another in presence of the individuals from their own locality.
Likewise, the Act doesn’t recommend any imperative rules for capability as a jury part. Hence, the greater part of the jury is one-sided attributable to cultural standards, and virtues, rather than sound legitimate or legal standards. Having taken cognisance of the issue, the Supreme Court gave a notification to the Central Government, guiding it to advance its perspectives on the issue. The Center is set to make its entries in the forthcoming months.
Women In Parsi Community
In Parsi community, the position of women is not observed to be strong and in-fact the personal laws of the community are discriminatory which though has no foundation in the actual religious belief. For the sake of an example, if a Parsi women marries someone from other community, she is without any reason is expelled from the community and it does not matter whether still her religious belief is same.
Parsis though small in number but is one of the most progressive community with 90% literacy rate and firm control on Indian industryand trade but these statistics are found to be meaningless where women are still discriminated, the community has the most unjust inheritance laws which only shows gender bisases. The rights of women in the Parsi community can be examined through sacred writings and antiquated Zoroastrian writings, for example, the Avesta.
Notwithstanding, the sacred writings can be encountered and seen from numerous points of view. The outcome is two primary school of text elucidators – a liberal camp and an orthodox camp. The individuals who analysed the content with a liberal point of view express that the Parsi prophet, Zarathustra, has consistently tended to the two people through his words and activities.
The fanatic view expresses that nobody who is half Parsi, regardless of whether male or female, destined to a Parsi mother or father, ought to be viewed as a Parsi by any means. These individuals accept that laws and access, even those that permit youngsters destined to Parsi fathers and non-Parsi moms, should just be made more stringent and restrictive. Parsi ladies additionally face segregation in network spaces, for example, social clubs.
Numerous such clubs in Mumbai have embraced the British thought of a “Gentleman’s club” by just conceding enrollment to men. One conspicuous case of this is the Ripon Club. Following reaction from the network, the Ripon Club started allowing enrollment to females. Roughly 10% of their individuals are female, every one of whom are viewed as “woman associates”. Such individuals must achieve their participation either through a Parsi father or a Parsi spouse who is a part. They don’t have voting rights within the club.
Notwithstanding lawful limitations, ladies in the Parsi faith face limitations in ritualized, religious proceedings too. One of the most outstanding instances of this is ladies are not permitted into the doongerwadi and other consecrated graveyard for Parsis all through India irrespective of their feelings towards the loved ones.
The instances being recorded in smaller towns of Gujarat are enough to examine the situation where women are still have not access to their legal share in property of their husbandand father. The women in the community have this fear of expulsion from society in their mind which makes them away from protests or oppositions and they agree to the decisions of the orthodox community panchayats. But in 1981 there was a breakthrough protest in which women took the help of judiciary as well and they won.
“But the first time they did, they were successful. This was in 1981, when practising Zoroastrian women married to non-Parsis were denied the right to vote in their community’s local elections unless they submitted a different affidavit stating that they practised the Parsi faith. They appealed to the courts to prevent such humiliation and won. As more Parsi women join the mainstream of dissent and protest they will find the support needed to stir their community from its present stagnancy.”
Marriage In Parsi Law
The matrimonial relations of Parsis are governed under Section 3 of Parsi Marriage and Divorce Act, 1936 in which the researcher wants to highlight one of the clauses which is being discussed in detail.
The clause is:
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 As stated in clause b, the marriage in Parsi community is regarded as a contract which is completed only after the ceremony of Ashirvad.
It is of utmost importance to perform this ceremony conducted by priest witnessed by two persons to hold marriage valid. Since the marriage is believed to be a contract between two parties, the marriage would be declared in case, there is breakdown, flaw, or absence of mutual assent. Yet the most adverse condition that by and large works harshly against women is the restitution of matrimonial rights. The clause in the Act clearly depicts of dominance of male in the community.
The concept of monogamy is practiced in the community. Any other marriage untiland unless the first one being legally dissolved would be considered as bigamy and would be charged under the related sections of Indian Penal Code. This practice is strictly followed and is not allowed even if a Parsi change his religion or domicile for second marriage. Like the Hindu law, blood relatives are not allowed to marry and in-fact the legislation comprises a list of combination of relatives, whose marriage is not allowed.
The arrangement of inter-religion marriage is carefully precluded in the Parsi people group and is classified by the Parsi Marriage and Divorce Act, 1936. Yet, by and by the predominance of guys in the community is reflected in the personal laws as one of the arrangement sets out that in the event that Parsi male weds outside the network, at that point his youngsters can become Parsi, yet the equivalent isn’t material for Parsi female and if a Parsi lady weds to a non-Parsi, her kids won’t be considered as Parsi. A few ladies in the community have scrutinized the training and taken the issue to the courts.
Inheritance Under Parsi Law
Distribution of portion of predeceased offspring of intestate leaving lineal relatives; if such deceased was a son, his widow and kids will take share as per the arrangement of this section as though he has passed on following the intestate demise. If such perished youngster was a daughter, her offer will be distributed equally among her kids. Distribution of assets where intestate leaves no lineal relative and leaves a widow or widower or a widow or widower of any lineal relative.
There are discrete standards for appropriation of the advantages of a male and female. The son’s share in his father’s property is twice that of the daughter. The widow gets just as much as anybody of her son. In the event that the intestate’s parents endure being, at that point the half share of the deceased son goes to the father that is equivalent to the portion of the daughter.
Yet, the mother gets just the half portion of the little girl. When a Parsi woman dies intestate, leaving her husband and children, the property is divided equally among the widower and the children. Male is not bound by any such restriction. While the son is qualified for an equivalent portion of the mother’s property with the daughter, the daughter isn’t qualified for a similar right at the point when she acquires the property of her father. Moms and daughters at that point are the most noticeably terrible endures.
A Parsi lady is agreed no insurance against discretionary choice either – for where as in Muslim law the father can’t exclude his better half or girl; he can just will away one eighth of his property as per his desires.
A Parsi male isn’t limited by any such limitation. In the inheritance laws as well, we can see the partiality between menand women which is evident from the various provisions out of which some are highlighted as:
The daughter’s share in the property of her father is half of that of the share of son. If the intestate’s parents survive being then the father gets half the share of the son that is equal to the share of the daughter.
But the mother gets only half the share of the daughter. The Parsi mother is in a worse position than the Hindu mother who under the 1936 Hindu Succession Acts gets a share equal to that of the widow and the children. Here I would like to quote the perception of Anjali Kant, a prolific writer in subject of Women Rights.
“Where as in 1939 these rules conferred better rights to women than existing Hindu and Muslims Law, with the passage of time they have gone out of step with progressive social trends. Why the educated, outwardly enancipated Parsi women tolerate such inequality is hard to comprehend.
Many of course are ignorant of the law until it actually applies to them. The smaller town of Gujarat, for instance, even today there have been recorded instances of Parsi women being deprived of their legitimate share in the estate of their fathers and husband. They have accepted all simply because they do not know that the laws have been changed.”
Notable Case Laws
One such case is that of a Parsi ladies, Goolrukh Gupta, who came in a wedlock with a Hindu man and was accordingly banned from entering all Parsi sacrosanct because of inter-religion marriage. The woman took legal action against the Parsi trust in her town of Valsad, Gujarat that forced the limitation on her. Gupta contended her marriage to be a valid one under the Special Marriage Act of 1956 and hence common marriage should get recognition in all the communities. Surprisingly, the High Court decided in the favor of the Parsi trust and both from the legaland religious perception, Goolrukh Gupta was a Hindu, and not a Parsi anymore.
Another well-known case is the Parsi Panchayat Case of 1909. In this case, Sir Dinshaw Petit filed a petition against the Bombay Parsi Panchayat (BPP) on the grounds that the assets from the BPP trust were being confined from Parsi converts, as individuals who could likewise be profited by the contributions of the trust. It is very interesting, Ratanji D. Tata and his wife, who was a French lady, also came under the umbrella of plaintiffs.
Mrs.Tata had changed over to the Parsi religion, but as a convert, the BPP banned her from entering any sacred place of parsis and crippled her from being buried in the holy site, the Tower of Silence. But once again, the High Court decided for the trust.
This third case is an interesting one, in which the Supreme Court of India decided in favour of women rights. Regardless of both being married to non-Parsi men, two Parsi sisters were allowed to go to their father’s burial at the Tower of Silence. For the very first time, the Court gave the decision against the Mumbai Parsi trust.
From the very origin of the human being till now, humans had developed a lot in every field whether it be information technology, medical research, architecture and what not. But there are some loopholes in our society which need to be eradicated from our society to gain something more out of the artificial progress. As of now, we are living in 21st century where everybody has privilege of his Fundamental, Constitutional and Legal rights.
The recent cases concerning Uniform Civil Code, illegality of Triple Talaq, and the Sabarimala decision, have started huge discussions and have paved way to invite all the positive developments. In the scenery of these occasions, the current consultations seeing the PMDA fill in as a beam of plan to a huge number of Parsi ladies. Their situation has for some time been neglected or reliably gone unremedied. In numerous areas, Parsis have frequently been viewed as a model community, yet Mrs. Irani’s appeal brought to the cutting edge the notorious chinks in the armour.
During a time where women rights have at last started to go to the bleeding edge of legitimate talk, the presence of the Parsi jury framework is a deterrent that crashes the course of rapid and viable justice system. In this present modern era, where on one side it is quite important to be strongly connected to our basic moral valuesand religious beliefs but to change with the changing times is important as well. In any sphere of life whether on community or professional grounds, the discrimination on the basis of gender is nothing much more than the corrupt mentality.
The adverse mindset of male dominance deserves nothing much more than to be critically condemned not only by the intellectuals but firstly by the person experiencing it, secondly by the persons observing it and criticizing to the extent till the time the person realises it. We have to make the present in such a way without leaving the traces of this immoral practice on future generations.
- Jesse S Palsetia, The Parsis of India: preservation of identity in Bombay City 56 Encyclopaedia Iranica 2001
- S. 32(d) of Parsi Marriage and Divorce Act 1936
- Professor Kusum, Family Law I 11 (Lexis Nexis Butterworth) 1997
- 2014 SCC OnLine Bom 451
- Dr S.R.Myneni – Women and Law – Asia Law House, Hyderabad, p115-116
- Abhisarika Prajapati, The Ethnic Identity of Parsi Community and Voice of Women in Parsi Writings, 41311 University Grants Commission, New Delhi Recognized Journal, (2019)
- Anjani Kant, Women and the Law 91 (A.P.H. PUBLISHING CORPORATION) 1996
- Lalita Dhar Parihar Women and Law 222 (EASTERN BOOK COMPANY) 2001
- Dr Paras Diwan, Family Law 26 (ALLAHABAD LAW AGENCY) 2014
- S.53 of The Parsi Marriage and Divorce Act 1936
- S.54 of The Parsi Marriage and Divorce Act 1936
- Sylvia Vatuk, Women’s Rights Issues Among Bombay Parsis: A Legal Anthropologist’s Thoughts on Mitra Sharafi’s Law and Identity in Colonial South Asia, 1215 Law and Social Inquiry, (2017)
- Dr Paras Diwan, Family Law 377 (ALLAHABAD LAW AGENCY)
- Anjani Kant, Women and the Law 91 (A.P.H. PUBLISHING CORPORATION) 1996
- Arvind Sharma, Review: She’s Come Undone: Parsi Women’s Property and Propriety under the Law, 41 Political and Legal Anthropology Review, 44 (1999)
- Jyoti Shelar, The Conflict within: Parsis and gender Rights, the hindu (May.22,2017)
- Samanwaya Rautray, Parsi women married to non-Parsis can visit its places of worship: Supreme Court. The Economic Times(Dec.15,2017)
Written By: Srajan Kapil, Symbiosis Law School, Hyderabad – Symbiosis International University, Pune