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Contemplating Divorce

Parsi Divorces in India – A Legal Perspective

Parsi Divorces in India – A Legal Perspective

As told to me by a Parsi acquaintance, there are roughly 70,000 Parsis in India, with about 90% of them living in Mumbai. Although the actual figures may vary, there is no denying the fact that the numbers in the Parsi community are very low.
As with other marriage and divorce laws in India, Parsis are governed by a law specific to them called the Parsi Marriage & Divorce Act, 1936 (PMD). This law governs and regulates the marriages and divorces of all Parsis in India. The Act defines a Parsi as a Parsi Zoroastrian. However, if the marriage has been performed as per the provisions of any other Act, like the Special Marriage Act, 1954, the provisions of that law shall apply to any marriage or divorce.
In this article, we shall look at the provisions for divorce under the Paris Marriage & Divorce Act, 1936. Please read ahead only if you are sure that your marriage was performed and registered under this Act for these provisions to apply.

 

Which Court should I go to?

The PMD states that for any proceedings under the Act, special Courts will need to be set up. The proceedings will not be carried on in the Courts where the matrimonial proceedings under other Acts are conducted. It is important to remember that the word ‘Court’ can mean a physical location as well as the concept of ‘Court’. It is possible, and it is at the discretion of the concerned authorities, that they may designate the same court location/building where the matrimonial proceedings under other Acts may be carried on to be designated for proceedings under the PMD.
As per the PMD, if you wish to file for any divorce proceedings in Mumbai, Kolkata or Chennai, the proper forum is the Parsi Chief Matrimonial Court. However, for other places, the Court is called the Parsi District Matrimonial Court. So, it is necessary to speak to an experienced lawyer to understand which forum would be the appropriate one in your area.
In order to decide whether the divorce proceedings can be filed in a particular Court or not, certain conditions need to be met. These conditions relate to the location of the wedding ceremony, the residence of the parties and even the location where the married couple last resided together.

 

What are the grounds for divorce under the PMD?

(For ease of understanding, please note that the one who approaches the Court is the Plaintiff and the one against whom the proceedings have been filed is the Defendant. And, a decree is the final order in a specified format.)
A Parsi, whose marriage has been registered under the PMD can file for divorce as per Section 32 of the Act, on the following, amongst other grounds (the language is not verbatim and has been simplified for the purposes of this article):
a) That there has been no sexual intercourse within one year after the solemnization of the marriage because of the wilful refusal of the defendant;

b) That the defendant was of unsound mind at the time of the marriage and has been of unsound mind till the filing of the divorce proceedings. However, divorce shall not be granted on this ground, unless the plaintiff was ignorant of the fact at the time of the marriage, and that the divorce proceedings have been filed within three years from the date of the marriage;
(bb) That the defendant has been of unsound mind for more than two years before the filing of the divorce proceedings or has been suffering from such a mental disorder that the plaintiff cannot reasonably be expected to live with the defendant.
Now, “mental disorder” here means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.
And, the expression ‘psychopathic disorder’ means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormal aggression or seriously irresponsible behaviour of the defendant, regardless of whether or not it requires medical treatment;

c) That the defendant was at the time of the marriage pregnant by some person other than the plaintiff. The divorce shall not be granted on this ground unless the plaintiff was ignorant of such pregnancy by somebody else at the time of the marriage, the suit has been filed within two years of the date of the marriage, and that sexual intercourse has not taken place after the plaintiff came to know of such pregnancy by somebody else;

d) That the defendant has committed adultery or bigamy or rape or an unnatural offence. However, 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;

(dd) That the defendant has treated the plaintiff with cruelty or has behaved in such a way as to render it improper to compel the plaintiff to live with the defendant.

e) That the defendant has voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with a venereal disease or, where the defendant is the husband, has compelled the wife to submit herself to prostitution:

However, it is pertinent to note that the 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 and that the defendant has undergone at least one year’s imprisonment out of the said period prior to the filing of the suit;

g) That the defendant has deserted the plaintiff for at least two years;

h) That 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 one year or more since such decree or order;

i) That the defendant has ceased to be a Parsi by conversion to another religion. It must be kept in mind 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.

As per Section 32A, in addition to the above grounds, either the husband or the wife may file for divorce also on the ground —

(i) That there has been no resumption of cohabitation between the two of them for more than a year after a decree for judicial separation has been passed; or

(ii) That there has been no restitution of conjugal rights between the two of them for more than a year after a decree for restitution of conjugal rights has been passed.

However, divorce shall not be granted under this Section if the plaintiff has failed or neglected to comply with an order for maintenance passed against him under section 40 of this Act or section 488 of the Code of Criminal Procedure, 1898 or section 125 of the Code of Criminal Procedure, 1973.

 

Provisions for divorce by mutual consent under the PMD

For filing divorce proceedings by mutual consent under Section 32B of the PMD, divorce proceedings may be filed together by the husband and the wife only after a minimum of one year has elapsed after the wedding. And, the couple needs to have lived separately for more than one year before the date of filing.

After the filing, the Court will have to be satisfied as to the contents of the divorce petition and may make any enquiries as it thinks is proper in the interest of justice. The Court will also ascertain that the marriage was performed under the PMD and further also ascertain that the consent of either the husband or the wife was not obtained by fraud or by force. Only after these conditions are fulfilled will the Court pass the divorce decree.

 

Nullity & Dissolution

The PMD also provides for two separate categories of proceedings, viz., proceedings for declaration of nullity of marriage and that for dissolution, that ultimately terminate the marriage. Now, one might wonder how these are different between themselves and also from divorce. The simple answer to that is that it is because it is provided for in the law.
All three modes bring the marriage to an end. However, the reasons or grounds for which the marriage is brought to an end, are different. The terminology is important because that determines the kind of proceedings that need to be filed in the Court.
In proceedings for declaration of nullity of marriage, the marriage can be declared to be null and void if the consummation of marriage is not possible due to any natural causes and not because of wilful refusal of either the husband or the wife to consummate the marriage.
For declaring the marriage as dissolved, the conditions are that if either the husband or the wife has been continually absent from his or her wife or husband for more than seven years and has not been heard of as alive, and shall not have been heard of as being alive, such a marriage may be dissolved.

 

Can I get remarried immediately after I get a divorce?

The appropriate answer to this question would depend on the facts and circumstances of a particular case. In the case of divorce by mutual consent, there is no right of appeal against the decree since the divorce decree is by mutual consent. Under Indian law, if there is any order or decree that is passed by the mutual consent of the parties to the proceedings, there can be no challenge to that decree/order, except where it is proved that the said order or decree was obtained by fraud, coercion, undue influence, etc. However, in those circumstances, the burden of proof is extremely heavy upon the one alleging such wrongdoing. Thus, for anyone who has obtained a divorce by mutual consent, he/she can get married upon obtaining the decree of divorce.
In the case of a decree of divorce granted in contested proceedings, the answer is not straight-forward. The other party, whether it is the husband or the wife, may file an appeal. If a stay is granted to the decree in the appeal, then the marriage would still be alive and not terminated. Only after the final outcome of the appeal can you know whether the decree of divorce has been upheld or has been set aside. Only if the appeal has been dismissed, can the party intending to remarry can do so.
There is a certain time granted to file an appeal against the decree and if until the lapse of that said time period, no appeal has been filed, the party intending to remarry can do so.

Note: There are other provisions under the PMD, regarding judicial separation, alimony, succession, etc. that you need to be aware of. Only a licensed legal practitioner can properly advise you on the best course to adopt that will suit your requirements. Please remember that although the law is the same for all, it can never be ‘one size fits all’.

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