Parsis are governed by Parsi Marriage and Divorce Act 1936 which lists several varied grounds.By the Amendment Act, 1975 (Act IV of 1976) jurisdiction has now been conferred solely on Court of Civil Judge, within local limits of whose jurisdiction husband and wife reside or last resided.
Zoroastrian and Parsi Divorce, Marriage and Succession in the light of Court Judgments:
The Courts, through various judgments, have elucidated several aspects of Zoroastrian and Parsi Divorce, Marriage, and Succession. These judgments provide important insights into the legal framework that governs the Parsi community in Pakistan.
- Inheritance and Succession:
- In the case of Cyrus Cowasjee vs. Karachi Metropolitan Corporation [2022 PLD 106], the court deliberated upon the validity of mutation fee charged on the property that was inherited through a ‘Will’. The court, referencing the Succession Act (XXXIX of 1925) and the Transfer of Property Act, 1882, held that the inherited property did not involve any act of transfer as defined. The property was acquired by the petitioners through inheritance, and the right and title in the inherited immovable property automatically devolved to the petitioners by operation of law. The court, therefore, directed the authorities to refund the mutation fee charged.
- The case of Ms. Barbara Halena Philomina in the matter of Estate of Marina Caroline Bond [2019 PLD 330] emphasised that for Christian citizens of Pakistan dying intestate, the Succession Act, 1925 would apply. Chapter II of this Act deals with cases of intestates other than Parsis and would include Christian intestates.
- Divorce and Dissolution of Marriage:
- The Parsi Marriage and Divorce Act, 1936 has been referred to in various cases to deliberate upon the dissolution of marriages among the Parsi community.
- In the case of Ms. Mitra Eruch Kalapesi vs. Eruch Kalapesi [2016 CLCN 44], the court allowed the dissolution of marriage on the grounds that the parties had not been living together for the last nine years. The husband had given his no objection to the dissolution, and the proceedings took place in-camera as required by the Parsi Marriage and Divorce Act, 1936.
- Similarly, in Ms. Geeti Mahyar Dhatigara vs. Mahyar Mehrwan Dhatigara [2015 CLC 557], the court allowed the dissolution of marriage citing incompatibility between the parties and their separation for more than three years. The court noted that the requirements of the Parsi Marriage and Divorce Act, 1936 were complied with, and the delegates present in Court were of the opinion that the parties should not be compelled to remain married against their will.
- The case of Ms. Mahnaz Bakhtiar vs. Farookh R. Mehri [2009 PLD 261] saw the dissolution of marriage on the grounds of desertion. The wife was granted a divorce petition as the respondent had extended no allegation against her, and the delegates opined that it would be impossible for the parties to live together.
- In another case, Ms. Behnaz Nausherwan Marfatia vs. Arash Burjor Sethna [2009 PLD 114], the court granted a divorce under S.32(g) of the Parsi Marriage and Divorce Act, 1936, on the plea of desertion.
Other Legal Aspects
Divorce and Duration of Separation:
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- In the case of Minoo Hoshang Kapadia vs. Arnaz Minoo Kapadia [2008 PLD 271], the court discussed the duration prerequisite for divorce under S.32(g) of the Parsi Marriage and Divorce Act, 1937. It highlighted that the court does not possess the power to condone the stipulated three-year period. Until this period expires, a marriage cannot be dissolved.
- Divorce on Grounds of Cruelty and Desertion:
- In another aspect of the same case Minoo Hoshang Kapadia vs. Arnaz Minoo Kapadia [2008 PLD 271], the wife sought divorce on grounds of cruelty and personal violence. The court clarified that the allegation of the husband causing grievous hurt to the wife did not fit the legal definition of ‘grievous hurt’. Furthermore, the court pointed out that cruelty and personal violence, as mentioned in S.34 of the Parsi Marriage and Divorce Act, 1937, serve as grounds for judicial separation and not divorce. Consequently, the court granted an order for judicial separation instead of divorce.
- In the matter of Zarin Patel vs. Homi Patel [1985 CLC 251], the court delved into the concept of desertion. It emphasized that desertion entails the breakdown of the matrimonial home due to one spouse’s withdrawal. It clarified that mere abandonment of the matrimonial home does not equate to desertion, and even within the same house, a spouse can be guilty of desertion if they withdraw from all marital obligations. In this case, the court granted a decree of divorce on the grounds of constructive desertion by the respondent.
- Landlord-Tenant Relationship:
- In the case of Cawas A. Noshirwani vs. Meher S. Mobed [1990 MLD 846], the court evaluated the personal bona fide requirement of a landlord seeking the eviction of a tenant. It was determined that the landlord, an ailing individual, was residing in a rented flat that was insufficient for his family and lacked facilities consistent with his status. The court considered various factors, including the location of the rented flat, the landlord’s health, and the upcoming marriage of his son, which was being delayed due to inadequate accommodation.
- Interpretation of Religious Law and Legal Commentary:
- In the case of Mst. Mumtaz Bibi vs. Qasim [2022 PLD 228], the court addressed the validity of the commentary on Muslim Personal Law by Dinshaw Fardunji Mulla. It was emphasized that Mulla, being of Zoroastrian faith, was a legal scholar and not a religious expert on Islamic precepts. His commentary, while valuable as a legal reference, cannot be treated as a source of religious law.
- Divorce on Grounds of Incompatibility and Extended Separation:
- The cases Ms. Geeti Mahyar Dhatigara vs. Mahyar Mehrwan Dhatigara [2015 CLC 557] and Ms. Mitra Eruch Kalapesi vs. Eruch Kalapesi [2016 CLCN 44] both revolved around the theme of incompatibility and prolonged separation as grounds for divorce. In both instances, the court, following the provisions of the Parsi Marriage and Divorce Act, 1936, granted the dissolution of marriage when both parties were in agreement, and the stipulated conditions were met.
- Recognition of Foreign Court Decrees:
- In the case of Farokh Homi Irani vs. Nargis Farokh Irani [1963 PLD 567], the court discussed the recognition of a foreign court’s decree. It was held that a decree for judicial separation obtained ex-parte from the Bombay High Court could not be considered a judgment-in-rem and would not prevent the husband from raising the issue of desertion in Pakistan.
In summary, the various judgments shed light on the intricacies of Zoroastrian and Parsi divorce, the importance of stipulated periods in divorce proceedings, and the validity of foreign court decrees in Pakistan. They also touch upon other matters such as landlord-tenant relationships and the interpretation of religious laws. These rulings underscore the courts’ commitment to upholding the legal provisions and delivering justice to the involved parties.
Which citations refer to Zoroastrians specifically and what legal principles do they elucidate in terms of marriage, succession and inheritance?
- Citation: 2022 PLD 106 KARACHI-HIGH-COURT-SINDH
- Parties: CYRUS COWASJEE vs. KARACHI METROPOLITAN CORPORATION
- Relevance to Zoroastrians: The petitioners in this case were Parsi by faith.
- Legal Principle: The case revolved around the validity of a mutation fee raised by authorities for property transferred through inheritance based on a ‘Will’. The court held that the immovable property acquired through inheritance did not involve any act of transfer as defined in S.5 of the Transfer of Property Act, 1882. Thus, no authority under the Sindh Local Government Act, 2013, could charge mutation fees for property inherited through a Will.
- Citation: 2016 CLCN 44 KARACHI-HIGH-COURT-SINDH
- Parties: Ms. MITRA ERUCH KALAPESI vs. ERUCH KALAPESI
- Relevance to Zoroastrians: The case mentions Parsi/Zoroastrian divorce.
- Legal Principle: The case focused on the grounds for divorce under the Parsi Marriage and Divorce Act, 1936. The wife sought dissolution of marriage, stating the husband had refused to continue the marriage for the last nine years. Since the husband did not object, and the proceedings took place in-camera as required under the Act, the court granted the dissolution of the marriage.
- Citation: 2015 CLC 557 KARACHI-HIGH-COURT-SINDH
- Parties: Ms. GEETI MAHYAR DHATIGARA vs. MAHYAR MEHRWAN DHATIGARA
- Relevance to Zoroastrians: The case discusses Parsi/Zoroastrian divorce.
- Legal Principle: Again, under the Parsi Marriage and Divorce Act, 1936, the wife sought dissolution of marriage on the grounds of incompatibility and prolonged separation. Given the husband’s agreement and the presence of all required delegates, the court dissolved the marriage.
- Citation: 2022 PLD 228 ISLAMABAD
- Parties: Mst. MUMTAZ BIBI vs. QASIM
- Relevance to Zoroastrians: The case discusses Dinshaw Fardunji Mulla, a Zoroastrian, and his commentary on Muslim Personal Law.
- Legal Principle: The court emphasized that Dinshaw Fardunji Mulla’s commentary on Muslim Personal Law, while valuable as a legal reference, cannot be treated as a source of religious law given his Zoroastrian faith and the distinction between being a legal scholar and a religious expert.
From the above-mentioned citations, these are the cases that specifically refer to Zoroastrians and the legal principles they elucidate. The primary focus in these cases revolves around inheritance laws, marriage and divorce regulations, and the distinction between legal scholarship and religious expertise.
