EXCERPTS FROM THE BOOK, HISTORY OF THE BOMBAY PARSI PANCHAYAT BY SAPUR FAREDUN DESAI 1860-1960 -PART 2
This is part 2 of Excerpts from the book History of the Bombay Parsi Panchayat 1860 to 1960 by Sapur Faredun Desai. Excerpts are from pages 18-26.
When asked who is a Parsi, Parsis often quote the obiter dictum (observation) made by Justice Daver in 1908. But this observation (not a judgment) must be read as part of his analysis of the case and not separated from the whole to understand the true meaning.
Petit vs Jeejeebhoy (the official name of the case) is a severe indictment of the behaviour of Parsi men. It does not confirm patriarchy as claimed by some but confirms the existence of a different social system where the sanctity of marriage vows was not maintained.
It must be remembered that at that point in time the Special Marriage Act of 1872 was in effect. Under this Act a couple professing different religions could marry but both MEN and WOMEN had to sign a written declaration giving up their religion. The law was applicable to men and women.
All children born to a Parsi man or Parsi woman with a person alien in religion, before 1954, were illegitimate. It was not legally possible to have an interfaith marriage. This Act has been replaced by the Special Marriage Act of 1954 under which an intermarried couple can be true to their love and their faith.
Excerpts from the book:
“The suit, called Petit vs Jeejeebhoy, was filed against the Trustees by a set of individuals, who were the cream or the elite of the community against the five acknowledged Akabars of the community. The former comprised Sir Dinshaw Petit, Bt., Sir Cowasji Jehangir, Kt. (later First Bt.), Mr. Rustomji Behramji Jijibhoy, Mr. (later Sir) Ratanji J. Tata, Mr. Bapuji Sorabji Patel, Mr. Ratanji Dadabhoy Tata (the husband of the French lady) and Nanabhoy Naoroji Katrak (trustee of the Anjuman AtashBehram).
The latter, i.e., the defendants comprised Sir Jamsetjee Jejeebhoy, IV Bart., Hormusji Edaljee Albless, Jamsetjee Cursetjee Jamsetjee, Merwanji Muncherji Cama and Bomanji Dinshaw Petit.
Questions at Issue:
After hearing the parties, the learned judges, Justice Daver and Justice Beaman, boiled down the questions to 2 issues”
“(1) Whether the Defendants are validly appointed Trustees of the properties and Funds of the Parsi Punchayet, and whether, in the event of death or resignation of one or more of them, they have the right of filling up such vacancy or vacancies as they occur;”
and
“(2) Whether a person born in another faith and subsequently converted to Zoroastrianism and admitted into that Religion is entitled to the benefit of the religious Institutions and Funds mentioned in the plaint and now in the possession and under the management of the Defendants.”
On the first part of the case the judges concluded:
“We hold that the Defendants are not validly appointed Trustees of any of the Funds enumerated in the Schedules, Exhibits Nos. 54, 59 and 60.”
“We also hold that they are not validly appointed Trustees of any of the properties comprised in the General Trust Deed of 1884, Exhibit U, except properties 10thly and 11thly described in the Schedule to the Deed.”
“While coming to this conclusion the judge said, and Beaman agreed, that ‘it should not be taken to cast the smallest reflection on the integrity or honour of the defendants.’ Mr. Lowndes has been quoted to say, “I charge no misconduct in the ordinary sense of the term.” After referring to this Davar proceeded to show how great in status the defendants were and from what families they descended. “These are the persons whom we are constrained to remove from office”, but under express authority conferred on the Court by sections 35 and 45 of the Indian Trustees Act, XXVII of 1866, “We appoint the surviving Defendants Trustees of all the Funds and Properties dedicated or devoted to Parsi Charities and known and spoken of as Funds & Properties of the Parsi Punchayet, and we order that all Trust Funds and Properties do vest in them.”
Second Branch of the Suit.
Justice Daver explains in his judgement the social system as it existed at that time:
“149. Before I proceed to discuss any further the evidence of other witnesses who gave somewhat similar evidence, I would like here to explain how, as I understand it from the evidence, the Parsis came to make an exception in the case of children born of Parsi fathers by alien mothers.
150. In the olden times, the Parsis were a poor community. A great many of those that settled in Bombay and the larger cities of Grujerat had to go out into the interior for the purpose of earning their livelihood by some sort of trade or service. Some of those that went out had no wives, and others who had wives found it most inconvenient to take them with them to the remote parts where they served, so they left them in their native places where their families were settled, either with their own families or the families of the wives.
While in these remote villages -far from their homes and their families, some of these Parsis took to having unlawful intercourse with women whom they took into their quarters as their mistresses. The women whom they could pursuade to live with them were necessarily from the poorer and the lower classes. In the Districts of Gujerat, a low caste of Hindus, known as Dubras, abound, and most of the Parsis settled in remote villages took to themselves mistresses from this caste. It was not unusual in those days for Parsis, in some of the cities of Gujerat, to introduce Dubra women in their houses ostensibly as servants and subsequently treating them as their mistresses.
Alliances such as these sometimes resulted in the birth of children. The father naturally did not wish to desert them, but usually got some friendly priest to perform the Navjot ceremony on them during their young age and thus smuggled them into the community. Though this course of conduct nowhere received the sanction of the community openly, the people who became aware of this, shut their eyes and no noise was made about the matter. When the fathers returned to their native places and to their families, they brought these children with them; and although they wore allowed to pass as Parsis, their birth was always regarded as tainted.
The reason for regarding such children with favour and allowing them to be invested with Sudra and Kusti, was that they were taken to be children born in the faith of their fathers and, therefore, they were not regarded as Juddins. They were the children of Parsi boon (i.e., seed); they were children of Parsi olad (i.e., origin) and, therefore, in some cases the mere performance of the Navjot ceremony and the investiture of Sudra and Kusti by a priest, without any other ceremonies, was considered sufficient to let them in.
These children in time grew up and begot families. These original half-breeds and their families were always regarded with a certain amount of disapprobation by the community. The class of people descended from Dubra mothers is extremely limited. They are getting extinct. As the Parsis progressed in education, wealth, and civilization, the moral influences brought to bear on delinquencies such as I have described were so powerful, that instances of keeping mistresses and having children by them became very rare, till, in the more modern times, they have become almost extinct.
The evidence in this case, however, shows that Surat was the stronghold of these Dubri-bred Parsis, and there are still some families of this kind who are known by the name of Parvara houses,” as appears from the evidence of Surat witnesses examined in the case.”
Justice Beamon also made a telling comment on the social system existing at that time:
“The defendants, expressing as we now know the orthodox Parsi view, are prepared to overlook immorality, bastardy-anything but alienage. They are ready to admit any and every Irani Zoroastrian about whose antecedents they cannot possibly know anything. But they will not admit the purest, most blameless foreigner, of whose character and conduct they may have the completest assurance.
They will admit all the illegitimate children of Parsi parents, begotten of prostitutes or kept mistresses, but they will not admit the noblest, most exemplary foreigner. Why? Because a foreigner is outside the caste, and caste is an institution into which you must be born. Of the modern Parsi they say emphatically nasautur non fit. This is not religion; it has nothing to do with religion: it is essentially distinctly irreligious; but it is pure unadulterated Oriental caste.”
Excerpts continued :
“The first question which Davar decided was whether the plaintiffs who were all Parsi Zoroastrians by birth and entitled to all the benefits could maintain the suit and at once replied in the negative. The right to file a suit vested in the person that is wronged. Here no such case existed. “Actio non datur non damnificato”-An action is not given to him who is not wronged, he said.”
Davar rightly said that if the decision went against the plaintiffs, whose rights are not under dispute, the converts could say “We are not bound by your decision; we never asked you to adjudicate on our rights.” It may be stated that although the court asked if they had any more witnesses to offer the plaintiffs never put any of the two converts into the box, nor did they join them as parties. Davar then came to the conclusion and said:
“I would therefore dismiss this part of the Suit and find against the plaintiffs on the issues which raise the question of their right to maintain this suit.” Davar would have liked to stop at that stage and close the case, but he felt it was “extremely desirable that this litigation should reach the final Court of Appeal in as complete a form as possible” in view of the fact that there had been expended an enormous amount of time, labour and money in the Suit. And these considerations compelled him to go through all the evidence and discuss all the points argued before him.”
“The court at one stage made strenuous efforts to bring the suit ‘to a termination in an amicable manner’. One of the terms was that “the Defendants might treat the case of these two ladies as exceptions and admit them to the benefits of the Funds and Institutions in even a limited form, and the community of Parsis may then make what rules and pass what resolutions they like for future events.” The defendants said they could not agree to it without being guilty of breach of trust, unless they obtained the sanction of the community.”
Davar sums up this part of the case with the following conclusions:
1. Zoroastrian religion not only permits but enjoins conversion of a person born in another faith and of non-Zoroastrian parents.
2. Although permissible, the Zoroastrians these 1200 years have never attempted to convert any one to their religion.
3. There is not a single instance proved, before the court, of a person born of both non-Zoroastrian parents ever being admitted to Zoroastrian religion.
4. The Parsi community of Bombay, at a Public Meeting held on 16th April, 1905 expressed its disapproval of any conversions being allowed, and are strongly opposed to any such conversion in the present times, and resolved henceforth not to admit even the children of Parsi fathers by alien mothers. (Ex. ‘F’)
5. Although conversion is permissible by religion, there are conditions a candidate must fulfil before becoming eligible for admission. It must first be satisfactorily established that the person is animated by a good object and actuated by pure intentions, i.e., he or she seeks admission out of religious convictions and no other consideration. And further, the candidate must be found fit in all other respects.
6. By such admission no harm should come to Zarthoshti Mazdiyasnans themselves.
7. Ceremonies essential are
(a) Naojote, (b) Barashnum, and (c) Naojote after Barashnum.
8. Only those who have gone through these three ceremonies are entitled to the full rights and privileges of a Zoroastrian.
Daver concluded- “For the reasons I have recorded above, I come to the conclusion that even if an entire alien-A Juddin-is duly admitted into the Zoroastrian religion after satisfying all conditions and undergoing all necessary ceremonies, he or she would not, as a matter of right, be entitled to the use and benefits of the Funds and Institutions now under the Defendants’ management and control; that these were founded and endowed only for the members of the Parsi community; and that the Parsi community consisted of,”
“1. Parsis who are descended from the original Persian emigrants, and who are born of both Zoroastrian parents, and who profess the Zoroastrian religion.”
(authors observation, Parsis have to show their ancestry from 1300 years to prove they are Parsis)
“2. The Iranis from Persia professing the Zoroastrian religion, who come to India, either temporarily or permanently”
(authors observation , no questions are asked regarding their ancestry.)
“3. and the children of Parsi fathers by alien mothers, who have been duly and properly admitted into the religion.”
(authors observation, illegitimate children of Parsi men with Dubra and other women)
This observation of Davers is flawed as with the same breath he is saying that a Parsi has to be born of 2 Parsi parents and then that the children of a Parsi father with an alien mother are Parsis. The first statement negates the second.
The children of Parsi fathers with alien mothers referred to by Justice Daver were, as explained by the judges, the illegitimate children of Parsi men with Dubra ladies.
At that point in time DNA analysis to prove paternity was not available. It was impossible for a man to prove beyond doubt that he had fathered the child. Children of Parsi women, being born out of a Parsi mother’s womb, were never doubted of being of Parsi descent.
“The Zoroastrian religion not only permits but enjoins conversion”. The judges had suggested a comprise-accept conversion with safeguards but it was not accepted by the lawyers. The discussion in court was regarding the rights of converts.
Petit vs Jeejeebhoy does not celebrate patriarchy as claimed by some but is a severe indictment of the immoral behaviour of men. It confirms the existence of an unacceptable social system where the sanctity of marriage vows was not maintained. It reluctantly accepts the illegitimate children of Parsi men as “some Parsi blood may flow in their veins.”
There is no reference to the legitimate children of intermarried couples as they did not exist at that point in time. This became a reality when the laws of the land were changed and the new Special Marriage Act was promulgated in 1954.
To be continued.
Some cartoons printed in the Parsi Punch about the Petit vs Jeejeebhoy case in 1908.
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