PART 3 OF EXCERPTS FROM THE HISTORY OF THE BOMBAY PARSI PANCHAYAT 1860-1960 BY SAPUR FAREDUN DESAI
This is Part 3 of Excerpts from the book History of the Bombay Parsi Panchayat by Sapur Faredun Desai. Excerpts are from pages 97-104 and pages 296-298.
The two Acts, Special Marriage Act of 1872, which was replaced by the Special Marriage Act of 1954 have caused a great deal of confusion in the Parsi community. Pg 97-104 and Pg 296-298 in the book History of the Bombay Parsi Panchayat 1860 to 1960 are dedicated to the clarifications given by senior lawyers on the following questions with reference to the act of 1872 and 1954.
For the Special Marriage Act of 1872 clarification was sought on:
“Does a Parsi male or female cease to be a Parsi or a Zoroastrian or both if he or she marries a non-Parsi under the provisions of the Special Marriage Act of 1872?”
For the Act of 1954 clarification was sought on:
“Whether a Parsi lady who marries a person who is not a Zoroastrian under the Special Marriage Act of 1954 ceases by reason of such marriage to be a Parsi though she continues to profess the Zoroastrian faith?
Excerpts from the book History of the Bombay Parsi Panchayat 1860-1960:
“Sir J. B. Kanga’s opinion:
Q1. “Does a Parsi male or female cease to be a Parsi or a Zoroastrian or both if he or she marries a non-Parsi under the provisions of the Special Marriage Act of 1872”
A1. “A Parsi male or female ceases to be a Parsi or Zoroastrian when he or she renounces the Zoroastrian religion. Under the Special Act it is necessary that the parties should not be Parsis. The Act is not applicable to Parsis. The condition precedent to the applicability of the Act is that a person should not profess any of the religions mentioned therein. It may therefore safely be taken that a Parsi who has married under that Act has ceased to be a Parsi. The marriage itself would be evidence to show that he has ceased to be a Parsi whether he is required to make a declaration or not. In the Dominion of India declaration under the Sec. 10 is necessary and is made. The declaration is a piece of evidence.
Q2. If the answer to the above question is in the affirmative, then is it necessary for the party to get his or her Navjote reperformed in order to be recognised again as a Parsi Zoroastrian or merely a declaration to the effect that he or she is a Zoroastrian is sufficient for the purpose.
A2. Yes. That ceremony is for declaration of faith. One who has ceased to follow the Parsi religion must undergo the Navjot ceremony. A declaration is not sufficient. I believe in the opinion of old Dasturs like Dastur Peshotan and Dastur Jamaspji even nine days Nahan was necessary in such cases. “(on the death of a spouse or divorce one may reconvert to the Parsi religion by performance of a navjote.).
Joint opinion of Sir J. B. Kanga and Sir Nusserwanji Engineer in 1956 re the Special Marriage Act of 1954.
Q1. “Whether a Parsi lady who marries a person who is not a Zoroastrian under the Special Marriage Act of 1954 ceases by reason of such marriage to be a Parsi though she continues to profess the Zoroastrian faith.”
A1. OPINION
“The question before the Court in XI Bom, L.R. (Petit vs Jeejeebhoy) was whether the founders of the various religious and charitable trusts for the benefit of Parsis such as Towers of Silence, Agiaries, etc. intended that the benefit of the religious institutions could be had by persons who were not born in the Parsi community and who professed a different religion at first but were subsequently converted to Zoroastrianism and were initiated into the Zoroastrian religion. The court came to the conclusion that the word ‘Parsi’ in those deeds of trust did not mean only Zoroastrians by religion but persons who also belonged to the Parsi Community or caste.
The question we are asked to consider in the present case was not before the Court in the case reported in XI Bom. L.R. The main question put to us is whether a Parsi lady who marries a person who is not a Zoroastrian under the Special Marriage Act 1954, ceases by reason of such marriage to be a Parsi although she continues to profess the Zoroastrian faith.
By being born in the Parsi community and having been initiated into the Zoroastrian religion by performing the Navjote Ceremony she became entitled to all the benefits of the institutions referred to above.
It being admitted that she continues to be a Zoroastrian even after her marriage with a non-Zoroastrian, she can only be deprived of the benefits of those institutions if it can be said that by reason of her marriage with a non-Zoroastrian she automatically went out of the community or caste as it has been called by Beaman J. in his judgment. In order to reach such a conclusion, the querists will have to prove the existence of a custom to that effect. It is common knowledge that there have been no precedents of this kind except the one instance mentioned in the instructions. We do not see how it will be possible for the querists to prove any such custom.
It cannot be denied that if a Parsi lady lives with a non-Zoroastrian as his wife but without going through the ceremony of a marriage she does not lose the benefit of those institutions.
One cannot shut one’s eyes to the radical change which has taken place in recent years in both political and social outlook. We are of opinion that it is not possible to legally prove the existence of a custom of the nature stated above.
But there is another serious difficulty in the way of denying the benefit of institutions like those mentioned above to a Parsi lady who contracts marriage with a non-Zoroastrian but who nevertheless continues to profess the Zoroastrian religion. On the 1st of November 1949, Bombay Act XLII of 1949 was enacted and came into force. The Act is called the Bombay Prevention of Excommunication Act, 1949. The words ‘community’ and ‘excommunication’ are defined in the Act as follows:
‘Community’ means a group the members of which are connected together by reason of the fact that by birth, conversion or the performance of any religious rite they belong to the same religion or religious creed and includes a caste or sub-caste.
‘Excommunication’ means the expulsion of a person from any community of which he is a member depriving him of rights and privileges which are legally enforceable by a suit of civil nature by him or on his behalf as such member.
“Explanation: For the purposes of this clause a right legally enforceable by a suit of civil nature shall include the right to office or property or to worship in any religious place or a right of burial or cremation, or notwithstanding the fact that the determination of such right depends entirely on the decision of the question as to any religious rites or ceremonies or rule or usage of a community.
“Section 3 provides as follows:
‘Notwithstanding anything contained in any law, custom or usage for the time being in force, to the contrary, no excommunication of a member of any community shall be valid and shall be of any effect.”
“In our opinion, to deny to a Parsi Zoroastrian lady the benefit of institutions of the kind mentioned above would amount to excommunication. The Act not only provides that such excommunication shall be void and of no effect but provides penal consequences if any person does any act which amounts to or is in furtherance of the excommunication of any member of a community.”
To summarise:
- These questions are different from those put to the court in 1908. “The question we are asked to consider in the present case was not before the Court in the case reported in XI Bom. L.R.”
- There is no religious reason to discriminate against intermarried men or women. The law in 1872 required a declaration of not professing any faith by both men and women. When the marriage ceased to exist, the men or women could reconvert to the religion through the performance of a navjote ceremony.
- The new Special Marriage Act of 1954 does not require any such declaration. An interfaith couple can marry and keep their individual religions. The law is applicable to both men and women.
- There is no ancient custom or law to discriminate between the rights of men and women in an interfaith marriage. Interfaith married couples did not exist before 1954. The Bombay Prevention of Excommunication Act 1949 expressly forbids it.
- There is no religious tenet to discriminate either. As recorded in the book, History of the Bombay Parsi Panchayat 1860 to 1960, the judges, the priests and scholars have expressed their opinion that conversion is a tenet of the religion. There is an injunction to convert those born in another faith.
One wonders what if Ratan Tata had not gone to court in 1905 to establish the rights of converts, would conversion be an accepted norm today as unanimously expressed by our Priests.
In reality some community members prefer to follow an opinion of a judge expressed in 1905 rather than follow the opinion of the priests in 1905, as recorded in the book History of the Bombay Parsi Panchayat 1860-1960.
SIR J. B. KANGA.
The post Part 3 of Excerpts from the book History of the Bombay Parsi Panchayat appeared first on Zoroastrians.net.