This is Part 4 of Extracts from the book, History of the Bombay Parsi Panchayat 1860-1960 by Sapur Faredun Desai from Pg 33-39.
THE MAKING OF PARSI LAWS.
The Parsi Trust Conference of 1960-61 had suggested the need of a Uniform Code of Laws.
This chapter narrates that Parsis had no books regarding their ancient laws. They sent emissaries to Persia with questions on religion to bring back answers. These were called the Rivayats and continued for a period of 300 years. They had no ancient laws of their own.
Initially, they were governed by custom and usage. The panchayat would issue bandobasts or rules. Under British rule Parsis finally made their own personal laws. In 1865, the first Parsi Marriage and Divorce Act and in 1936 a new Parsi Marriage and Divorce Act was promulgated.
In the past the greatest offences were in the sphere of marriage with adultery and polygamy becoming rampant. The laws were made to control this behaviour. Interestingly, adultery was defined as sex with a woman other than a prostitute in the Parsi Marriage and Divorce Act of 1865.
In addition, there were no personal laws of inheritance and in 1837 the Chattels Real Act was promulgated.
From 1862 onwards the Panchayat became only custodians of properties in their hands to be handled as per the donors’ wishes.
Interestingly the Parsi Marriage and Divorce Act of 1936 does not make any reference to Justice Davers’ obiter dictum of 1908, describing a Parsi.
The law states that a Parsi is a Parsi Zoroastrian.
There is no special status given to men in the 1936 personal law of the Parsis. Men and women are treated equal.
In 1988 the law was amended to grant divorce if the defendant had ceased to be a Parsi by converting to another religion. Thus connecting the term Parsi only with religion not race or caste or lineage.
Most interestingly the Parsi Trust Conference of 1960-61 had suggested the need of a Uniform Code of Laws.
Excerpts from Chapter 6, PARSI LAWS, Pg. 33-39.
“EARLY LAWS
Early Ignorance:
When the forefathers of the present day Parsis left their fatherland Iran and came to India after peregrinations and halting in several places, enroute, nearly a hundred years, they presumably had no book of laws with them, not even the Vendidad (Videvdat), a treatise on civil and criminal law along with some religious and geographic matters thrown in.
Centuries later even when finding it difficult to get certain religious problems solved the Parsis of India had to send learned Parsis to Persia to get answers from the Dasturs of the fatherland. These are Revayets, which are the sayings of some wise and learned Dasturs of Iran.
Starting from scratch the Parsi forbears must have found it difficult to regulate their domestic, social and religious life. A few wise and learned men must have ruled the roast centuries ago in the towns of Gujarat, where they had settled. We notice such a repetition when the Parsis first came to Bombay and settled. As Karaka puts it, ‘the recognised leaders exercised some degree of control or command over their brethren in the regulation of these matters’, civil, domestic and religious’.
Apart from any religious offences the greatest offences began to appear on the surface in the beginning of the 19th century in the sphere of marriage. The Avesta enjoins monogamy. In the Vendidad (IV-47), while Ahura Mazda prefers a married man to a bachelor, and a person with children to one without.
Punchayet Powers on the Wane:
When the Bombay elders found that the infringement of the law of monogamic marriage was rather a rule than an exception, they at their famous meeting of 4th March 1818 passed certain ‘bundobusts’ prohibiting polygamy, except under certain circumstances disclosed to the Punchayet and expressly allowed by it after inquiry and after making provision of maintenance and obsequial expenses of the first wife. If anybody disobeyed, he would do so at the risk of ex-communication.
Though a healthy ‘bundobust’ it remained a dead letter or soon became one. Perhaps the elders ruled without fear or favour for some time, but the spirit began to wane with the rise of Parsi individualism referred to earlier and also accumulation of wealth in the hands of the nouveau riche, who could count and depend on their ability to pull the strings of influence with those dispensing justice
Early beginnings at Codification:
Cases of Hindus and Mahomedans were adjudicated according to their Shastric and Quranic laws but the Parsis for want of canonic laws had to go by ‘usages and customs’.
In 1811 in the Recorder’s Court in Bombay Sir James Mackintosh, on the evidence before him of usage, admitted the right of an illegitimate child to inheritance on intestacy (the case of Ghistas). There was a lot of hullaballoo, in the community. Such cases began to exercise the minds of the thinking Parsis, and more especially in matters of marriage and divorce and inheritance the Parsis began to be subject to English civil law.
Thus, there were two sets of laws, one for the Presidency town and another for mofussil, the latter with all its consequences of fluctuation, uncertainty and ultimate litigation and the former with all the inconvenience of a system of laws foreign to social usages and requirements in the matter of contract, inheritance and succession. Insofar as matrimonial matters were concerned there was no law.
In 1828 Mr. Borrodaile, on behalf of government, wrote to Surat elders, through whom the Bombay leaders got a copy, in which he said that as there was no special law governing them a lot of litigation had arisen and that they should meet and evolve a law.
He had sent a number of queries. The Parsis of Bombay and Surat slept over this inquiry. In 1833 Sir Herbert Compton, Chief Judge, Supreme Court offered to get a law for the Parsis passed by the British Parliament. The torpor was as inexcusable as inexplicable. But an earth-shaking event occurred to rouse them from their slumber.
Formerly the land and estate belonging to an intestate Parsi was equally divided between sons and daughters. The eldest son of a Parsi deceased demanded application of the British law of primogeniture and declaration of himself as the sole heir to his father’s estate to the detriment of others. The Parsis got alarmed and sent a petition to the Legislative Council on 20th November 1835 praying protection against this English law.
The Chattels Real Act, 1837 (Act IX) was passed. But it applied only to Bombay Parsis and only as far as the immoveable properties were concerned. This legislation kept the mofussil Parsis out of its purview.
The first meeting of The Parsi Law Association was held on 15th February 1862. It submitted a further draft code of betrothal, marriage and divorce occasioned by the case of Ardeshir Khurshedji v. Pirozbai. The Privy Council had decided that the Supreme Court of Bombay had no jurisdiction on its ecclesiastical side to entertain a suit brought by a Parsi wife against her husband for restitution of conjugal rights and maintenance, although on its civil side it might possibly administer some kind of remedy. This would turn out to be a costly and hazardous litigation, since there was no law to enforce such duties and obligations.
The Commission made a very exhaustive and highly analytic study of the evidence before it and recommended the passing of laws governing matrimonial and inheritance rights. In 1865 the two laws came into force, viz., The Parsi Marriage and Divorce Act 1865 (Act IV of 1865) and The Parsi Succession Act 1865 (Act No. XXI of 1865).
Scriptural Heritage:
Now a word about these two Acts.
The Parsi Marriage & Divorce Act: In the Avesta and other scriptural documents of the Parsis the position of women, more especially of a wife, has been extolled and there are several direct and indirect references which would go to show that there was the custom of monogamy amongst the early Zoroastrians. Dr Martin Haug, testifying before the Parsi Law Commission on the position of women in ancient times, had stated that it was much higher than what prevailed at the current time amongst the Zoroastrians.
During the times when the Parsi Punchayet was in its heyday punishments were given for second marriages in the lifetime of the undivorced spouse as already stated earlier but the Act of 1865 for the first time made it obligatory on a Parsi to have only one wife or husband during her or his life or until divorced. Under Iranian laws divorce could not be obtained unless cogent reasons were adduced, even if there were collusion.
The 1865 Act laid down grounds of divorce or nullity as insanity, non-consummation owing to physical causes, absence or desertion for seven years, adultery and cruelty. The said Act was based on the Matrimonial Courts Act (1857) of England.
In 1936 it was found desirable to make the code subserve the modern trend and the revised Act came into existence, sponsored by Sir Phiroze Sethna, one of the then Trustees, who was a member of the Imperial Legislative Assembly. While almost all other grounds of divorce remained the same, the period of desertion was brought down from seven to three years (and the Prostitutes exemption was removed). It may be stated here that the immediate result of this relaxation was the spurt in the filing of divorce proceedings. Indeed, incompatible marriages need not suffer now anymore and waste prime of life waiting for a long period.
The Trustees are also trying to get the Marriage and Divorce Act of 1936 amended. The Bill in this behalf was sent to Government in 1970 and it is still under consideration. Government is seeking opinion of several associations, bodies, etc. The third Parsi Trusts Conference of 1960-61 had made a suggestion for a uniform code of laws and the meetings were held under the Chairmanship of Mr. H. D. Banaji, a trustee (1958 to 1968).
Upto 1860 the Trustees could adjudge matrimonial, succession and adoption matters. Thereafter the practice went into disuse in anticipation of the laws in the offing. In fact, from 1862 onwards the Punchayet Trustees stopped pontificating on such social problems and became only custodians of properties in their hands to be handled as per the donors’ wishes.”
To be continued….
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