The union government told the Supreme Court that the existing jury system to adjudicate matrimonial disputes, including divorce and child custody for Parsis, "needed to be retained,” reported The Times of India (ToI) on December 18, 2019. The "Parsi community is a special community forming part of Indian societal mosaic…it was felt necessary to protect their values, customs, beliefs and practices in the field of personal law. (Parsis), owing to their scarce numbers, also require to be protected by way of separate mechanism. A special law like the Parsi Marriage and Divorce Act (PMDA), 1936 for that small community, with an intelligibly different or unique structure, is permissible in law,” said the central government. The union government’s affidavit stated that the Act was a "pre-Constitutional legislation and was considered to conform (to) the customs of the Parsi community,” noted the news report.
Illustration by Manjula Padmanabhan
The government was responding to Naomi Sam Irani’s petition in the apex court that challenged several provisions of the PMDA (see "Divorce pains,” Parsiana, December 7, 2017). The Act provides for the constitution of special matrimonial courts in Bombay, Calcutta and Madras. The respective Chief Justices of the High Courts in these cities have powers to appoint a judge who, aided by five delegates, would decide alimony, maintenance as well as custody and maintenance for children and their education. The Parsi matrimonial court is perhaps the only one in the country to continue with the jury system that was abolished in the 1960s.
"These delegates for all practical purposes act like jury and the case is decided by majority decision. It is a fact that the Parsi chief matrimonial court sits only once or twice a year… In view of increase in divorce petitions, jury as a fact-finding body practically impedes speedy justice,” Irani had said in her request to the apex court to do away with the jury system, reported ToI. "The jury delegates adjudicate a divorce petition based on their personal notion of societal norms, morality and ethics, which may not be in sync with the principles of natural justice and the ethos and dynamics of society,” she had stated. According to Irani, the 1936 Act was "exasperatingly cumbersome, involving a system akin to jury decision and granted no access to mediation and settlement available to Hindu women under the family court system,” noted ToI.