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"The first duty of a jury is to try and save a marriage going through a bad phase for after all every relationship has problems,” commented a juror who had attended a five-day session of the Parsi Chief Matrimonial Court (PCMC) conducted in Bombay in September 2024. Counselling and mediation in early stages would help, believed another juror. Although it is only the contested cases that come up before the jury, during the last PCMC session no couple had been advised counselling as these divorce cases had been pending over many years with financial and property matters being the chief issues of contention.

On the recommendation of a distraught litigant, Parsiana revisited the PCMC after a span of 51 years, spoke to the jury delegates, leading matrimonial lawyers and a few litigants to understand how the system has been functioning since the introduction of divorce by mutual consent that seeks to make the process quicker, less painful and more affordable for the estranged couple.

These days, the majority of Parsi couples seeking an early exit from their marriage opt for divorce by mutual consent. Until recently, that was granted within a few months by the Bombay High Court (BHC) judge presiding over the PCMC once the registrar had verified the documents. The process has now slowed down because the present judge has "a different approach, believing that divorce is not for the asking. He sends couples to a court counsellor (in the PWD Building in the High Court complex). People are not happy with that. They are exasperated. They don’t want counselling,” observed senior advocate Armaity Khushrushahi who has been practicing matrimonial law for the last 50 years during which time she too has helped "quite a few couples to patch up their differences.”

Such well-meaning efforts by a judge, a jury or an advocate are frequently not favored by the litigants for now "there is no shame associated with divorce. Couples do not fight shy of admitting that they are not getting along so it is better they go their own way,” remarked Khushrushahi. Besides, females are "more independent now and often earning more than the guys. Why then would they tolerate a bad marriage unless there are kids involved in which case they may try to continue?” she asked rhetorically. 

There are around 20 contested Parsi divorce cases that are currently pending before the PCMC, the only instance where the jury system prevails in India. Some of them have divorce proceedings dragging for nearly two decades. A few of the litigants have crossed the age of 80 years or are nearing that milestone.  As feared a senior litigant, "Maiji G-O Go thasé tauhré nivéro avsé (the judgment will come at the same time as her death).” One lady, disillusioned with "the totally broken system,” did not want to divulge details while her case was sub judice but assured us that once the verdict is given she would give us "enough material to write a book!” Disputes over division of property and wealth alimony or custody of a child invariably take longer to resolve. 

Post the pandemic, the PCMC sessions from September 23 to 27, 2024 were the first time the contested cases were taken up for hearing again. Justice Abhay Ahuja was appointed as the presiding judge. The five members of the jury in attendance were retired naval officer Cmde Medioma Bhada, chartered accountant Farhad Hozdar, principal of Lady Engineer High School Errick Elavia, thespian and social activist Rumy Zarir, and counsellor Pearl Mistry. Barring Bhada, the rest were sitting as jury delegates for the first time. The Bombay Parsi Punchayet (BPP) recommends names of not more than 30 Parsi delegates after seeking their consent. They were then invited to the High Court in November 2023 when one of the court officials picked up slips in their presence based on which the current five were announced as the jury.

When Parsiana briefly visited Room 26A at the BHC, the PCMC sessions were in progress, hearing a matter that appeared to be pending for over a decade. The advocate was grilling the middle aged litigant in the witness box who had stayed away from his marital home on grounds of "physical cruelty.” "Was a police complaint filed (for the alleged assault)?... Was there a First Information Report?... Are you aware that a case for restitution of conjugal rights has been pending since 2013?” The couple’s dispute extended to ownership of some property for which a document in Gujarati had been submitted. When the advocate said she cannot read Gujarati, Ahuja asked the defendant to read it aloud saying he and the jury members are conversant with the Gujarati script. The defendant started explaining the contents of the document in English but Ahuja insisted that he read the Gujarati document verbatim.

The jury’s opinion was not sought on this matter as there were no facts to be ascertained. As specified under The Parsi Marriage and Divorce (Amendment) Act, 1988, matters concerning "interlocutory applications and proceedings; alimony and maintenance; custody, maintenance and education of children; matters and proceedings other than the regular hearing of cases” are for the judge to decide.

At the September 2024 PCMC sessions, the jury delegates were requested to give their verdict in two cases. In one instance the couple had married overseas and on their return to India had another Zoroastrian ceremony performed in Bombay. While one partner insisted that the laws of the Parsi Act should be applicable to them, the other partner refuted this. The jury opined that although one partner was a Parsi and another an Irani Zoroastrian, from the video clip showed to them the full marriage rites were not performed either according to the Parsi or Irani customs. The priest only prayed the Tandorosti for their well-being and there was no signing of the marriage certificate by the couple, their witnesses or the priests to validate the nuptials under the Parsi Act.

In yet another instance, where the man had shown no interest in meeting his wife and daughter for many years, had been named in fraud cases, and had not attended a single session of the divorce proceedings, the jury recommended that divorce should be granted ex parte so that the woman could make a new life for herself. 

Since High Court judges are pressed for time to hear contested Parsi matrimonial matters, when a case finally comes up for hearing, it is mostly brought to an end within a day-and-a-half of interrogations although some are delayed indefinitely. Earlier, when the PCMC "regularly met every six months, the backlog would be wiped out,” recalled Khushrushahi. She referred to the sessions under Justice S. M. Jhunjhunwala who unequivocally announced that no adjournments would be granted for he was determined to clear the 30 matters then pending before him.

  

  Photo: Jasmine D. Driver

Justifying a jury

While some litigants and advocates believe that the jury system slows down the process of delivering swift judgment, the majority of the jury delegates Parsiana spoke to believed they served a purpose. This matter was taken to the Supreme Court by Naomi Irani in 2017 who had applied for dissolution of her 11-year-old marriage under the PCMC a year prior but found that no jury members had been appointed and therefore requested the jury system be abolished (see "Divorce pains,” Events and Personalities, Parsiana, December 7, 2017). The Supreme Court had then agreed to examine the issue and sought the central government’s response. 

While the present jurors were informed that they would be serving a one-year term that will end in November 2024, one of them was of the view that the term should continue for three years so that the pentad that has studied the papers and heard the arguments in court could advise suitably instead of making the couple go through the same ordeal before another jury. "To ensure timely justice the PCMC should meet every three or four months,” believed a member. Yet another recommended that cases should be disposed of within two years instead of "exhausting the couples physically, mentally and financially.” There have been instances of a time lapse helping "the couple to reconcile for time is a very good healer,” believed one delegate who felt "quick divorce should be granted only in case of physical abuse… The jury system is more a blessing than a bane.” 

"Let’s not brush off the jury,” remarked senior matrimonial lawyer Sanober Nanavati, adding, "People have a wrong sense of the jury system and how it operates. The members are well read and well informed. In one instance the case papers constituted 1,000 pages!” 

Knowing of litigants who after waiting 18 years "have yet to see the light at the end of the tunnel,” matrimonial lawyer Taubon Irani believes, "There needs to be a system in place for a regular matrimonial court in the High Court… We need more sessions to be conducted with the jury. Jury members may need some kind of training to understand how important their role is.”

"A jury’s verdict is not appealable,” reminds Nanavati, even though decisions on issues of law or anything ancillary to that can be appealed before a bench. "All questions of law and procedure shall be determined by the presiding judge; but the decision on the facts shall be the decision of the majority of the delegates before whom the case is tried,” specifies the Act. 

Currently a judgment is awaited from a full bench (of three judges) Justices Mahesh Sonak, Burgess Colabawalla and Riyaz Chagla who recently completed hearing arguments for and against the appointment of a commissioner to record evidence of contested matters in the PCMC. The BPP as intervenors had appointed Nanavati who argued that "a commissioner is ultimately an advocate who does not have the power of a judge to suo moto put or object to a question, or to stop cross examination. The whole idea of a commission is to expedite matters. If the matter will come back to court, how will it help?” 

Since many people are under the impression that a Family Court which tries matrimonial suits of all communities (other than those married under the Parsi Act) functions efficiently, Nanavati asks, "Have you visited the Family Court? There are lakhs of pending cases who only get tareekh pé tareekh (one adjournment after another). If we go there it will be a disservice to the community. We are a peaceful lot, most of whom would like to end the acrimony and move on in life.” 

Settle amicably

For couples who have decided on divorce, availing of the "mutual consent” clause introduced by the Amended Act in 1988 is what most matrimonial lawyers advise. The legal fees depending on the seniority of lawyers may vary between Rs 50,000 to Rs 3,00,000. For contested cases it could be Rs 4,00,000.

Khushrushahi specified that she now only accepts briefs from litigants who want to end their marriage "in a decent manner through mutual consent and not hurl allegations” as happens in contested cases. "I personally have filed around six mutual consent petitions in a year,” stated Irani. When one of her clients sought to claim alimony from her husband, Irani advised her to forego the amount if she wanted to end the ordeal. Heeding this advice turned out to be in the best interest of all. 

"Much depends on the maturity of the parties. If you want to settle amicably, everything can be resolved but if you adopt a revengeful attitude even though there is nothing left in the fabric of your marriage,” it can be ruinous, points out Nanavati. The amended Act permits males to claim alimony but there have been no cases known of alimony being granted to them. 

"Women centric laws that are used as levers can often shake confidence in the institution of law,” observes Nanavati, adding, "People have lost sight of adjustment in a marriage. Women want equal rights. For a marriage to survive the highest equality women should expect is 49%. Men will always be at 51%. If you cannot accept that two percent difference, you are looking for trouble.” Granting joint custody of a child to the divorced parents is not a solution because they would "come back to court at every stage leading to more friction and battles.” Further, children who are the worst affected in a divorce, end up being "the biggest manipulators.” In divorce suits, "around 50% of marriages” appear to have broken down in the first year or two, has been Irani’s observation. 

Parsiana was unsuccessful in obtaining the count of divorces sanctioned under the Parsi Act although we approached the marriage registrar and clerk at the BHC and made enquiries with the BPP that earlier received this data from the High Court. 

When Parsiana had carried a comparative count of Parsi marriages and divorces between 1961 and 1992 (see "Divorce matters,” Events and Personalities, November 1992), there were 13,350 marriages as compared to 1,051 divorces, indicating that on an average eight percent of marriages end up in divorce. Nearly five decades ago when Parsiana had carried a cover story on Parsi divorces (see "The cultural alternative,” August 1973) there were 465 marriages and 37 divorces. With a decline in community numbers in Bombay (guesstimated to be under 40,000) as also in Parsi marriages (there were 86 in 2023), an increase in the average age at marriage (33 years for women and 36 years for men), and the count of interfaith marriages rising to 50% there is no knowing whether Parsi or interfaith marriages last longer.

The Parsi Marriage and Divorce (Amendment) Act, 1988