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Parsi Marriage and Divorce Act under scrutiny [Read Petition]

The Supreme Court bench of Justices Kurian Joseph and Amitava  Roy, on Friday, was torn between the prayer to examine the relevance of a law enacted before Independence, and its obligation to restrain itself from entering the domain of Parliament.

The prayer was to declare the provisions of the Parsi Marriage and Divorce Act, 1936, as ultra-vires of the Constitution, and as violative of the fundamental rights of persons who are subjected to the Act, because of their birth to Parsi parents.  Alternatively, the petitioner sought the Court’s indulgence to read down the provisions of the Act to include the jurisdiction of the Family Courts in place of the Parsi Chief Matrimonial Court and the Parsi District Matrimonial Court.

The petition was filed by Naomi Sam Irani, aged 33, whose husband has filed a petition for divorce under the Act, alleging cruelty and desertion. The petition has been pending in the Bombay High Court for the past two years, because the Government has not appointed five Parsi delegates to take part in the adjudication proceedings, as required under the Act. Naomi Irani is aggrieved that because of this requirement, she has been deprived of the advantage of early resolution of marital dispute, which is her fundamental right. The delegates, for all practical purposes, constitute a Jury, although the Jury system stands abolished in India, many years ago, she has claimed.

Citing various provisions in the Act, which are discriminatory to Parsi women, Irani’s counsel, Neela Gokhale, told the bench on Friday, that none of the personal laws of other religions have similar provisions. She also sought transfer of the pending petition in Bombay High Court in Irani’s case, to the Family Court in Bandra, Mumbai.

The petitioner’s counsel, Neela Gokhale, persuaded the bench to consider her client’s prayer, because she was inspired by the Supreme Court’s recent judgment invalidating the instantaneous triple talaq in Islam.

The bench then requested the ASG, A. N. S. Nadkarni, to seek the views of the Centre in the matter, without issuing a formal notice.

The case is to be listed again before the bench on December 1.

Read the petition filed by Naomi Sam Irani below:

Read the Order below:

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