SC Issues Notice On Petition Challenging "Jury System" Under Parsi Marriage And Divorce Act [Read Petition]

The Supreme Court, on Friday, issued notice to the Centre on a Petition challenging several provisions of the Parsi Marriage and Divorce Act, 1936.

A Bench comprising Justice Kurian Joseph and Justice Dipak Gupta was hearing a Petition filed by Ms. Naomi Sam Irani, who has challenged the Constitutional validity of Sections 18, 19, 20, 21, 24, 30, 32(a), 46, 47(b) and 50 of the Act. The Petition alleges that the impugned provisions are violative of Articles 14 and 21 of the Constitution of India.

Section 18 provides for constitution of "special courts" called "Parsi Chief Matrimonial Courts" to hear suits filed under the Act and Section 19 empowers the Chief Justice of the High Court to appoint five delegates who would aid the Judge of the Parsi Chief Matrimonial Courts. Further, as per the provisions, while all questions of law and procedure under the Act shall be determined by the Judge, the decision on facts shall be taken by a majority of the delegates.

Filed through Advocate Neela Gokhale, the Petition contends that these delegates, "are, for all practical purposes, a jury". It then goes on to call the provisions "archaic" and contends that it "acts as a practical impediment to the speedy delivery of justice".

Pointing out the possible repercussions of continuing with the provisions, it then submits, "...no specific qualification has been provided for a person to be a delegate save and except that the delegates have to be senior members of the community. Thus, the jury are bound to prejudicially affect the administration of justice as such delegates are vested with adjudicatory powers as it may not be feasible for persons of ordinary experience to deal with such subjects with legal accuracy. Thus, this leads to arbitrariness and the system is open to abuse."

The Petition further contends that the provisions relating to exclusive jurisdiction deprives the parties of the facilities provided by Family Courts. It contends, "...in view of the provisions of Section 18 and 19 of the PMDA in pursuance of which Special Courts namely Parsi Chief Matrimonial Courts and the Parsi District Matrimonial Courts have been established, the parties subject to this Act are compelled to subject themselves to the jurisdiction of these Spl. Courts and are deprived of the advantages of the Family Courts, which are otherwise available to all other persons...

...The Family Courts are well equipped with Child Care Centres, Professional Counselors etc. The Presiding Officers of the Family Courts are also additional District Judges who are trained and experienced in dealing with such matters."

It then demands that these provisions be read down to include the jurisdiction of the Family Courts as well.

Section 50 has also been challenged as being "completely gender biased and hence unconstitutional" as it lists non-consummation of a marriage due to natural causes as a ground for nullity of marriage. The Petition brings to the notice of the Court that other enactments list this as a ground for declaration of voidable marriage. It then explains, "Thus, the status of a person in whose favour decree is passed is that of a divorcee in PMDA, 1936. However, the status of the person in whose favour the decree is passed in other codified enactments remains that of a spinster/bachelor in the eyes of law."