Parsis’ petitions to retain matrimonial court juries
Mumbai’s Parsis are divided in their opinion on whether the delegate system should continue
The Supreme Court is hearing a petition that questions the validity of Parsi matrimonial courts that follow a jury system.
Though the court observed that the country’s parliament would be a better platform to decide the issue, it has asked for the government’s view on the petition. The petitioner, who had earlier approached the Bombay high court seeking the dissolution of her marriage, said the procedure laid out under the Parsi Marriage and Divorce Act of 1938 made divorces a long and torturous exercise. According to her, the jury system made the procedure cumbersome, without any access to recourses such as mediation and settlement that are available to Hindu women under the family court system.
The petitioner said hearings in her case has been delayed because jury members — called delegates — have not been appointed. There are special matrimonial courts presided over by a high court judge at Kolkata, Chennai and Mumbai — though as Mumbai-based lawyer Armaity Engineer pointed out, these are not the only courts that hear Parsi matrimonial matters; district courts in Pune, Bengaluru and Surat also look at them. In the case of the high courts, the chief justice nominates a judge, who, aided by delegates, hears the dispute. Names of delegates are suggested by the Bombay Parsi Punchayet (BPP), the community’s largest representative body. The delegates — there are five though it was seven earlier — are selected by draw of lots. The parties in the divorce case can object to a delegate’s presence if they suspect his or her impartiality. The Bombay high court hears an average of 50 cases a year.
Parsis are divided in their opinion on whether the delegate system should continue. Advocate Cyrus Pooniwala, who represents applicants at the court, is of the opinion that the delegate system is outdated. “It is high time [that the jury should go]. Most matters, such as mutual content cases, do not require the jury anyway. Ultimately the decision is given by the court; why keep the jury?” asked Pooniwala.
Some community members said the delay in disposal of cases, rather than the justice system itself, was the problem. “I have seen people quoting medical reasons and taking an adjournment for five years. Why so many dates? The decision should be quick,” said Napeansea Road resident Viraf Kapadia, who served as a delegate at the matrimonial court in Mumbai between 1991 and 2011. “Why do they want to scrap the system? It is an attack on a minority community.”
To support his argument, Kapadia gives the example of a woman, an artist with two daughters, who got a divorce in 2012, but is still to get alimony. “She had to go to the Bombay high court with a contempt petition because the alimony was not paid,” said Kapadia. “The problem is with the slow judicial process. Why blame the Parsi matrimonial law?”
Lawyers said work at the court was exasperatingly slow. “The court, once it is convened, will hear cases for two or three days, but there are sessions when hardly any cases are heard. The jury sometimes hears one case for three days,” said Pooniwala. He added that delegates have often been accused of bias. “The jury consists of people who have no knowledge of the law. The Parsis are a small community and most people know each other. There could be bias,” said Pooniwala.
Engineer said she prefers the current system. “Because the delegates take a practical view of the situation; judges see the facts of the case. They opine accordingly. Their decision cannot be appealed and it ends there,” said engineer. “It is the only court, where if you file a case today, it can be heard the next day. There is no six months of waiting for the case to come up.”
In the past, the Parsis have rallied against any dilution of the jury’s power. In October 2004, the BPP had petitioned the court after a few cases were decided without consulting the jury. Since 2005, the jury’s advice is sought only in contested cases. A lawyer had told this reporter that the community discouraged divorce, considering their small numbers and unique laws.