1. A novel point of law has arisen in this case and at the express desire of the delegates who regard the matter as of importance, to their community I place on record my decision upon the point. The matter arose in this way. The petitioner, a Parsi lady, is suing for a divorce from her husband and the first issue is whether it is proved that the petitioner was lawfully married to the respondent. It so happens that no extract from the register maintained under Sections 6 to 14 of Act XV of 1865 is forthcoming. The evidence is to the effect that a certificate was filled in as required by Section 6, but when it was taken to the respondent to be signed he tore it up and refused to affix his signature. In these circumstances the delegates have expressed some doubt as to whether the marriage can be held to be a valid marriage, and have requested me to place my opinion upon record.
2. Turning to the Parsi Marriage and Divorce Act, it will be seen that the requisites to. the validity of a Parsi marriage are laid down in Section 3. Those requisites may be stated briefly as follows:-(1) the absence of any degree of consanguinity or affinity prohibited among Parsis; (2) the solemnization of the Asirvad ceremony by a Parsi priest in the presence of two Parsi witnesses; and (3) in the case of Parsis under the age of twenty-one years of age, the consent of father or guardian given previously to the marriage. It will be observed that the Legislature in laying down these requisites for a valid marriage has not included . the registration of the marriage which is dealt with by subsequent sections of the Act. Turning to those sections, it will appear from Section 6 that immediately upon the solemnization of the marriage a certificate is to be given by the officiating priest in the form contained in the schedule to the Act. The wording of the section shows that the certificate is given after the marriage has been contracted and solemnized, and, therefore, the certificate is not in itself one of the requisites for a valid marriage. I need not deal here with the contents of such certificates. I have already explained how in this case it came about that no valid certificate was actually drawn up.
3. The further directions of the law upon this point are that the certificate is to be sent to the Registrar who makes an entry in his register. And Section 8, paragraph 2, lays down the effect of such an entry. It says that every such register shall be evidence of the truth of the statements therein contained. So far it is clear that what the Legislature has in mind is to secure a proper record of marriages duly solemnized between Parsis. It is impossible to suppose that if an entry in the register were a requisite to the validity of the marriage, the Legislature would have omitted to say so in Section 3 which is plainly considered to be exhaustive upon this point.
4. The further sections dealing with the' register, that is to say, Sections 9 to 14, lay down certain penalties with reference to certain acts or omissions connected with the certificate or the register. The object of these penalties is to secure that this most desirable record of marriages shall be properly maintained. As in the case of all enactments of this nature, it is necessary to provide a penalty for failure to comply with any formality, if such formality is regarded of prime importance. Otherwise, in the ordinary course of human conduct, these formalities will not be complied with, and the object of the Legislature will not be secured.;
5. Therefore, the conclusion at which I have arrived, and J do. not think that the point is really a point of any doubt, is that the absence of any entry in the register would not affect the validity of the marriage. The only way in which it would affect a suit under the Act would be as regards the manner of proof. Here, where there was no certificate, and, therefore, there was no entry in the register, it is plain that any other relevant evidence is admissible. How the case would stand had there been an entry in the register which was for some cause or other not available is a matter on which it is not necessary for me to pronounce any opinion in this case, though I may say that on proper proof that it was not possible to produce the register there would appear to be no difficulty as to the ad' mission of secondary evidence.