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Sarwar Merwan Yezdiar Vs. Merwan Rashid Yezdiar - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 268 of 1949
Judge
Reported inAIR1951Bom14; (1950)52BOMLR876; ILR1951Bom279
ActsParsi Marriage and Divorce Act, 1936 - Sections 2(7), 18 and 29
AppellantSarwar Merwan Yezdiar
RespondentMerwan Rashid Yezdiar
Advocates:T.G. Lobo, ;S.A. Desai, Advs., ;M.N. Mankar and Co. and ;C.G. Mahimkar and Lola & Co.
DispositionAppeal dismissed
Excerpt:
.....merely because he is a zoroastrian and his race is the same as that of the parsis in india. the parsi marriage and divorce act, 1936, does not apply to him, and, therefore, the parsi chief matrimonial court set up under the act has no jurisdiction over him.;section 29 of the parsi marriage and divorce act, 1936, merely indicates the proper court in which a suit can be brought and does not necessarily confer jurisdiction upon the court. that section by itself does not confer any jurisdiction where there is no jurisdiction in the court but merely postulates that the suits which are brought are suits with jurisdiction.;the plaintiff and the defendant, who was her husband, were iranians professing the zoroastrian faith. they were married in bombay shortly after their arrival in india from..........he is a zoroastrian, but he is not a parsi by descent from any of the persons who constituted the parsicommunity. the question that we have to consider is whether a foreigner pursuing the zoroastrian faith could by absorption into this community become a parsi. mr. lobo says that as the defendant belongs to the same originalstock as the parsis of india belong to and as he follows the same religion, therefore by his residence in bombay he has also become a parsi. we are unable to accept that contention. reference was made to the well known decision of sir dinshaw davar in sir dinshaw m.petit v. sir jamsetji jijibhai 11 bom. l. r. 85: 83 bom. 509 and the observations of sir dinshaw davar appearing at p. 128 were relied upon. sir dinahaw davar at that page says that the parsi community.....
Judgment:

Chagla, C.J.

1. This is an appeal from a judgment of Coyajee J., who held that the Court had no jurisdiction to try a matrimonial suit which was filed in the Parsi Chief Matrimonial Court over which he was presiding.Both the parties are Iranians professing the Zoroastrian faith. The plaintiff, who, is the wife, came to Bombay in 1940 from Persia, and the defendant came to Bombay in 1943, and they were married on 11-11-1944, The petition for divorce was filed on 2-7-1948, on the ground of cruelty. The defendant was registered as a foreigner and according to his written statement he was allowed to stay in India only under a special permit and was liable to be called upon to leave India at any time. The preliminary issue as to jurisdiction was argued before the learned Judge on the assumption that the defendant was not domiciled in India. The plaintiffs contention was that the fact that defendant was resident within jurisdiction was sufficient to confer jurisdiction upon the Court. The learned Judge took the view that the proper test to apply in order to determine whether the Court had jurisdiction or not was that of domicile and not of residence. The learned Judge took the view that although the construction of the marriage contract depended upon lex loci contractus, the rights and obligations arising under the marriage contract were governed by the lex domioilli, and as the defendant was not domiciled in India, but was domiciled in Persia, the suit filed by the plaintiff for divorce was not maintainable and the Court had no jurisdiction to try the suit.

2. Now it is not correct to urge that Section 29, Parsi Marriage and Divorce Act necessarily confers jurisdiction upon the Court. That section merely indicates the proper Court in which a suit can be brought. But the section postulates that the suits which are brought are suits with jurisdiction. That section by itself does not confer any jurisdiction where there is no jurisdiction in the Court. Therefore, independently of Section 29 we have to find whether the Court had jurisdiction to try the suit. There is a difficulty which presents itself to the plaintiff in limine, and that difficulty is as to whether the defendant is a Parsi Zoroastrian to whom the Act would apply, who could contract the marriage under the Parsi Marriage and Divorce Act or who could be sued in a Special Court set up by that Act with regard to obligations arising under the marriage. It is clear that Act III [3] of 1936, as its preamble shows, was intended to regulate marriages and divorce among Parsis. Marriage itself under that Act is defined as a marriage between Parsis whether contracted before or after the commencement of the Act. Mr. Lobo has drawn our attention to Section 1(2) of the Act which provides that the Act extends to the whole of British India, and in respect of Parsi subjects of His Majesty, to the wholeof India. The first part of this sub-sectiondeals with the territorial application of the Act. Legislature had territorial competence only to the extent of British India. It had also extra-territorial competence to the extent that the persons to whom the law was to beapplied were subjects of His Majesty, and therefore whereas in the first part this subsection deals with the territorial application of the Act, in the second part it deals with itsextra-territorial application. Mr. Lobo seeks to argue from the language used in this subsection that the Act contemplated Parsis in British India who might not necessarily be subjects of His Majesty or, in other words, according to him the Act was intended toapply to foreigners who were Parsis. Even if Mr. Lobo is right, it would be for him to satisfy us that a foreigner can be a Parsi Zoroastrian within the meaning of Act III [3] of 1936. It is well settled (and we shall pre-sently refer to the relevant authorities) that the expression Parsi has no religious connotations. That expression carries more territorial or racial connotations than religious connotations. The religion of every Parsi is the Zoroastrian religion; but it does not follow thatvery Zoroastrian is a Parsi. When we said that the religion of every Parsi is Zoroastrian, we should have qualified it by saying that even among Parsis there may be cases of conversion to Christianity or Islam, and although an individual Parsi may become a Christian or a Muslim, still he would be a Parsi and he would be known as a Parsi Christian or a Parsi Muslim. The origin of the Parsi community in India is that many centuries ago a section of Zoroastrians from Persia came to India and settleddown in India. Therefore the original race ofthe Parsis was the Persian race. That community lived in India, settled down in India, prospered in India and it became a closely knit community. It was that community that came to be known as the Parsi community. It is clear that the defendant does not belong to that closely knit community. He is a Zoroastrian, but he is not a Parsi by descent from any of the persons who constituted the Parsicommunity. The question that we have to consider is whether a foreigner pursuing the Zoroastrian faith could by absorption into this community become a Parsi. Mr. Lobo says that as the defendant belongs to the same originalstock as the Parsis of India belong to and as he follows the same religion, therefore by his residence in Bombay he has also become a Parsi. We are unable to accept that contention. Reference was made to the well known decision of Sir Dinshaw Davar in Sir Dinshaw M.Petit v. Sir Jamsetji Jijibhai 11 Bom. L. R. 85: 83 Bom. 509 and the observations of Sir Dinshaw Davar appearing at p. 128 were relied upon. Sir Dinahaw Davar at that page says that the Parsi community consists of Parsis who are descended from the original Persian emigrants, and who are born of both Zoroastrian parents, and who profess the Zoroastrian, religion, the Iranies from Persia professing Zoroastrian religion, who come to India, either temporarily or permanently, and the children of Parsi fathers by alien mothers who have been duly and properly admitted into the religion. Now, in the first place this observation of Sir Dinshaw Davar, undoubtedly a very great authority on Parsi law--is an obiter because the question that he and Beaman J., had to consider in that case was whether by conversion to the Zoroastrian faith a person could become a Parsi. It is difficult to understand, with very great respect to Sir Dinshaw Davar, how an Iranian who temporarily comes to India can become a Parsi. If being a Parsi is being a member of a particular race, then by mere temporary residence in India an Iranian cannot change his race. Is it suggested that an Iranian while he remains in India is a Parsi and as soon as he leaves India and goes to Persia he ceases to be a Parsi? Even if being a Parsi merely means belonging to a community pursuing a particular faith and residence in a particular country, the residence that would be required of a person before he can call himself a Parsi would be of a sufficiently long duration and not merely a temporary duration. In our opinion, it must necessarily involve a change, of domicile so that it may be that if an Iranian coming from Persia changes his domicile and becomes an Indian subject as he belongs to the same race as the Parsis originally belonged to, he may be considered as a Parsi. But it is impossible to accept Mr. Lobo's contention that an Iranian who temporarily resides in India, who is registered as a foreigner, whose domicile continues to be Persian domicile becomes a Parsi merely because he is a Zoroastrian and his race is the same as that of the Parsis in India. If that contention were sound, it is difficult to understand why all the Zoroastrians in Persia are not Parsis. They follow the same, religion ; their race is the same and yet it has never been suggested that that is the true position. Therefore, domicile in India must be at least a necessary condition of an Iranian becoming a Parsi by his residence in this country. Really the question that would arise would be whether such an Iranian has been absorbed into the Parsi community, and whether he would be absorbed immediately on domicile orafter he and his descendants have remained in this country for a certain period may also arise for decision. As a matter of fact, it is open to argument that the Parsi community cannot be increased by absorption, and in order to be a Parsi you have to be born a Parsi or you may be a Parsi as the child of an inter-marriage where the father is a Parsi. The Privy Council had to consider this very question in Saklat v. Bella 28 Bom. L. R. 161 : A. I. R. 1925 P.C. 298. Their Lordships referred to the decision in Sir Dinshaiv M. Petit v. Sir Jamsetji Jijibhai 11 Bom. L. R. 85 ; 33 Bom. 509 and they expressed the opinion that the judgment in the Bombay case travelled over much ground, indeed much unnecessary ground, and then at p. 169 their Lordships stated that Parsis were racial Parsis or people deemed after a long lapse of ages to be racial Parsis. This opinion seems to suggest as if the Privy Council emphasised the fact that a Parsi could be a Parsi only by birth and could not be a Parsi by absorption. We might point out that in this case also, as in the Bombay case, the only question was whether conversion to Zoroastrianism could result in the person converted becoming a Parsi and therefore the question that we have to consider did not arise directly for decision in either of these two cases. But fortunately in the case before us it is unnecessary to decide the larger question as to whether an, Iranian by being domiciled in India could become a Parsi. We are only concerned with the narrow question, the case of a man who is a foreigner, who is not domiciled and who only happens to be an Iranian following the Zoroastrian religion. In our opinion in the case before us clearly the defendant is not a Parsi. If he is not a Parsi, the Parsi Marriage and Divorce Act does not apply to him. He cannot be married under that Act, and the Parsi Chief Matrimonial Court set up under that Act can have no jurisdiction over him.

3. It is unnecessary for us to express any opinion as to whether the marriage which was contracted by the parties is a valid marriage. It would depend upon whether the marriage was valid according to Zoroastrian rites, both the parties being Zoroastrians. But if the marriage was not valid, the plaintiff is not without remedy because it is open to her to agitate that question on the Original Side of this Court. Even if the marriage was valid, again the plaintiff is not without a remedy. Because if cruelty is a ground for divorce according to the law in Persia, then it would be open to her to file a suit for divorce on the Original Side of the High Court. This Court would have jurisdiction to try such a suit because the defendant isresident in Bombay, The difficulty in the plaintiff's way was that she wanted her suit to be tried by a Special Court and not by the High Court and that Special Court had only jurisdiction to try cases between Parsis and not between a Parsi and a non-Parsi or between non-Parsis. The result is that, in our opinion the learned Judge was right in coming to the conclusion that ho had no jurisdiction to try the suit.

4. The result is the appeal fails and must-be dismissed. No order as to costs.


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