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Dhunbai Sorabji Palkhiwalla Vs. Sorabji Ardeshir Palkhiwalla - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberParsi Matrimonial Suit No. 6 of 1936
Judge
Reported inAIR1938Bom68; (1937)39BOMLR1143; 173Ind.Cas.373
AppellantDhunbai Sorabji Palkhiwalla
RespondentSorabji Ardeshir Palkhiwalla
Excerpt:
.....religion by defendant-burden of proof.;in order to obtain divorce under section 32(j) of the parsi marriage and divorce act, 1936, it is enough for one of the spouses to prove that the other has ceased to be a parsi, that is a parsi zoroastrian, during their married lives. the onus is on the party alleging the fact. it is not open to the defendant in such a case to show that he or she has become a parsi zoroastrian again, either at the time when the suit was filed, or at the time of the hearing.;the plaintiff must also satisfy the court that the requirements of section 35 of the act, so far as may be necessary, are fulfilled. - - the onus, as i have said before, lies upon the plaintiff, and in the discharge of that onus she is entitled to rely upon any admission which the..........husband praying that her marrige may be dissolved on the ground set out in section 32(j) of the parsi marriage and divorce act of 1936, namely, that her husband had ceased to be a parsi. the term 'parsi' is described in section 2(7) as meaning a parsi zoroastrian. in order, therefore, for the plaintiff to succeed she must show that her husband had ceased to be a parsi zoroastrian, and she must have also under the proviso to section 32 filed her suit for divorce on this ground within two years after she came to know of the fact that her husband had ceased to be a parsi. the defendant has counterclaimed for restitution of conjugal rights, alleging that he had never ceased to be a parsi, and that his wife had wrongfully deserted him, and without lawful cause ceased to cohabit with him.2......
Judgment:

B.J. Wadia, J.

1. The plaintiff has filed this suit against her husband praying that her marrige may be dissolved on the ground set out in Section 32(j) of the Parsi Marriage and Divorce Act of 1936, namely, that her husband had ceased to be a Parsi. The term 'Parsi' is described in Section 2(7) as meaning a Parsi Zoroastrian. In order, therefore, for the plaintiff to succeed she must show that her husband had ceased to be a Parsi Zoroastrian, and she must have also under the proviso to Section 32 filed her suit for divorce on this ground within two years after she came to know of the fact that her husband had ceased to be a Parsi. The defendant has counterclaimed for restitution of conjugal rights, alleging that he had never ceased to be a Parsi, and that his wife had wrongfully deserted him, and without lawful cause ceased to cohabit with him.

2. The burden of proof rests on the plaintiff. It is for her under Section 35 of the Act to satisfy the Court that the ground for granting relief exists, that no ground exists for withholding relief, that the act has neither been condoned nor connived at by her, that she and the defendant are not colluding together, and that there is no other legal ground why relief should not be granted. The Act does not show how and when a party to the marriage ceases to be a 'Parsi. Under the strict wording of Section 32(j) it is enough for one of the spouses to prove that the other spouse has ceased to be a Parsi Zoroastrian during their married lives. The Act does not say that the defendant should not only have ceased to be a Parsi, but must continue to be a nonjParsi till the date of the suit or for any particular period of time. It is not therefore, open to the defendant to show that he had become a Parsi Zoroastrian again, either when the suit was filed, or before the hearing. It is enough if the plaintiff shows that during their married life the defendant had ceased to follow the tenets and doctrines of the Zoroastrian religion. The onus, as I have said before, lies upon the plaintiff, and in the discharge of that onus she is entitled to rely upon any admission which the defendant may have made, provided it is clearly and unequivocally made, and has not been withdrawn nor satisfactorily explained.

3. A point may arise under this section whether a plaintiff is entitled to sue for divorce, if the defendant has ceased to be a Parsi Zoroastrian without embracing any other form of religion. He may have discarded the outer symbols of the Zoroastrian religion and ceased to believe in its doctrines and tenets altogether, and may have thus ceased to be a Parsi. It is arguable whether the intention of the legislature was to cover such a case too. But if the language used is a clue to such intention, the words of Section 32(j) are, in my opinion, sufficiently wide to cover the case of a Parsi Zoroastrian who has ceased to be such without having been converted to any other religion. I may point out to you, gentlemen-delegates, in this connection that under Section 10 of the Indian Divorce Act, IV of 1869, a wife may present a petition to the Court praying that her marriage may be dissolved inter alia on the ground that since the solemnization thereof her husband has exchanged his profession of Christianity for the profession of some other religion and gone through a form of marriage with another woman. Such or similar words are wanting in Section 32(j), All that is required is that the defendant should, after the solemnization of his or her marriage with the plaintiff, have ceased to be a Parsi Zoroastrian, and that the aggrieved party has brought the suit for divorce not later than two years after he or she came to ' know' of the fact that the defendant had ceased to be a Parsi. A mere doubt or suspicion on the part, of the plaintiff that the defendant had ceased to be a Parsi will not suffice.

4. In this particular case the plaintiff's allegation is that her husband had ceased to be a Parsi Zoroastrian and embraced the Mahomedan religion. It was argued by counsel on behalf of the husband that the wife had not been able to show that the husband had1 gone through a ceremony of conversion to the Mahomedan religion. It appears, however, gentlemen, that no particular ceremony of conversion to Islam is necessary. All that is necessary in order to embrace Islam is for the party to adopt and believe in the fundamental article of that faith, namely, that there is no God but God and Mahomed is His Prophet. That is pointed out by Sir Dinshah Mulla in his book on the Mahomedan Law, 10th edn., page 8, para 14, where it is stated that any person who professes the Mahomedan religion, that is, acknowledges (1) that there is but one God, and (2) that Mahomed is His Prophet, is a Mahomedan. Such a person may be a Mahomedan by birth or by conversion, and it is not necessary that he should observe any particular rites or ceremonies, or be an orthodox believer in that religion. Similarly it is stated in Ameer Ali's Mahomedan Law, 5th edn., Vol. II, p. 22, that any person who professes the religion of Islam, in other words, ' accepts the unity of God and the prophetic character of Mahomed' is a Moslem, and is subject to the Musul-man law, and that so long as he pronounces the Kalma of Tauhid, the Credo of Islam, it is not necessary for him to observe any of the rites and ceremonies, or to believe in any particular doctrines which imply Iman or belief. I would also refer you to the case of Abdpol Razack v. Aga Mahomed Jaffer Bindaneem (1894) L.R. 21 IndAp 56 where Lord Macnaghten points out that all that is necessary for an alien in religion to embrace the Mahomedan faith is to profess it, with or without conversion.

5. The question whether the defendant has ceased to be a Parsi Zoroastrian is a question of fact it is a serious question, and one of far-reaching importance, and the burden lies upon the plaintiff who alleges it to prove it strictly to your satisfaction according to the rules of the Indian Evidence Act.

6. [The decision of the delegates was that the defendant had ceased to be a Parsi. The learned Judge agreed with the decision and passed a decree dissolving the marriage between the parties and granted divorce to the plaintiff. The counterclaim of the defendant was dismissed.-Eds.]


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