The Parsi Marriage and Divorce Act, 1936

An Act to amend the law relating to marriage and divorce among Parsis.

ACT NO. III OF 1936

23rd April, 1936

Sections

An Act to amend the law relating to marriage and divorce among Parsis. WHEREAS it is expedient to amend the law relating to marriage and divorce among Paris; It is hereby enacted as follows:-

Section 1. Short title, extend and commencement

(1) This Act may be called the Parsi Marriage and Divorce Act, 1936.

(2) It extends to the whole of Bangladesh.

(3) It shall come into force on such date as the Government may, by notification, in the official Gazette, appoint.

Section 2. Definitions

In this Act, unless there is anything repugnant in the subject or context,-

(1) "Chief Justice" includes senior Judge;

(2) "Court" means a Court constituted under this Act;

(3) to "desert", together with its grammatical variations and cognate expressions, means to desert the other party to a marriage without reasonable cause and without the consent, or against the will of such party;

(4) "grievous hurt" means-

(a) emasculation;

(b) permanent privation of the sight of either eye;

(d) privation of any member or joint;

(e) destruction or permanent impairing of the powers of any member or joint;

(f) permanent disfiguration of the head or face; or

(g) any hurt which endangers life;

(5) "husband " means a Parsi husband;

(6) "marriage" means a marriage between Parsis whether contracted before or after the commencement of this Act;

(7) a "Parsi" means a Parsi Zoroastrian;

(8) "priest" means a Parsi priest and includes Dastur and Mobed; and

(9) "wife" means a Parsi wife.

Section 3. Requisites to validity of Parsi marriages

No marriage shall be valid if-

(a) the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I; or

(b) such marriage is not solemnized according to the Parsi form of ceremony called "Ashirvad" by a priest in the presence of two Parsi witnesses other than such priest; or

(c) in the case of any Parsi (whether such Parsi has changed his or her religion or domicile or not) who has not completed the age of twenty-one years, the consent of his or her father or guardian has not been previously given to such marriage.

Section 4. Remarriage when unlawful

(1) No Parsi (whether such Parsi has changed his or her religion or domicile or not) shall contract any marriage under this Act or any other law in the lifetime of his or her wife or husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolved, and, if the marriage was contracted with such wife or husband under the Parsi Marriage and Divorce Act, 1865, or under this Act, except after a divorce, declaration or dissolution as aforesaid under either of the said Acts.

(2) Every marriage contracted contrary to the provisions of sub-section (1) shall be void.

Section 5. Punishment of bigamy

Every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or husband or without his or her marriage with such wife or husband having legally been declared null and void or dissolved, shall be subject to the penalties provided in section 494 and 495 of the Penal Code for the offence of marrying again during the lifetime of a husband or wife.

Section 6. Certificate and registry of marriage

Every marriage contracted under this Act shall, immediately on the solemnization thereof, be certified by the officiating priest in the form contained in Schedule II. The certificate shall be signed by the said priest, the contracting parties, or their fathers or guardians when they shall not have completed the age of twenty one years and two witnesses present at the marriage and the said priest shall thereupon send such certificate together with a fee of two Taka to be paid by the husband to the Registrar of the place at which such marriage is solemnized. The Registrar on receipt of the certificate and fee shall enter the certificate in a register to be kept by his for that purpose and shall be entitled to retain the fee.

Appointment of Registrar

¹7. For the purposes of this Act, the Government shall appoint such Registrar or Registrars as it may deem fit.

Section 8. Marriage register to be open for public inspection

The register of marriages mentioned in section 6 shall, at all reasonable times be open for inspection and certified extracts therefrom shall, on application, be given by the Registrar on payment to him by the applicant two of Taka for each such extract. Every such register shall be evidence of the truth of the statements therein contained.

Section 9. Copy of certificate to be sent to Registrar-General of Births, Deaths and Marriages

²The Registrar shall, at such intervals as the Government from time to time directs send to the Registrar-General of Births, Deaths and Marriages ³* * * a true copy certified by him in such form ⁴as the Government from time to time prescribes, of all certificates entered by him in the said register of marriages since the last of such intervals.

Section 10. Registration of divorces

When a Court passes a decree for divorce, nullity or dissolution, the Court shall send a copy of the decree for registration to the Registrar of Marriages within its jurisdiction appointed under section 7; the Registrar shall enter the same in a register to be kept by him for the purpose, and the provisions of Part II applicable to the Registrars and registers of marriages shall be applicable, so far as may be, to the Registrars and registers of divorces and decrees of nullity and dissolution.

Section 11. Penalty for solemnizing marriage contrary to section 4

Any priest knowingly and wilfully solemnizing any marriage contrary to and in violation of section 4 shall, on conviction thereof, be punished with simple imprisonment for a term which may extend to three months, or with fine which may extend to two hundred Taka, or with both.

Section 12. Penalty for priest's neglect of requirements of section 6

Any priest neglecting to comply with any of the requisitions affecting him contained in section 6 shall, on conviction thereof, be punished for every such offence with simple imprisonment for a term which may extend to three months, or with fine which may extend to one hundred Taka, or with both.

Section 13. Penalty for omitting to subscribe and attest certificate

Every other person required by section 6 to subscribe or attest the said certificate who shall wilfully omit or neglect so to do, shall, on conviction thereof, be punished for every such offence with a fine not exceeding one hundred Taka.

Section 14. Penalty for making, etc., false certificate

Every person making or signing or attesting any such certificate containing a statement which is false, and which he either knows or believes to be false, shall be published with simple imprisonment for a term which may extend to three months, or with fine which may extend to one hundred Taka, or with both; and if the act amounts to forgery as defined in the Penal Code, then such person shall also be liable, on conviction thereof, to the penalties provided in section 466 of the said Code.

Section 15. Penalty for failing to register certificate

⁵The Registrar failing to enter the said certificate pursuant to section 6 shall be punished with simple imprisonment for a term which may extend to one year, or with fine which may extend to one thousand Taka, or with both.

Section 16. Penalty for secreting, destroying or altering register

Any person secreting, destroying, or dishonestly or fraudulently altering the said register in any part thereof, shall be punished with imprisonment of either description as defined in the Penal Code for a term which may extend to two years, or if he be ⁶the Registrar, for a term which may extend to five years and shall also be liable to fine which may extend to five hundred Taka.

Section 17. Formal irregularity not to invalidate marriage

No marriage contracted under this Act shall be deemed to be invalid solely by reason of the fact that it was not certified under section 6, or that the certificate was not sent to the Registrar, or that the certificate was defective, irregular or incorrect.

Section 18. Constitution of Special Courts under the Act

For the purpose of hearing suits under this Act, a special Court shall be constituted in such places ⁷as the Government may think fit.

Section 19. [Omitted]

[Omitted by the Adaptation of Central Acts and Ordinances Order, 1949.]

Section 20. Parsi District Matrimonial Courts

Every Court so constituted shall be entitled the Parsi District Matrimonial Court of the place at which it is constituted. Subject to the provisions contained in section 21, the local limits of the jurisdiction of such Court shall be conterminous with the limits of the district in which it is held. This judge of the principal Court of original civil jurisdiction at such place shall be the judge of such Matrimonial Court, and in the trial of cases under this Act he shall be aided by ⁸* * * delegates.

Section 21. Power to alter territorial jurisdiction of District Courts

The Government may from time to time alter the local limits of the jurisdiction of any Parsi District Matrimonial Court, and may include within such limits any number of districts under its government.

Section 22. [Omitted]

[Omitted by the Adaptation of Central Acts and Ordinances Order, 1949.]

Section 23. Court seals

A seal shall be made for every Court constituted under this Act, and all decrees and orders and copies of decrees and orders of such Court shall be sealed with such seal, which shall be kept in the custody of the presiding judge.

Appointment of delegates

⁹24.(1) The Government shall appoint persons to be delegates to aid in the adjudication of cases arising under this Act after giving the local Parsis an opportunity of expressing their opinion in such manner as it may deem fit.

(2) The person so appointed shall be Parsis and their names shall be published in the official Gazette.

Section 25. Power to appoint new delegates

The appointment of a delegate shall be for ten years; but he shall be eligible for reappointment for the like term or terms. Wherever a delegate shall die, or have completed his term of office, or be desirous or relinquishing his office, or refuse or become in capable or unfit to act or cease to be a parsi, or be convicted of an offence under the Penal Code or other law for the time being in force, or be adjudged insolvent, then and so often the Government may appoint any person being a Parsi to be a delegate in his stead; and the name of the person so appointed shall be published in the official Gazette.

Section 26. Delegates to be deemed public servants

All delegates appointed under this Act shall be considered to be public servants within the meaning of the Penal Code.

Section 27. Selection of delegates under section 20 to be from those appointed under section 24

The delegates selected under section 20 to aid in the adjudication of suits under this Act, shall be taken under the orders of the presiding judge of the Court in due rotation form the delegates appointed by the Government under section 24:

Provided that each party to the suit may, without cause assigned challenge any three of the delegates attending the Court before such delegates are selected and no delegate so challenged shall be selected.

Section 28. Practitioners in Matrimonial Courts

All legal practitioners entitled to practice in ¹⁰the High Court Division shall be entitled to practice in any Court constituted under this Act, and all legal practitioners entitled to practice in a District Court shall be entitled to practice in any Parsi District Matrimonial Court constituted under this Act.

Section 29. Court in which suits to be brought

(1) All suits instituted under this Act shall be brought in the Court within the limits of whose jurisdiction the defendant resides at the time of the institution of the suit.

(2) When the defendant shall at such time have left Bangladesh such suit shall be brought in the Court at the place where the plaintiff and defendant last resided together.

(3) In any case, whether the defendant resides in Bangladesh or not, such suit may be brought in the Court at the place where the plaintiff resides or at the place where the plaintiff and the defendant last resided together, if such Court, after recording its reasons in writing, grants leave so to do.

Section 30. Suits for nullity

In any case in which consummation of the marriage is from natural causes impossible, such marriage may, at the instance of either party thereto, be declared to be null and void.

Section 31. Suits for dissolution

If a husband or wife shall have been continually absent from his or her wife or husband for the space of seven years, and shall not have been heard of as being alive within that time by those persons who would have naturally heard of him or her, had he or she been alive, the marriage of such husband or wife may, at the instance of either party thereto, be dissolved.

Section 32. Grounds for divorce

Any married person may sue for divorce on any one or more of the following grounds, namely:-

(a) that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it;

(b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit:

Provided that divorce shall not be granted on this ground unless the plaintiff (1) was ignorant of the fact at the time of the marriage, and (2) has filed the suit within three years from the date of the marriage;

Provided that divorce shall not be granted on this ground unless (1) the plaintiff was at the time of the marriage ignorant of the fact alleged, (2) the suit has been filed within two years of the date of marriage, and (3) marital intercourse has not taken place after the plaintiff came to know of the fact;

(d) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence:

Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact;

(e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to submit herself to prostitution:

Provided that divorce shall not be granted on this ground if the suit has been filed more than two years (i) after the infliction of the grievous hurt, or (ii) after the plaintiff came to know of the infection, or (iii) after the last act of compulsory prostitution;

(f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Penal Code:

Provided that divorce shall not be granted on his ground unless the defendant has prior to the filing of the suit undergone at least one year's imprisonment out of the said period;

(g) that the defendant has deserted the plaintiff for at least three years;

(h) that a decree or order for judicial separation has been passed against the defendant, or an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for three years or more since such decree or order;

(i) that the defendant has failed to comply with a decree for restitution of conjugal rights for a year or more; and

(j) that the defendant has ceased to be a Parsi:

Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact.

Section 33. Joining of co-defendant

In every such suit for divorce on the ground of adultery, the plaintiff shall, unless the Court shall otherwise order, make the person with whom the adultery is alleged to have been committed a co-defendant, and in any such suit by the husband the Court may order the adulterer to pay the whole or any part of the costs of the proceedings.

Section 34. Suits for judicial separation

Any married person may sue for judicial separation on any of the grounds for which such person could have filed a suit for divorce, or on the ground that the defendant has been guilty of such cruelty to him or her or their children, or has used such personal violence, or has behaved in such a way as to render it in the judgment of the Court improper to compel him or her to live with the defendant.

Section 35. Decrees in certain suits

In any suit under section 30, 31, 32 or 34, whether defended or not, if the Court be satisfied that any of the ground set forth in those sections for granting relief exist, that none of the grounds therein set forth for withholding relief exist and that-

(a) the act omission set forth in the plaint has not been condoned;

(b) the husband and wife are not colluding together;

(d) (save where a definite period of limitation is provided by this Act) there has been no unnecessary or improper delay in instituting the suit; and

(e) there is no other legal ground why relief should not be granted;

then and in such case, but not otherwise, the Court shall decree such relief accordingly.

Section 36. Suit for restitution of conjugal rights

Where a husband shall have deserted or without lawful cause ceased to cohabit with his wife, or where a wife shall have deserted or without lawful cause ceased to cohabit with her husband, the party so deserted or with whom cohabitation shall have deserted or without lawful cause ceased to cohabit with her husband, the party so deserted or with whom cohabitation shall have so ceased may sue for the restitution of his or her conjugal rights and the Court, if satisfied of the truth of the allegations contained in the plaint, and that there is no just ground why relief should not be granted, may proceed to decree such restitution of conjugal rights accordingly.

Section 37. Counter-claim by defendant for any relief

In any suit under this Act, the defendant may make a counter-claim for any relief he or she may be entitled to under this Act.

Section 38. No suit to be brought to enforce marriage or contract arising out of marriage when husband is under sixteen or wife under fourteen years

Notwithstanding anything hereinbefore contained, no suit shall be brought in any Court to enforce any marriage or any contract connected with or arising out of any marriage, if, at the date of the institution of the suit, the husband shall not have the age of sixteen years, or the wife shall not have completed the age of fourteen years.

Section 39. Alimony pendente lite

In any suit under this Act if the wife shall not have an independent income sufficient for her support and the necessary expenses of the suit, the Court, on the application of the wife, may order the husband to pay her monthly or weekly during the suit such sum not exceeding one-fifth of her husband's net income as the Court, considering the circumstances of the parties, shall think reasonable.

Section 40. Permanent alimony

(1) The Court may, if it shall think fit at the time of passing any decree under this Act or subsequently thereto on application made to it for the purpose, order that the husband shall while the wife remains chaste and unmarried,-

(a) to the satisfaction of the Court, secure to the wife such gross sum or such monthly or periodical payment of money for a term not exceeding her life as, having regard to her own property, if any, her husband's ability and the conduct of the parties, shall be deemed just, and for that purpose may require a proper instrument to be executed by all necessary parties and suspend the pronouncing of its decree until such instruments shall have been duly executed, or

(b) make such monthly payments to the wife for her maintenance and support as the Court may think reasonable.

In case any such order shall not be obeyed by her husband it may be enforced in the manner provided for the execution of decrees and orders under the Code of Civil Procedure, 1908, and further the husband may be sued by any person supplying the wife with necessaries during the time of such disobedience for the price of such necessaries.

(2) The Court, if satisfied that there is a change in the circumstances of either party at any time, may at the instance either party vary, modify or rescind such order in such manner as the Court may deem just.

(3) Where an order for alimony or maintenance in favour of a wife has been mad either under the provisions of the Parsi Marriage and Divorce Act, 1865, or under the provisions of this Act, the Court, if satisfied that the wife has remarried or has not remained chaste, shall vary or rescind the order.

Section 41. Payment of alimony to wife or to her trustee

In all cases in which the Court shall make any decree or order for alimony it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court may seem expedient, and may from time to time appoint a new trustee, if for any reason it shall appear to the Court expedient so to do.

Section 42. Disposal of joint property

In any suit under this Act the Court may make such provisions in the final decree as it may deem just and proper with respect to property presented at or about the time of marriage which may belong jointly to both the husband and wife.

Section 43. Suits may be heard with closed doors

In every suit preferred under this Act, the case shall be tried with closed doors should such be the wish of either of the parties.

Section 44. Validity of trial

Notwithstanding anything contained in section 19 or section 20, where in the case of a trial in a Parsi Matrimonial Court not less than five delegates have attended throughout the proceedings, the trial shall not be invalid by reason of the absence during any part thereof of the other delegates.

Section 45. Provisions of Civil Procedure Code to apply to suits under the Act

The provisions of the Code of Civil Procedure, 1908, shall, so far as the same may be applicable, apply to proceedings in suits instituted under this Act including proceedings in execution and orders subsequent to decree.

Section 46. Determination of questions of law and procedure and of fact

In suits under this Act all questions of law and procedure shall be determined by the presiding judge; but the decision on the facts shall be the decision of the majority of the delegates before whom the case is tried:

Provided that, where such delegates are equally divided in opinion, the decision on the facts shall be the decision of the presiding judge.

Section 47. Appeal to High Court Division

An appeal shall lie to the ¹¹the High Court Division from-

(a) the decision of any Court established under this Act, on the ground of the decision being contrary to some law or usage having the force of law, or of a substantial error or defect in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits, and on no other ground; and

(b) the granting of leave by any such Court under sub-section (3) of section 29:

Provided that such appeal shall be instituted within three calendar months after the decision appealed from shall have been pronounced.

Section 48. Liberty to parties to marry again

When the time hereby limited for appealing against any decree granting a divorce or annulling or dissolving a marriage shall have expired, and no appeal shall have been presented against such decree, or when any such appeal shall have been dismissed, or when in the result of any appeal a divorce has been granted or a marriage has been declared to be annulled or dissolved, but not sooner, it shall be lawful for the respective parties thereto to marry again, as if the prior marriage had been terminated by death.

Section 49. Custody of children

In any suit under this Act, the Court may from time to time pass such interim orders and make such provisions in the final decree as it may deem just and proper with respect to the custody, maintenance and education of the children under the age of sixteen years, the marriage of whose parents is the subject of such-suit, and may, after the final decree upon application, by petition for this purpose, make, revoke, suspend or vary from time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such final decree or by interim orders in case the suit for obtaining such decree were still pending.

Section 50. Settlement of wife's property for benefit of children

In any case in which the Court shall pronounce a decree divorce or judicial separation for adultery of the wife, if it shall be made to appear to the Court that the wife is entitled to any property either in possession or reversion, the Court may order such settlement as it shall think reasonable to be made of any part of such property, not exceeding one-half thereof, for the benefit of the children of the marriage or any of them.

Rule making power the Supreme Court, etc.

¹²51.(1) The Supreme Court shall have rule-making power in respect of all Courts constituted under this Act in the same manner as it has over and in respect of other Courts under Article 107 of the Constitution of the People's Republic of Bangladesh.

(2) The High Court Division shall have superintendence over all Courts constituted under this Act subject to its appellate jurisdiction in the same manner as it has over other Courts under Article 109 of the Constitution of the People's Republic of Bangladesh.

Section 52. Applicability of provisions of the Act

(1) The provisions of this Act shall apply to all suits to which the same are applicable whether the circumstances relied on occurred before or after the passing of this Act, and whether

any decree or order referred to was passed under this Act or under the law in force before the passing of this Act, and where any proceedings are pending in any Court at the time of the commencement of this Act, the Court shall allow such amendment of the pleadings as may be necessary as the result of the coming into operation of this Act.

(2) A Parsi who has contracted a marriage under the Parshi Marriage and Divorce Act, 1865 or under this Act, even though such Parsi may change his or her religion or domicile, so long as his or her wife or husband is alive and so long as such Parsi has not been lawfully divorced from such wife or husband or such marriage has not lawfully been declared null and void or dissolved under the decree of a competent Court under either of the said Acts, shall remain bound by the provisions of this Act.

Section 53. [Repealed]

[Repealed by section 3 and Schedule II of the Repealing and Amending Act, 1937 (Act No. XX of 1937).]

1.Section 7 was substituted, for section 7 by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

2.The words and comma "The Registrar shall, at such intervals as the Government" were substituted, for the words and commas "Every Registrar, shall, at such intervals as the Provincial Government by which he was appointed" by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).

3.The words "for the territories administered by such Provincial Government" were omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).

4.The words "as the Government" were substituted, for the words "as such Provincial Government" by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).

5.The word "The" was substituted, for the word "Any" by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

6.The words "the Registrar" were substituted, for the letter and word "a Registrar" by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

7.The words "as the Government may" were substituted, for the words "in the territories of the Provincial Government as such Governments respectively shall" by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

8.The word "seven" was omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

9.Section 24 was substituted, for section 24 by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

10.The words "the High Court Division" were substituted, for the words "a High Court" by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

11.The words "the High Court Division" were substituted, for the words "the High Court" by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

12.Section 51 was substituted, for section 51 by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).