On 25th November, 2022, the Apex Court agreed to list a plea challenging several provisions of the Parsi Marriage and Divorce Act, 1936, which provides for a system of jury comprising community members to decide matrimonial disputes. A bench comprising Chief Justice of India – D Y Chandrachud and Justice Hima Kohli announced that it would hear the matter in February 2023, after an advocate mentioned it for listing.
The Supreme Court had issued notice on the plea filed in December 2017 by a Parsi woman – Naomi Sam Irani stating that the provisions of the Act violated Article 14 (Right to Equality) and Article 21 (Right to Life and Liberty) of the Constitution, while citing a top court verdict declaring the practice of instant triple talaq used by Muslim men unconstitutional and violative of Muslim women’s right to live with dignity.
Questioning the validity of provisions of the Parsi Marriage and Divorce Act (PMDA), Irani had said the procedure under the 1936 personal law is exasperatingly cumbersome, involving a system akin to a jury decision, and grants no access to mediation and settlement as available to Hindu women under the family court system. The petition had challenged the Constitutionality of sections 18, 19, 20, 21, 24, 30, 32(a), 46, 47(b) and 50 of the Parsi Marriage and Divorce Act, 1936.
Section 18 of the Act provides for the constitution of Special Courts at Calcutta, Madras and Bombay, titled ‘Parsi Chief Matrimonial Courts’. Section 19 provides for the composition, as per which the Chief Justice of the High Court shall appoint the judge of such Parsi Matrimonial court. The judge of the matrimonial court shall be aided by five delegates. The petition stated that the five delegates are, for all practical purposes, a jury, as the delegates’ verdict on facts is final and no appeal lies against the same. The plea termed the provision as “archaic” and said it pre-dated independence and abolition of the jury system “in our criminal jurisprudence in the 1960s” and cannot be retained for one community alone.
She had set out the drawbacks of the jury system, which had resulted in its abolition in India. “The jury delegates adjudicate a divorce petition based on their personal notion of societal norms, morality and ethics, which may not be in sync with the principles of natural justice and the ethos and dynamics of society,” the petition stated.