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By Anushka Rao
I. Introduction
The Parsi Marriage and Divorce Act, 1936 (PMDA),[1] a piece of colonial-era legislation that governs personal law matters for the Parsi community in India, continues to perpetuate patriarchal norms and biases, depriving women of equal rights and protections in marriage and divorce. Firstly, unlike other personal laws in India including the Hindu Marriage Act, 1955[2] , and the Muslim Personal Law Application Act, 1937[3], PMDA does not require ‘consent’ as a pre-requisite for a valid marriage. Secondly, PMDA lacks clarity in its legal interpretation regarding the determination of who is a Parsi or in other words what are the requirements to be called a Parsi.
A. Failure To Recognize ‘Informed Consent’
The PMDA's omission on the issue of consent[4] is concerning as it raises concerns about the legal recognition and protection of individual autonomy and agency, especially for women. It fails to acknowledge the critical importance of obtaining informed consent before marriage. Without consent, a marriage can become a forced servitude, depriving women of their agency and autonomy.
In contrast, both Hindu and Muslim personal laws recognize the essential role of informed consent in the context of marriage. For instance, under the Hindu Marriage Act, of 1955, Section 5 mandates that a marriage is only valid if both parties give their free consent, and any marriage entered into without such consent is voidable.[5] Similarly, the Muslim Personal Law (Shariat) Application Act, of 1937, emphasises the necessity of mutual consent in marriages, requiring that the marriage contract be entered into freely by both parties.[6]
The absence of a similar provision in PMDA is alarming, as recognizing the right to consent in the context of marriage is essential. Legal protections must be in place for individuals coerced into marriages without their consent. It is imperative that the PMDA incorporate regulations prioritizing the protection and welfare of Parsi women and girls, thereby safeguarding their fundamental rights to autonomy, agency, and informed consent.
B. Parsi Identity & Gender Equality in Practice
Another critical issue in the application of PMDA involves determining who qualifies as a Parsi, or more specifically, what requirements must be met to be identified as a Parsi. The interpretation of Parsi identity is complex and sensitive, with courts in India attempting to define its parameters. This critical issue gives rise to various biases within the Parsi community, particularly against individuals with a Parsi mother and a non-Parsi father. Legal precedents have often resulted in women’s identities being subsumed under their husbands’,[7] leading to Parsi women losing their Parsi identity, status, and agency. Consequently, children born to Parsi mothers but Parsi fathers are excluded from being recognized as Parsis. This exclusion undermines the autonomy of Parsi women and perpetuates gender inequality within the community.
Several courts in India have addressed the requirements for being recognized as a Parsi.[8] In Dinsha Manekji Petit v. Jamsetji Jijibha,[9] the Hon’ble Bombay High Court established the legal principle that for an individual to be recognized as a Parsi, both parents must be Parsis, or at the very least, the father should be a Parsi.[10] This ruling directly discriminates against children with a non-Parsi father but a Parsi mother, leading to their exclusion from admittance to Parsi-only institutions and denial of community benefits and inheritance rights. Hence, this accentuates how the identity, agency, and social standing of the Parsi mother is disregarded, and the need to address broader concerns regarding the intersectionality of religion, gender, and identity.
Further, in Goolrokh M. Gupta v. Burjor Pardiwalia,[11] the Gujarat High Court held that “a woman who marries outside her religion is presumed to have merged into the religion of her husband.”[12] This judgment pre-determined the petitioner’s religion solely based on her marriage violating her fundamental right to religion and conscience.[13] Her religious identity was deemed to align with that of her husband’s, effectively assimilating her into his religion. Her religious personality now the property of her husband, was deemed to be Hindu.[14] This forced assimilation reinforces patriarchal norms, subjugating women and limiting their freedom of choice.[15] The question arises: does a woman lose her identity merely by marrying a man of another religion? How can legislation and judicial interpretations force a woman to abandon her identity and freedom to practice her chosen religion just because of her marital status?
This practice in courts constitutes unlawful discrimination, unfairly targeting and exploiting women's identity and autonomy. It violates Article 25 of the Constitution of India, which guarantees the right to profess any religion and conscience. This legal precedent implies that one's religious affiliation is contingent upon their marital status and that of their spouse. In conclusion, this shows that, in practice, even today, "being Parsi" is fundamentally defined by access to communal and sacred spaces, and this very access becomes the criterion for verification, creating a moving target for those denied access due to their choice of marriage partner.[16]
II. Struggle For Inheritance
The Indian Succession Act, 1925 (“ISA”)[17] establishes the legal framework for succession rights within the Parsi community, encompassing intestate succession provisions specific to Parsis in Sections 50 to 56, along with testamentary provisions. However, before the amalgamation of the Parsi Intestate Succession Act, of 1865 into the ISA,[18] Parsi women were unjustly denied their rightful inheritance under the community's intestate succession laws. Unfortunately, even the ISA has not fully remedied this issue, as Sections 50,[19] 53,[20] and 54[21] of the ISA still reflect significant gender-based disparities in inheritance rights, necessitating reform to ensure greater equality for male and female heirs.
A. Discriminatory Legacy
Before the enactment of ISA in 1925, women’s rights were limited, confining them solely to maintenance and adoption rights without any entitlement to inherit property from their deceased male relatives.[22] In Mancherji Kawasji Davur and Ors. v. Mithibai (1877),[23] the Bombay High Court, recognized the right of a childless widow of a pre-deceased son to inherit property from her intestate father-in-law, deeming Section 50 of the Parsi Succession Act, 1865 discriminatory and unconstitutional. Such discriminatory provisions not only perpetuated gender inequality in the Parsi community but also resulted in vulnerability and disadvantage for women, particularly those who had no other means of support. This decision is one of many decisions in the pre-colonial era, that highlight how discriminatory provisions deprived thousands of Parsi women of their right to inherit the property of their deceased family members, rendering them vulnerable and disadvantaged.
B. Inequitable Provisions in Indian Succession Act, 1925
The primary objective of consolidating the Parsi Intestate Succession Act, of 1865 with the Indian Succession Act, of 1925 (“ISA”) was to equalize inheritance rights for Parsi men and women. However, even after these amendments, some discriminatory provisions remained.
Section 50 of the ISA, states that “where a [widow or widower of any relative] of an intestate has married again in the lifetime of the intestate, [such widow or widower] shall not be entitled to receive any share of the property of which the intestate has died intestate, and [such widow or widower] shall be deemed not to be existing at the intestate’s death.”[24] This provision, while not overtly gender-biased, can disproportionately affect women, particularly a widow of a predeceased son who is childless and remarries, thus forfeiting her right to inheritance from her deceased husband’s family. For instance, a widow of a predeceased son who died childless is not entitled to a share in the intestate's property. This provision can result in a scenario where a woman who has no other means of support is left without any inheritance from her deceased husband's family, simply because she remarried.[25]
Section 53 of the Act further compounds this inequality by dictating that the share of an intestate’s property left by a predeceased offspring is distributed differently depending on whether they were a son or a daughter with a son’s share being twice that of a daughter’s.[26] Similarly, Section 54 establishes that if the intestate leaves no lineal relative and a widow or widower, the distribution of assets is unequal between male and female heirs.[27] It implies that the widow is only entitled to as much as any of her sons, and in the event of the intestate's parents surviving, the deceased son's half-share goes to the father, who is entitled to the same portion as the daughter. However, the mother only gets half the portion of the daughter's share, creating a significant disparity.[28] Therefore, sections 50, 53, and 54 of the ISA, as amended, create significant gender-based disparities in Parsi inheritance rights.
III. Conclusion
Despite the Parsi community's reputation for progressiveness, gender inequality and discrimination persist and require immediate attention and action. Parsi women in India continue to face challenges in asserting control over their own lives, making autonomous decisions, and being treated equally.
The Parsi Marriage and Divorce Act of 1936 and the Indian Succession Act of 1925 are still entrenched in patriarchal beliefs and biases that limit women's agency and autonomy, as evidenced by their provisions. The lack of explicit recognition of informed consent in marriage, combined with biased judicial interpretation of Parsi identity, has resulted in Parsi women losing their identity, status, and agency, perpetuating gender inequality within the community perpetuating gender inequality.
Despite amendments to the Indian Succession Act, sections 50, 53, and 54 of the Act still allow for gender-based discrimination, as demonstrated. It is necessary to address the nuances of gender inequality and intersectionality of religion, gender, and identity, uphold the fundamental rights of women, and provide legal protection against discrimination. The call for action is necessary to create a more equitable and just society that upholds the values of progressiveness and inclusivity that the Parsi community is known for.
References
[1] See supra note 1.
[2] Parsi Marriage and Divorce Act 1936.
[3] Indian Succession Act 1925.
[4] Jaya Sagade, Child Marriage In India, (2nd edn, OUP, 2012), 81.
[5] Hindu Marriage Act 1955, s 5.
[6] Muslim Personal Law (Shariat) Application Act, 1937.
[7] Goolrokh M. Gupta v. Burjor Pardiwala, [2012] 2 GCD 1463.
[8] V.N. Muralidharan, ‘Women’s Religious Rights After Inter-Religious Marriages’ (SCC Blog, 28 February 2018),
<https://www.scconline.com/blog/post/2018/02/28/womens-religious-rights-inter-religious-marriages/#_ftn4> accessed 24 February 2022.
[9] Dinsha Manekji Petit v. Jamsetji Jijibha, (1909) 11 Bom LR 85.
[10] See supra note 12.
[11] See supra note 10.
[12] Ibid.
[13] INDIA CONST. art. 25.
[14] Leilah Vevaina, ‘She's Come Undone: Parsi Women's Property and Propriety under the Law’ [2018] POLAR 44.
[15] Mitra Sharafi, ‘Bella's Case: Parsi Identity and the Law in Colonial Rangoon, Bombay and London’ [2006] Princeton, NJ: Princeton University 1887-1925.
[16] Leilah Vevaina, ‘She's Come Undone: Parsi Women's Property and Propriety under the Law’ [2018] POLAR 44.
[17] Indian Succession Act 1925.
[18] Parsi Intestate Succession Act 1865.
[19] Indian Succession Act 1925, S 50.
[20] Indian Succession Act 1925. S 53.
[21] Indian Succession Act 1925, S 54.
[22] Sarkar & Santosh Kumar, ‘Gender Justice in Succession laws in India’ (University of North Bengal Publication, 2005) https://sg.inflibnet.ac.in/bitstream/10603/137137/9/09_chapter_04.pdf. accessed 27 February 2023.
[23] Mancherji Kawasji Davur and Ors. v. Mithibai, (1877) ILR 1 Bom 506.
[24] Indian Succession Act 1925, S 50.
[25] Rhea Tewary, ‘Women's Rights Under Family Law in India’ (SSRN 17 February 2022) <http://dx.doi.org/10.2139/ssrn.4037567> accessed 2 March 2023.
[26] Indian Succession Act 1925, S 53.
[27] Indian Succession Act 1925, S 54.
[28] Jyoti Shelar, ‘The Conflict within: Parsis and gender Rights’ (The Hindu 22 May 2017)
<https://www.thehindu.com/news/cities/mumbai/the-conflict-within-parsis-and-gender-rights/article18520582.ece> accessed 2 March 2023.
Anushka Rao is a third-year law student at Jindal Global Law School. Her areas of interest are Constitutional law, intersections of gender and law, and sociology.
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