[Act, No. 5 of 1988] [25th March, 1988] An Act further to amend the Parsi Marriage
and Divorce Act, 1936. BE it enacted by Parliament in the Thirty-ninth Year of the Republic of
India as follows: - (1)
This Act may be called the Parsi Marriage and
Divorce (Amendment) Act, 1988. (2)
It shall come into force on such date
{15-4-1988 Vide Notification No.S.O.381(E) dated 12-4-1988, Gazette of India,
Extraordinary 1988 Pt.II Sec.3 (ii)} as the Central Government may by
notification in the Official Gazette, appoint. In the Parsi Marriage and Divorce Act, 1936 (3 of 1936) (hereinafter
referred to as the principal Act), section 3 shall
be re-numbered as sub-section (1) thereof, and - (a)
in sub-section (1) as so re-numbered, for
clause (c), the following clause shall be substituted, namely :- "(c) in the case of any Parsi (whether such Parsi has changed his
or her religion or domicile or not) who, if a male, has not completed
twenty-one years of age, fund if a female, has not completed eighteen years of
age."; (b)
after sub-section (1) as so re-numbered, the
following sub-section shall be inserted, namely :- "(2) Notwithstanding that a marriage is invalid under any of the
provisions of sub-section (1), any child of such marriage who would have been
legitimate if the marriage had been valid, shall be legitimate.". In section 6 of the principal Act, the words ", or their fathers or
guardians when they shall not have completed the age of twenty-one years,"
shall be omitted. In sections 19 and 20 of the principal Act, for the words "by
seven delegates", the following shall be substituted, namely :- "by five delegates, except in regard to - (a)
interlocutory applications and proceedings; (b)
alimony and maintenance, both permanent as
well as pendente lite; (c)
custody, maintenance and education of
children; and (d)
all matters and proceedings other than the
regular hearing of cases". In section 25 of the principal Act, after the words "being in force",
the words "involving moral turpitude" shall be inserted. In the proviso to section 27 of the principal Act, for
the word "three", the word "two" shall be substituted. In section 29 of the principal Act, in sub-section (1), the words 'or where the
marriage under this Act was solemnized' shall be added at the end. In section 32 of the principal Act, - (i)
after clause (b), the following clause shall
be inserted, namely :- '(bb) that the defendant has been incurably of unsound mind for a period
of two years or upwards immediately preceding the filling of the suit or has
been suffering continuously or intermittently from mental disorder of such kind
and to such an extent that the plaintiff cannot reasonably be expected to live
with the different. Explanation.- In this clause, - (a)
the expression "mental disorder"
means mental illness, arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and includes
schizophrenia; (b)
the expression "psychopathic disorder'
means a persistent disorder or disability of mind (whether or not including sub
normality of intelligence) which results in abnormally aggressive or seriously
irresponsible conduct on the part of the defendant, and whether or not it
requires or is susceptible to medical treatment;'; (ii)
after clause (d), the following clause shall
be inserted, namely :- "(dd) that the different has since the solemnization of the
marriage treated the plaintiff with cruelty or has behaved in such a way as to
render it in the judgment of the Court improper to compel the plaintiff to live
with the different: Provided that in every suit for divorce on this ground it shall be in
the discretion of the Court whether it should grant a decree for divorce or for
judicial separation only;"; (iii)
in clause (g), for the words "three
years", the words "two years" shall be substituted; (iv)
in clause (h), - (1)
the words "a decree or order for judicial
separation has been passed against the different, or" shall be omitted; (2)
for the words "three years", the
words "one year" shall be substituted; (v)
?clause (i)
shall be omitted; (vi)
in clause (j), after the word
"Parsi", the words "by conversion to another religion"
shall be inserted. After section 32 of the principal Act, the following sections shall be inserted,
namely :- "32A.Non-resumption of cohabitation or restitution of conjugal
rights within one year in pursuance of a decree to be ground for divorce.- (1)
Either party to a marriage, whether
solemnized before or after the commencement of the Parsi Marriage and Divorce
(Amendment) Act, 1988, may sue for divorce also on the ground, - (i)
that there has been no resumption of
cohabitation as between the parties to the marriage for a period of one year or
upwards after the passing of a decree for judicial separation in a proceeding
to which they were parties; or (ii)
that there has been no restitution of
conjugal rights as between the parties to the marriage for a period of one year
or upwards after the passing of a decree for restitution of conjugal rights in
a proceeding to which they were parties. (2)
No decree for divorce shall be granted under
sub-section (1) if the plaintiff has failed or neglected to comply with an
order for maintenance passed against him under section
40 of
this Act or section 488 of the Code of Criminal Procedure, 1898 (5of 1898)
or section 125 of the Code of
Criminal Procedure, 1973 (2 of 1974). 32B. Divorce by mutual consent.- (1)
Subject to the provisions of this Act, a suit
for divorce may be filed by both the parties to a marriage together, whether
such marriage was solemnized before or after the commencement of the Parsi
Marriage and Divorce (Amendment) Act, 1988, on the ground that they have been
living separately for a period of one year or more, that they have not been
able to live together and that they have mutually agreed that the marriage
should be dissolved: Provided that no suit under this sub-section shall be filed unless at
the date of the filing of the suit one year has lapsed since the date of the
marriage. (2)
The Court shall, on being satisfied, after
hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized under this Act and the averments in the plaint are
true and that the consent of either party to the suit was not obtained by force
or fraud, pass a decree declaring the marriage to be dissolved with effect from
the date of the decree.". In section 34 of the principal Act, the portion beginning with the words ",
or on the ground that", and ending with the words "with the
defendant" shall be omitted. In section 35 of the principal Act, after the figures "32", the
figures and letter ", 32A" shall be inserted. For section 38 of the principal Act, the following section shall be substituted,
namely :- "38.Documentary evidence.- Notwithstanding anything contained in any other law for the time being
in force, no document shall be inadmissible in evidence in any proceeding at
the trial of a suit under this Act on the ground that it is not duly stamped or
registered.". For sections 39 and 40 of the principal Act, the following sections
shall be substituted, namely:- "39.Alimony pendente lite.- Where in any suit under this Act, it appears to the Court that either
the wife or the husband, as the case may be, has no independent income
sufficient for her or his support and the necessary expenses of the suit, it may,
on the application of the wife or the husband, order the defendant to pay to
the plaintiff, the expenses of the suit, and such weekly or monthly sum, during
the suit, as, having regard to the plaintiff's own income and the income of the
defendant, it may seem to the Court to be reasonable. 40.Permanent alimony and maintenance.- (1)
Any Court exercising jurisdiction under this
Act may at the time of passing any decree or at any time subsequent thereto, on
an application made to it or the purpose by either the wife or the husband,
order that the defendant shall pay to the plaintiff for her or his maintenance
and support, such gross sum or such monthly or periodical sum, for a term not
exceeding the life of the plaintiff as having regard to the defendant's own
income and other property, if any, the income and other property of the
plaintiff, the conduct of the parties and other circumstances of the case, it
may seem to the Court to be just, and any such payment may be secured, if
necessary by a charge on the movable or immovable property of the defendant. (2)
The Court if it is satisfied that there is
change in the circumstances of either party at any time after it has made an
order under sub-section (1), it may, at the instance of either party, vary,
modify or rescind any such order in such manner as the Court may deem just. (3)
The Court if it is satisfied that the party
in whose favour an order has been made under this section has remarried or, if
such party is the wife, that she has not remained chaste, or, if such party is
the husband, that he had sexual intercourse with any woman outside wedlock, it
may, at the instance of the other party, vary, modify or rescind any such order
in such manner as the Court may deem just.". In section 41 of the principal Act, - (a)
after the words "approved by the
Court", the words "or to a guardian appointed by the Court"
shall be inserted; (b)
after the words "a new trustee,",
the words "or guardian," shall be inserted. For section 43 of the principal Act, the following section shall be substituted,
namely :- "43.Suits to heard in camera and may not be printed or published.- (1)
Every suit filed under this Act shall be
tried in camera and it shall not be lawful for any person to print or publish
any matter in relation to any such case except a judgment of the Court printed
or published with the previous permission of the Court. (2)
If any person prints or publishes any matter
in contravention of the provisions contained in sub-section (1), he shall be
punishable with fine which may extend to one thousand rupees.". In section 44 of the principal Act, for the word "five", the words
"three" shall be substituted. To section 45 of the principal Act, the following provisos shall be added,
namely :- "Provided that the presiding Judge shall read out to the delegates
the relevant sections of this Act, and may, if he considers it necessary so to
do, explain the same: Provided further that a verbatim record shall be made of what the
presiding Judge read out or explains to the delegates.". Section 47 of the
principal Act shall be re-numbered as sub-section (1) thereof, and after
sub-section (1) as so re-numbered, the following sub-section shall be inserted,
namely :- "(2) Every appeal under sub-section (1) shall be heard by a Bench
of two Judges of the High Court.". In section 48 of the principal Act, - (a)
the word "hereby" shall be omitted; (b)
the words ", as if the prior marriage
had been terminated by death" shall be omitted. In section 49 of the principal Act, for the words "sixteen years", the
words "eighteen years" shall be substituted.THE PARSI MARRIAGE AND DIVORCE
(AMENDMENT) ACT, 1988
PREAMBLE