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In what could very well turn out to be another keenly followed litigation, the Supreme Court today agreed to examine the vires of certain critical provisions of the Parsi Marriage and Divorce Act, 1936.
A Bench of Justices Kurian Joseph and R Banumathi today sought the assistance of one of the law officers in a challenge by one Naomi Sami Irani to the vires of sections 18, 19, 20, 21, 24, 30, 32(a), 46, 47(b) and 50 of the Parsi Marriage and Divorce Act, 1936.
Irani has challenged the provisions on the ground of violation of Articles 14 and 21.
The main thrust of her challenge is regarding how the Act perpetuates the jury system despite abolition of the same in India.
Section 18 of the said Act provides for constitution of “special courts” to hear suits filed therein. Section 19 of the Act provides for the constitution of Special Calcutta, Madras and Bombay and entitled as ‘Parsi Chief Matrimonial Courts’. The said provision also provides for the composition of the said court 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.
It is the contention of the petitioner 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.
“Under Section 24 of the said Act, the delegates are appointed by the State Government by notification in the Official Gazette. All suits under the said Act and 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.
It is pertinent to note that the impugned provision of the said Act is archaic which pre-dates the country’s Independence. More importantly, it pre-dates the abolition of the jury system in our criminal jurisprudence in the 1960’s. Even after the amendment to the procedure codes, this system of delegates and a jury has been retained only for matters filed under the said Act. There can be no doubt at all that under the said Act it is the delegates’ verdict on facts that is final. No appeal lies from that verdict.”
Irani has submitted that jury under the said Act were established for the purpose of speedy and effective fact finding and disposal of the cases while interpreting the substantive laws governing the community. However, due to substantial drawbacks affiliated with the jury system, the whole jury system was subsequently abolished. It is her contention that the same should apply uniformly and jury system cannot be retained for one community alone.
She has also set out the drawbacks of the jury system, which had resulted in its abolition in India.
“The abolition of the jury system was deemed as a positive step in the history of Indian judiciary as the jury in most cases was not in a position to weigh the facts in light of proper legal complicacies and is likely to be swayed by popular and painted notions and as a mature democracy we stand for free and fair judgement. It was seen that consensus of the jury are often biased and the jury consists of people who mostly are not related to the legal system.
So it’s not difficult for the jury to be influenced from popular notions/media portrayals etal. which could completely deter a fair trial. The jury judges a case based on societal norms, morality and ethics which may not be in consonance with the principles of natural justice and ethos of dynamic society and hence, it was deemed to be healthy to replace such a mechanism with a relatively fair and unbiased adjudication system.”
Another contention of the petitioner is that the jurisdiction of the Family Courts is jettisoned due to Sections 18 and 19 and, hence, Parsis are deprived of the benefits of Family Courts, which are otherwise available to all other persons.
“…in view of the provisions of Section 18 and 19 of the PMDA in pursuance of which Special Courts namely Parsi Chief Matrimonial Courts and the Parsi District Matrimonial Courts have been established, the parties subject to this Act are compelled to subject themselves to the jurisdiction of these Spl. Courts and are deprived of the advantages of the Family Courts, which are otherwise available to all other persons….
there is no intelligible differentia in depriving the persons subject to this act of availing the speedy settlement mechanism of the Family Courts as against the persons subject to other codified personal laws.”
The petitioner has inter alia, made the following prayers:
Read the petition below.