In this Section of the lesson, we will discuss the role of legislation and judicial precedents in Christian, Parsi and Jewish law. As you might now be aware, legislations have played a major role in codifying the customary practices and new rules related to any area in one place. Similarly, the courts of superior jurisdiction have been given the authority to lay down judicial precedents in any case where the legislation is unable to provide solutions and customary practices have not been given recognition in the legislation. First of all, we would analyze the role of legislation and judicial precedents in Christian law.
Specific legislation relating to personal matters was codified during British rule in India. The term ‘Indian Christian’ is defined in the Christian Marriage Act, as a person professing the Christian religion and it includes Christian descendants of native Indians converted to Christianity, as well as ordinary converts. Baptism by itself does not amount to conversion. A convert has not only to be baptized, but also to profess Christianity according to Christian traditions. There are many special laws relating to Christians. The Indian Christian Marriage Act was codified in the year of 1872. This Act has consolidated and amended the laws relating to the solemnization of the marriages of persons professing the Christian religion in India. This Act has now been extended to Kanyakumari district and the Schencuttah taluk of the Tirunelveli-Kattabomman district of TamilNadu in 1995. The law on Christian divorce is codified by the name of The Divorce Act, 1869. This Act has been amended in 2001 whereby divorce by mutual consent is allowed.
There is no specific legislation enabling or regulating adoption among Christians in India. Persons who wish to adopt a minor child usually approach the Court under the provisions of the Courts and Wards Act, 1890, to obtain an order of guardianship for the minor child. Orders under that, however, would not apply once the child becomes a major, thereby disentitling the child from the benefits enjoyed by an adopted son or daughter. This position has now been changed after the enactment of “Juvenile Justice (Care and Protection of Children) Act, 2000, read with the Guidelines and Rules issued by various State Governments under which now the Christians can also adopt children.
So far as matters relating to succession are concered, they are governed by the Indian Succession Act, 1925. This law governs intestate and testamentary succession of immovable property of Christians and Parsis. By virtue of the provisions of the Goa, Daman and Diu (Administration) Act, 1962, the Portuguese Civil Code is applicable in Goa. In Pondicherry, the French Civil Code still survives as per the provisions of the Treaty of Cession, 1956. Further, the Garos of Meghalaya are also not subject to this Succession Act. They follow their customary matrilineal system of inheritance.
The ‘judicial precedents’ relating to Christians are also very important to understand. In one decided case on marriage, the Madras High Court held that the consent of the father of a minor girl is mandatory to marry her. When the consent was not obtained from the father and the boy committed a fraud by changing the year of birth of the girl to avoid taking the consent of her father, it was held not to be legal (Rosalyn Mary v. Ravi Gnanaselvam). In another decided case, the same court held that when no priest officiated the marriage ceremonies and the marriage did not take place in a church, the marriage would not be a marriage in the eyes of the Court even though documents were executed few weeks prior to the alleged marriage to provide for the dowry (S. Selvaraj v. Martha Peter).
In another decided case on divorce, the Supreme Court noted that the Divorce Act, 1869 confers jurisdiction on District Courts and High Courts in matrimonial matters. Unless the Act recognizes the jurisdiction, authority or power of Ecclesiastical Tribunal (sometimes called as Church Court), any order or decree passed by such Ecclesiastical Tribunal cannot be binding on the Courts which have been recognized under the Act to exercise power in respect of granting divorce and adjudicating in respect of matrimonial matters (Molly Joseph v. George Sebastian). On the question of whether slapping a wife by her husband amounts to cruelty, the Court has decided that merely slapping his wife after marriage does not amount to cruelty and this would not be a ground of divorce (Agnel Valentine D’Souza v. Blanche Agnela Piedade).
The Indian Parliament has regulated Parsi marriages and divorces by enacting special laws for them entitled ‘The Parsi Marriage and Divorce Act, 1936’ which has been amended to some extent in 1988. This Act defines a Parsi as a person who is Parsi Zoroastrian. However, you might wonder about a situation when a Parsi boy marries a non-Parsi girl, what would be the religion of their children? Similarly, if a Parsi girl marries a non-Parsi boy, what would be the religion of their children? These questions are not answered by the Act. To know the answer, we would have to look at judicial precedents. In a case decided by the Bombay High Court, the Court observed that the children of a Parsi father and a non-Parsi mother are Parsi provided they are admitted to the Parsi religion and profess the Zoroastrian faith. The children of a Parsi mother and non-Parsi father, however, would not be Parsi (Sir Dinshaw Maneckji v. Sir Jamshedji).
According to this Act, Parsi marriage can be invalid if any of the three acts have been committed: (a) when the contracting parties are related to each other in any degrees of consanguinity or affinity (for example, a man shall not marry his sister’s son’s wife, and a woman shall not marry her sister’s daughter’s husband); (b) when the marriage is not solemnized according to Parsi form of ceremony called “Ashirvad” by the priest in the presence of two Parsi witnesses other than the priest himself; or (c) when the contracting parties are not adults, i.e., the male has not completed 21 years of age, and the female has not completed 18 years of age. You might again think about a situation when a minor Parsi boy marries a Parsi girl and a child is born, would that child be illegitimate? The answer is given by this Act and it says that the child would be called legitimate.
The marriage contracted under this Act shall, immediately on the solemnization thereof, be certified by the officiating priest. The certificate shall be signed by the said priest, the contracting parties and two witnesses present at the marriage. The priest shall thereupon send such certificate together with a prescribed fee to be paid by the husband to the Registrar of the place at which such marriage is solemnized. Any priest knowingly and willfully solemnizing any marriage contrary to these conditions shall be punished with simple imprisonment for a term which may extend to six months, or with fine, or with both. Ten grounds for divorce are also provided in this Act. Those are:
One more ground has been added in the year of 1988, i.e., divorce by mutual consent. If the contracting parties are living separately for a period of one year or more, and they have not been able to live together, and they have mutually agreed that the marriage should be dissolved, such divorce may be granted by the court.
Separate Courts are also constituted for the adjudication of Parsi matrimonial disputes. In each of the Presidency towns of Mumbai, Chennai, and Kolkata, Parsi Chief Matrimonial Courts are established in the High Courts of these cities. These Chief Matrimonial Courts are aided by five Parsi delegates who are residents of the city and are willing to express their opinion in Parsi matrimonial disputes. These delegates are appointed by the State government. Similarly, a Parsi Matrimonial Court can also be constituted at a place other than Presidency town, and those Courts are called Parsi District Matrimonial Courts.
The legislature has not passed any special legislation to deal with Parsi adoption, except Parsi Intestate Succession Act, 1865, wherein it did not recognize an adopted son as a Parsi heir. Therefore, Parsi couples wishing to adopt a child could not have done so except for religious purposes. The Court has accepted the customary practice of adoption, i.e., Palak for religious purposes (Jehangir Dadabhoy v. Kaikhushru Kavasha). However, Parsi couples wishing to adopt a child may do so under a new legislation, named ‘The Juvenile Justice (Care and Protection of Children) Act, 2000’.
Matters relating to Parsi succession are provided for in the Indian Succession Act, 1925. Before this Act was passed, there was Parsi Intestate Succession Act, 1865 which dealt with this issue. Now, Indian Succession Act has a separate Chapter III which deals with Parsi intestate succession. Intestate Succession means a succession where the deceased did not make any will before death.
There is no specific legislation for the marriages amongst the Jews in India, so the role of legislation has absolutely no significance. Unlike in the case of Christians, Parsis and Hindus, as also in the case of Muslim women, there is also no statute providing for any matrimonial relief, such as divorce and alimony. However, judicial precedents have helped Jewish law to evolve in India for a long time. In this section, we will give full focus on the role of judicial precedents in shaping Jewish law in India.
The Bombay High Court judgments have played a major role in developing Jewish law in India. For example, this Court has established the rule that the nature and incidence of a Jewish marriage and the matrimonial relief to which a Jewish husband or wife would be entitled, must be ascertained from their personal law (Mozelle Robin Solomon v. Lt. Col. R.J. Solomon). Matrimonial disputes, such as seeking divorce can also be settled by the Courts. The law to be applied in such cases is the Jewish law with such adaptations to the circumstances of the case as justice may require.In the event of any dispute, the custom of the Jewish community will be considered before any ruling on the matter may be pronounced (Rachel Benjamin v. Benjamin Solomon Benjamin).
Recognizing one of the Jewish customs, the Bombay High Court held that where a Jewish girl (Baghdadi Jew) went through betrothal ceremony, called Kaseph Kiddushim (it is one of the two steps of marriage, the other step being “Chuppah”), the girl may be entitled to get the betrothal cancelled if the conditions of betrothal have not been fulfilled by the boy or the groom. Betrothal ceremony amongst Jews confers some of the rights and obligations of the married state. When the betrothal becomes void on non-fulfillment of its conditions, there is no need to execute a bill of divorcement to nullify the effect of the Kaseph Kiddushim ceremony (David Sassoon Ezekiel v. Najia Noori Reuben). The girl can marry another Jewish boy without getting a bill of divorcement from the earlier boy with whom she was betrothed.
In an interesting case of divorce, a Jewish husband filed a petition in the Mumbai High Court seeking divorce on two grounds: (a) obstinate refusal of conjugal rights during one whole year (b) insulting the father-in-law in the presence of the husband and insulting the husband himself. Since there was some uncertainty about the exact law applicable on the question of divorce claimed by the husband, the Court referred to Jewish customary practice in England and the U.S.A. as mentioned in a book written by Rev, M. Mielziner on the Jewish Law of Marriage and Divorce in ancient and modern times. In modern times, these grounds of divorce are called (a) desertion (b) cruelty. In this case, the Court found that the wife had not obstinately refused to cohabit as before and after the time in which cohabitation was not alleged, it was found that they had cohabited with each other. On the second ground also, the Court held that the wife had not insulted her father-in-law , rather she wanted to assert her views. When a wife speaks up in front of her father-in-law and husband, it does not amount to cruelty (Bension Joseph Hayeema v. Sharon Bension Hayeema).
The Court has also examined the Jewish law on ‘will’ by which a person can transfer his property according to his own wishes to others. It was held that the subject matter of a gift or a ‘will’ must be definite, existing, and in possession. No uncertain or future property can validly form the subject of a gift or a ‘will’. For example, a share of a share in a partnership property is indefinite. Delivery of the document containing the ‘will’ to the donee is essential in order to complete the transaction. A ‘will’ must be read or the contents thereof explained to the donee or the legatee or some of his agent. If any of these essential requirements is not complied with or observed, the ‘will’ cannot be enforced by the court (Menahem Mesha v. Moses Bunin Menahem Messa).