Appointments of judges in Parsi matrimonial courts

The use of expression ‘Ordinary Original Civil Jurisdiction’ is the legal phraseology. It only means that the Court where people, ordinarily, file their Civil Suits, for the first time, are the Courts of Ordinary Original Civil Jurisdiction. Section 19 invests power with the Hon’ble the Chief Justice of respective high courts or the Hon’ble judge of the High Court acting as the Chief Justice in his place, to appoint the judges of the Parsi Chief Matrimonial Courts established under the Act.

Such appointments of judges can be made from time to time. Whereas, under Section 20 of the Act, the Principal Judge of the local Civil Court of original jurisdiction will be the judge of the Parsi District Matrimonial Courts. The Judges so appointed under the Act will conduct Trial of the case and five delegates will assist them in the trial of the case. Sections 19 and 20 of the Act lay down that the learned Judge of Parsi Matrimonial Court can hold the Trial without the assistance of five delegates in the following cases:

1. Where Orders are required to be passed –

(а) Urgently and/or

(b) Pending the hearing and final disposal of the Suit under the Act and/or

(c) In addition and in furtherance of the main Suit filed under the Act.

The Orders passed pending the hearing and final disposal of the Suit for urgent reliefs are called as the interim or ad-interim Orders whereas the Orders passed although pending the hearing and final disposal but in addition to and in furtherance of the main relief are called as the interlocutory Orders. The interim, ad-interim and/or interlocutory Orders can be asked for (1) on Application may be (a) Oral or (b) in writing] OR (2) in independent proceedings, in which case, presence of five delegates is not mandatory.

2. While passing the Orders of Alimony, no matter whether (A) the alimony is during pendency of the hearing and final disposal of Suit filed under the Act or (B) whether it is in respect of the permanent alimony.

Presence of five delegates is not mandatory for passing the interim or permanent Order of Alimony.

3. While passing the Orders in respect of (i) custody (ii) maintenance and (iii) education of children

4. When ‘Hearing’ is not for the ‘hearing and final disposal of the matter on merit’.

From the above, it should be crystal clear that not in each and every case the presence of five delegates is necessary. Presence of five delegates is mandatory only and only when the trial takes place for the ‘hearing and final disposal of the matter on merit’. Needless to record that the interlocutory Orders are in addition to and/or in furtherance of the main relief and therefore, the main suit is not finally disposed by the interlocutory Orders. As such, the Courts are vested with power to pass interlocutory Orders without the aid of Five Delegates under the Act.

Appointment of delegates

Section 24 vests powers in each State Government to make appointments of delegates in the Presidency Towns and also in each District of the State. By appointment of delegates, local Parsis are given an opportunity to express their opinions in the matter of matrimonial dispute relating to Parsis. Necessarily, therefore, the delegates must be Parsi. The names of delegates have to be notified in the Government Gazette. The appointment of delegates under Section 25 is for the term of 10 years. The State Government is required to appoint another delegate when the existing Delegated has:

1. Completed his term.

2. Resigned.

3. Refused to act as Delegate.

4. Become incapable or unfit to act as a delegate.

5. Ceased to be a Parsi.

6. Convicted of an offence under the Indian Penal Code or under any Penal Law involving moral turpitude.

7. Been adjudged insolvent.

8. Died.

Section 26 lies down that all the delegates appointed under the Act is deemed to be ‘Public Servant’ under the Indian Penal Code. The delegates in the individual or in particular cases are selected and appointed by the presiding judge of the Court on the principle of rotation from amongst the delegates. However, before a delegate is selected, the party to the suit can challenge the appointment of the said delegate. It means no person who is opposed by any party in the Suit can be appointed as a delegate in that particular Suit. In this manner, allegation of ‘Personal Bias’ of any particular Delegate in the suit is successfully being avoided.

Jurisdiction of Parsi Matrimonial Courts, under Section 29 is:

(i) Within the limits of whose jurisdiction the defendant resides at the time of filing of Suit.

(ii) The place where their marriage was solemnized,

(iii) In cases where the Defendant has left the territory (at the time of filing the Suit) where the suit could be filed, the same (Suit) may be filed in the Court of the place where the plaintiff resides or where Plaintiff-Defendant last resided together.

(iv) In any case, whether the Defendant resides in the territory to which this Act extends or not, such suit may be brought into the court at the place where the plaintiff resides or where Plaintiff-Defendant last resided together with the Leave (permission) of the Court. The Court, after recording its reasons in writing can grant leave to do so.