Ashirbad Nayak

Anachronistic at best and violative of basic rights at worst, the jury system under Parsi  matrimonial law must be done away with immediately

Evolution of Jury System in India

The jury system was introduced in India by the British. The first recorded case of jury trial in India was concerning the murder of a servant by Ascentia Dawes in Madras in 1665. Since then, the jury system came under intense criticism on the grounds of biasness and the possibility that the jury could be emotionally swayed and influenced by public sentiment. This gained particular notoriety in the wake of the jury trial in the infamous K.M Nanavati case.¹ This was one of the last instances of jury trials in India. While it is a general belief that jury trials were completely abolished in the aftermath of this case, it is not so, as the system still subsists for matrimonial cases of Parsis.

The Law Commission of India recommended the abolition of jury system in its 14^th Report in 1958. The process of removing jury systems from legislations went on through the 1960’s and was culminated via the adoption of Code of Criminal Procedure in 1973. Pursuant to the purge, the only remaining Courts where the jury system still found a place were the Parsi Chief Matrimonial Court and Parsi District Matrimonial Court. Interestingly enough, Commander Nanavati in the above mentioned case was himself a Parsi.

The Parsis

The Parsi community originally hailed from the region of ‘Pers’ in Iran. They later settled in India in Daman and Diu during 600 AD, later spreading to other parts of the country. A close-knit community, Parsis maintained their own separate and distinct practices, which is also reflected in their procedures concerning marriage and divorce.

Marriage is considered as a spiritual discipline under Parsi Law, and marriage and divorce of Parsis in India is presently dealt with under the Parsi Marriage and Divorce Act, 1936 (henceforth referred to as PMDA) and its 1988 amendment. Divorce under this law can be granted on grounds such as non-consummation within a year of marriage, adultery, cruelty, unnatural offence, etc.²

The PMDA has been criticised on the grounds of being unfavourable to the rights of women by denying them right of self-determination, autonomy and adequate access to resources. Attempts at removing the patriarchal stranglehold over Parsi law and reforms designed to address the same, have been unsuccessful. The continued use of the jury system under the PMDA is one of the factors that adversely impacts the rights of Parsi women.³ This uniqueness of the Parsi system has been criticised widely. The evolution of the system and the criticisms levelled towards it have been dealt with under the subsequent heads.

The Jury System in Parsi Law

The Parsis being one of the first communities to embrace the English culture and education system, also inculcated the practice of jury trials into their customs. The usage of Jury system for Parsis was codified in the PMDA by the Federal Assembly which in turn was based on a bill submitted to the Council of State by Sir Pheroze Sethna in 1935. Sections 19 and 20 of the PMDA prescribe the usage of jury system in resolving matrimonial disputes.

Divorce cases for Parsis are to be tried by a five-member jury. These jurors (also referred to as ‘delegates’) are retired and influential members of the Parsi Panchayat (community). They are appointed for a tenure of 10 years by the Chief Justices of Bombay, Calcutta and Madras High Courts, and preside over trials within the territorial jurisdiction of these High Courts. The jury meets few times a year to dispose all pending matrimonial cases. For other jurisdictions, Parsi District Matrimonial Courts are to be constituted which has a similar quorum of jury members. Members of the jury are picked through a ballot from a shortlist of interested jurors, the list of which is prepared by the Parsi Panchayat. Jury duty is considered to be community service and carries nominal remuneration.

The verdicts of the jury are binding but can be contested in the High Court and Supreme Court. The jury have been granted widespread powers, with the only restriction on them being their inability to decide on issues of alimony and child custody.

Criticisms

The jury system has come under fire for its various inadequacies. The most common causes for divorces in Parsi community today are adultery and disputes regarding property. However, in the light of the shooting divorce rates, the jury system has proven to be woefully inadequate and outdated.

Since the PMDA does not specify any time span for completion of the case, and because the jurors meet only few times a year, the divorce applications are stuck in a huge backlog dating back to several years. In some instances the time period between examination and cross-examination of the parties to the divorce case occur several years apart from each other. The endless wait for deciding cases adversely impacts the parties involved in the dispute, with the delay in adjudicating the dispute taking a toll on the emotional, personal as well as financial situation of the parties involved. Moreover, since the dispute is before a jury, whose ability to appreciate the law is inherently lesser than that of the bench, the arguments in Parsi divorce cases are usually more emotionally charged and dramatic. An additional drawback is that the jurors are beset with a strong patriarchal mind-set as the jury is composed almost exclusively of older men, while ironically, most of the plaintiffs seeking divorce are women. The disproportionate representation of women in the jury is glaring. All this has drawn the ire of the Courts, with the Bombay High Court terming the jury system for the Parsis to be an undeserved luxury.

In the 2014 case of Rohinton Panthkay v. Armin Panthkay,⁴ the Court observed that the collection of evidence was being unduly delayed since 2012 as, there had been no session with the jury at all, and under Parsi law the evidence can only be collected in presence of the jury. The Court expressed its displeasure at the slow pace of the jury and called for procedural reforms to be made to the system and observed that such changes would not be against the sanctity of the faith.

However, the most glaring flaws in the jury system were highlighted in a petition before the Supreme Court, arising out of a case concerning a Parsi woman, Mrs. Naomi Sam Irani, who was aggrieved by the failures of the system.⁵ The flaws of the system were illustrated in detail in her petition.

The Naomi Sam Irani case

This petition was brought in the backdrop of the Uniform Civil Code dispute. Mrs. Irani was married for 10 years, and shared two children with her husband. She sought divorce from him on grounds of cruelty before the Bombay High Court. However, even after two years of filing the petition, the jury was not appointed. Thus faced with the inevitable and prolonged delay in progress of the proceedings, she decided to approach the Apex Court.

In her petition before the Supreme Court she challenged the Sections 18, 19, 20, 24, 30, 46 and 50 of the PMDA (which deal with the jurisdiction, constitution and appointment of the jurors) as being violative of Art 14 and 21 of the Constitution. She argued that the PMDA had deprived her of the specialised jurisdiction of normal family courts, and subjected her to mental agony. The system was alleged to have breached Article 14 of the Constitution, which guarantees equality, as it prevents Parsi women from approaching traditional family courts, and availing the benefits extended by them. This places Parsi women on a separate footing vis-à-vis women belonging to other faiths, thereby propagating inequality within the gender on the basis of religion. The validity of personal laws is subject to their testing on the touchstone of fundamental rights, and contravention with the latter can render the personal laws invalid.⁶

It is worth noting that family courts are equipped with child care centres, counsellors, in-camera hearings and trained judges who serve as presiding officers, and these benefits are lacking in the Parsi jury system. Further, the selection and sitting of jury members takes an unreasonable amount of time, which causes unjustified delay in proceeding of the case.

Unlike Hindu⁷ or Christian marriages,⁸ which have the provisions for quick disposal of cases through mediation procedures, the Parsis are deprived of such speedy disposal mechanisms as the PDMA lacks provisions for alternate dispute resolution mechanisms, and the presence of jury is an impediment to mediation proceedings.

The presence of jury members leads to breach of privacy of the parties as it gives random members of the local Parsi community the chance to offer opinions on delicate and personal matters. Moreover, the parties might not be comfortable in adducing evidence or making allegations against each other in presence of the members of their own community. Also, the Act does not prescribe any requisite criteria for qualification as a jury member. Therefore, most of the jury is biased owing to societal norms, and moral values, instead of sound legal or judicial principles.

Having taken cognisance of the matter, the Supreme Court issued a notice to the Central Government, directing it to put forth its views on the issue. The Centre is set to make its submissions in the upcoming few months.

The Road Ahead

The recent cases concerning Uniform Civil Code, unconstitutionality of Triple Talaq, and the Sabarimala verdict, have sparked massive debates and were all welcome steps in the right direction. In the backdrop of these events, the present deliberations regarding the PMDA serve as a ray of hope to thousands of Parsi women. Their plight has long been overlooked or consistently gone unremedied. In many sectors, Parsis have often been regarded as a model community, but Mrs. Irani’s petition brought to the forefront the proverbial chinks in the armour.

The jury system was abolished in the first place after repeated calls from the Law Commission, which kept on reiterating that it had long outlived its benefits. Sixty years after the Nanavati jury trial, the petition by Mrs. Irani highlights the prevalence of this anachronistic colonial relic. Considering the widespread discretion afforded to the jury members, and the lack of parameters for adjudging disputes, it is clearly not in the best spirits of the law to allow such a system to exist.

In an age where women’s rights have finally begun to come to the forefront of legal discourse, the presence of the Parsi jury system is a hindrance that derails the course of speedy and effective justice. The flaws in the jury system are numerous as has already been pointed out above, but in the light of the strong pro-woman and pro-equality judgements of the Supreme Court in recent times, it only remains to be seen and hoped that the present case too shall end on a victorious note for Parsi women with the abolishment of the age-old jury system.

Ashirbad Nayak is a fourth year student of National Law University, Odisha. He has a keen interest in international law and policy.

Image Credit: Chuck Marshall

1 K.M. Nanavati v. State of Maharashtra (AIR 1962 SC 605).