"Tandoorasti" Is A Blessing, Not An "Ashirvad" Ceremony To Constitute Valid Parsi Marriage: Bombay High Court
In a matter of first impression, the Court held that delegates' assistance is permissible for resolving interlocutory questions of fact, dismissing a Parsi matrimonial suit after delegates confirm a 2010 Mumbai ceremony was merely a 'Tandoorasti' blessing.
The Bombay High Court has held that a "Tandoorasti" prayer ceremony is merely a blessing and does not constitute a "Ashirvad" ceremony for a valid Parsi wedding under Section 3 of the Parsi Marriage and Divorce Act, 1936 (PMDA), thereby denying the court jurisdiction to entertain a matrimonial suit.
Applying this principle, the Court found that the November 2010 event held in Mumbai, the sole connecting factor for territorial jurisdiction under Section 29 of the Act, was merely a blessing rather than a solemnisation ceremony. Consequently, the Court held the suit barred by law under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (CPC).
This rested on a consent procedure where a panel of five delegates examined video evidence of the Mumbai event and unanimously determined it was a Tandoorasti blessing, not an Ashirvad ceremony. Upholding the procedure in a question of first impression, the Court held that the exclusion of delegates' aid in "interlocutory applications and proceedings" under Section 19 of the PMDA does not prevent the Court from seeking their assistance when a crucial question of fact must be decided at an interlocutory stage. Reconciling Section 19 with Section 46 of the Act, which vests decisions on questions of fact exclusively in the delegates, the Court held that the two provisions must be read harmoniously so that neither is rendered otiose, and that Section 19 merely qualifies the Court's obligation to seek such aid rather than forbidding it.
A Bench of Justice Somasekhar Sundaresan observed, “The delegates’ unanimous answer, on the Wife’s own evidence, is that the November 2010 Event was a Tandoorasti and not an Ashirvad ceremony. That is an answer upon the community’s ritual, and absent perversity on its face this Court must not sit in judgement over it…Section 3 read with Section 29 of the PMDA, therefore, denies this Court jurisdiction. The parties reside in Perth, and the sole connecting factor was the solemnisation ceremony said to have been conducted in Mumbai. If the November 2010 Event is not a solemnisation ceremony, then that connecting jurisdictional fact is missing. Therefore, the Suit is barred within the meaning of Order VII, Rule 11(d) of the CPC”.
Advocate Parul K. Vedak for the applicant/defendant Advocate Taubon F. Irani appeared for the plaintiff.
“…If the ceremony was not an Ashirvad ceremony, a fundamental requisite of a Parsi marriage would not have been met. This is also a reason why the nomenclature given to the invitation card is not relevant because the necessary ingredients of the jurisdictional fact is the conduct of an Ashirvad ceremony, which the jury has found upon a review of a video recording of the November 2010 Event to not have taken place…The question of fact is whether any marriage ceremony within the meaning of the PMDA at all took place within the territorial jurisdiction of this Court. Evidently, the couple was wedded in Perth, Western Australia in August 2010, although by a civil marriage. The couple visited India in November 2010 and the ceremony that is clearly held to be a Tandoorasti ceremony was conducted in the territorial jurisdiction of this Court. Ms. Vedak’s submission must therefore be accepted: the ceremony having been firmly found not to constitute a ceremony of solemnisation of a Parsi marriage within the jurisdiction of this Court, this Court would not have jurisdiction in the matter”, the Bench further noted.
The wife had instituted the suit in 2018 seeking dissolution of a marriage claimed to have been solemnised in Mumbai on November 20, 2010, along with permanent alimony of Rs 5 crore and interim maintenance. The parties, both resident in Perth, Australia, had earlier undergone a civil marriage there in August 2010, followed by contested proceedings in Australia culminating in final orders on division of assets, child custody and divorce.
By consent of the parties before predecessor Benches, a video of the November 2010 event, tendered by the wife, was placed before the delegates to determine whether it depicted an Ashirvad ceremony. The delegates unanimously found it to be a Tandoorasti ceremony, noting the absence of the customary signing of the marriage document by the parties and witnesses, an element they held to be integral to a valid Parsi marriage.
Addressing the threshold question of the delegates' competence to be involved at all in an interlocutory application, the Court noted that a construction removing the possibility of repugnancy between Section 19 and Section 46 ought to be preferred, so as to preserve the full operation of both provisions in furtherance of the legislative object of protecting Parsi religious custom. Having accepted this procedure, the Court held that neither party could subsequently disown the exercise as an impermissible "mini trial”.
“…when presented with a question of fact in the course of hearing an interlocutory application, the exceptions in Clauses (a) and (d) of Section 19 are arguably exceptions to be read as exceptions to the Court’s obligation to take the aid of the jury rather than an obligation not to be aided by the jury. If seen in this light, a harmonious construction of Section 19 with Section 46 being possible, without rendering one or the other otiose and without treating the implications of one being repugnant to the other. It is settled law that if a construction that removes the scope for repugnancy is plausible, then bearing in mind the legislative policy objective, such a reconciliation that saves the full operation of both provisions would be the most appropriate means of reconciliation. By this interpretation, it would follow that the parties have not, by consent, conferred jurisdiction on the delegates where none exists, and instead, the aid of the delegates in answering the question of fact, which is also consistent with Section 46 of the PMDA, has been approved by my predecessors by consent of the parties”, it noted.
“It is in this context and considering that the procedure for conduct of the proceedings squarely falls in the domain of the Presiding Judge and the parties have had consensus on presenting evidence to the jury, that I have reconciled the implications of Section 19 of the PMDA harmoniously with Section 46, and applied it to the mixed question of fact and law falling for consideration here”, the Bench further said.
On the husband's separate plea of res judicata founded on the Australian divorce decree, the Court held that Section 13 of the CPC was not attracted, since the Australian court had expressly left the Indian proceedings and the husband's alleged Indian assets outside its adjudication.
Neither side addressed Section 19 of the PMDA. Read with Section 46, the exceptions in Clauses (a) and (d) of Section 19 of the PMDA, in my opinion, qualify the Court’s obligation to be aided by the delegates; they do not forbid their aid when a question of fact has to necessarily be answered. The parties have therefore conferred no jurisdiction that the delegates lacked…”, the Bench said.
The Court accordingly allowed the Interim Application and dismissed the suit for want of jurisdiction, directing that costs need not follow the event.
Cause Title: H v. S (Neutral Citation: 2026:BHC-OS:20904)
Appearances:
Applicant/Defendant: Parul K. Vedak, Sanamjeet Kaur Kalsi, Prachi Kamble, Advocates.
Original Plaintiff: Taubon F. Irani, Divya Sharma, Disha Shetty, Advocates.