Bombay HC grants second divorce to Parsi couple that solemnised marriage twice – Hindustan Times

MUMBAI: The Bombay high court on Friday granted divorce by mutual consent to a Parsi couple, which sought a second divorce as they had solemnised marriage twice – one registered under the Special Marriages Act, 1954 and the other the Parsi Marriage and Divorce Act, 1936.

The couple, both Zoroastrian, tied the knot in September 2004 and got it registered under provisions of the Special Marriages Act, 1954, a secular enactment. On insistence of their family members and relatives, on December 21, 2004, they again solemnised marriage as per Zoroastrian rites and rituals and this time got the marriage registered under the Parsi Marriage and Divorce Act, 1936.

A few years after the marriage, temperamental issues caused a serious rift between the spouses and from March 2018, they started residing separately.

After attempts for reconciliation by their family members and relatives failed to bring the spouses back together, last year the couple filed a joint plea before the Thane family court for divorce by mutual consent for getting their marriage registered under the Special Marriages Act, 1954 annulled.

On January 6, 2022, the Thane family court accepted their plea and dissolved their marriage. Thereafter, the couple moved the Bombay high court for second divorce by mutual consent – invoking Parsi Matrimonial jurisdiction of the court to get annulled their marriage solemnised as per Zoroastrian rites and rituals.

A single-judge bench of justice Girish Kulkarni on Friday allowed their joint plea, observing that the scheme of two enactments was such that the earlier divorce granted by Thane court did not automatically annul the marriage performed as per Zoroastrian rites and rituals and therefore the couple had rightly approached the HC for the second divorce.

Justice Kulkarni said because of the savings clause contained in section 42 (Nothing contained in this Act shall affect the validity of any marriage not solemnized under its provisions) of the 1954 Act, the earlier divorce had no effect on the second marriage.

The court said a plain reading of Section 52(2) of the 1936 Act makes it clear that so long as a Parsi is not lawfully divorced from his or her spouse, or the marriage was not lawfully declared null and void or dissolved by a competent Court, he or she shall remain bound by the provisions of the Act.

“It is for this reason the plaintiffs have appropriately filed the present proceedings despite a pre-existing nullity of their marriage,” said the court adding that, there is no provision in these legislations which would bring about an end to the marriages registered by the same couple under both the enactments.