Scherezade Hormuz Mubarakai vs Hormuz Kurush Mubarakai
- Court
- Bombay High Court
CNR No : HCBM020037962018
2026:BHC-OS:20905
IAL.30398.2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 30398 OF 2023
IN
PARSI SUIT NO. 2 OF 2018
WITH
PARSI SUIT NO. 2 OF 2018
Hormuz Kurush Mubarakai …Applicant
IN THE MATTER BETWEEN :
Scherezade Hormuz Mubarakai …Plaintiff
Versus
Hormuz Kurush Mubarakai ….Defendant
Ms. Parul K. Vedak a/w Ms. Sanamjeet Kaur Kalsi, Ms. Prachi Kamble,
for the Applicant/Defendant.
Ms. Taubon F. Irani a/w Adv. Divya Sharma, Adv. Disha Shetty, for the
Plaintiff.
CORAM: SOMASEKHAR SUNDARESAN, J.
PRONOUNCED ON: SEPTEMBER 23, 2026.
JUDGEMENT :
Context and Factual Background:
1. The captioned Parsi Matrimonial Suit i.e. Parsi Suit No. 2 of 2018
(“ Suit ”) is filed by Ms. Scherezade Hormuz Mubarakai (“ Wife ”) seeking
dissolution of marriage contended to have been solemnised in Mumbai on
November 20, 2010; grant of Rs. 5 crores towards permanent alimony;
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interim maintenance of Rs. 1 Lakh per month pending hearing and disposal of
the Suit; and costs.
2. Interim Application (L) No. 30398 of 2023 (“ Interim Application ”) is
filed by Mr. Hormuz Kurush Mubarakai (“ Husband ”), seeking to invoke Order
VII Rule 11 (d) of the Code of Civil Procedure, 1908 (“ CPC ”) to reject the Suit
on the premise that the Suit is barred by law.
3. An event conducted on November 20, 2010 (“ November 2010 Event ”)
lies at the heart of whether this Court has jurisdiction to try this Suit. The
Wife contends that this was a “wedding ceremony” within the meaning of
Section 3 of the Parsi Marriage and Divorce Act, 1936 (“ PMDA ”) while the
Husband contends that this event was a “wedding reception” and did not
entail the solemnisation rituals necessary to attract the jurisdiction of this
Court.
Contentions of Parties:
4. In a nutshell, the grounds sought to be made by the Husband for
rejection of the Suit can be classified under two specific heads:
A] First , that no marriage ceremony that purports to be
subject matter of the Suit, took place in India within the territorial
jurisdiction of this Court. According to the Husband, the November
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2010 Event was a “ Tandoorasti ” ceremony entailing blessings of
elders as is customary with Parsis who wed outside India and visit
India thereafter to enable their relatives to wish them; and that no
solemnisation of a marriage by way of an “ Ashirvad ” ceremony was
performed in India. Therefore, it is contended, the jurisdiction of
this Court under the PMDA is not at all attracted; and
B] Second , in addition, the parties have admittedly already
undergone contested proceedings on divorce as well as division of
assets and custody of their son. These proceedings took place in
Perth, Western Australia, where the couple was married in a civil
ceremony on August 22, 2010. Perth is where the couple has always
resided and continued to reside after getting married and continue
to live after getting divorced. Those proceedings in Perth led to a
firm and final division of assets of the couple, custody of the child,
and a final divorce decree. These outcomes are said to represent a
clear and final adjudication of issues between the very same couple,
and the principles of res judicata would mean that this Suit is barred
by law.
5. In a nutshell, the Wife’s contentions may be summarised thus:
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A] First, the November 2010 Event is essentially an “Ashirvad”
ceremony and not a “Tandoorasti” ceremony. The jury’s opinion
should not bind the Court and trial should be conducted to figure
out whether as a matter of law, the November 2010 Event can be
regarded as a valid marriage ceremony, and validity would require
evidence to be led and trial to be conducted – and that is not a
matter to be determined in the course of an Interim Application.
The Husband is an Irani Zoroastrian, and the implications of the
rituals of that sub-denomination are matters requiring evidence to
be led and tested at trial; and
B] The Australian proceedings explicitly left these proceedings
out of consideration for its implications on the adjudication in
Australia, and on the face of it, principles of res judicata will not be
attracted.
Procedural History:
6. To get to the bottom of the foundational question of fact, the parties
have addressed my predecessor Benches in the matter on how to approach this
question. Each party has been sanguine about its respective positions and
agreed to subject the question to an assessment by the jury. A video of the
November 2010 Event was in fact provided by none other than the Learned
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Advocate for the Wife and that was marked into evidence. This was agreed to
by Learned Advocate for the Husband. With the consent of the parties,
Learned Single Judges of this Court have adopted this path before the
proceedings reached the current stage. A brief outline of that path would be in
order.
7. On August 29, 2024, a Learned Single Judge of this Court passed the
following order:
“Since the Parsi Session has been fixed between 23rd September 2024 to 27th
September 2024 and the issue involved in this Interim Application is with regard to
whether the ceremony on 20th November 2010 was a marriage ceremony between
the Plaintiff and the Defendant or merely a blessing ceremony involving
consideration of the marriage rituals in Parsis, assistance of the delegates at the
Parsi Session would become necessary, therefore list the Interim Application and
the Suit during the Parsi Session scheduled between 23rd September 2024 to 27th
September 2024.”
[Emphasis Supplied]
8. On September 23, 2024, the case was stood over to September 25, 2024,
on which date, the Wife’s Advocate provided a video of the November 2010
Event in a pen drive. The Learned Single Judge was pleased to permit such
pen drive to be taken on record and to be viewed by the jury so that it could
return a finding of fact on whether in their opinion, the ceremony comported
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with an “ Ashirvad ” ceremony or constituted a “ Tandoorasti ” ceremony. The
following extract from the order passed in this regard, is noteworthy:
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“1. Pursuant to earlier orders of this Court dated 29 August 2024 and 23
September 2024, today when the matter is called out, Mrs.Taubon Irani, learned
Counsel for the Plaintiff, submits that a viewing of the video of the ceremony would
assist the Court as well as the delegates present in deciding whether the ceremony
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performed on 20 November 2010 at Mumbai between the Plaintiff and the
Defendant was marriage ceremony between them or merely a blessing ceremony.
2. Mrs.Zenobia Irani, learned Counsel for the Applicant in the Interim
Application (L) No.30398 of 2023 as well as for the Defendant in the suit, has no
objection if the said video is exhibited before this Court as well as the delegates.
3. Mrs.Taubon Irani, accordingly tenders across the bar a pen drive which is
taken on record and marked “X” for the purpose of identification. Under directions
of this Court the said video has been played and viewed by this Court as well as the
Hon’ble delegates.
4. After viewing the same, the delegates are unanimous that the ceremony that
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was performed between the Plaintiff and the Defendant on 20 November 2010 in
Mumbai is not a marriage ceremony but is a Tandoorasti / blessing ceremony.
5. The learned Foreperson of the delegates has been requested by Court to file a
statement of the delegates by tomorrow, after which Court will consider the Interim
Application under Order VII Rule 11 of the Code of Civil Procedure, 1908.
[Emphasis Supplied]
9. On September 26, 2024, the following order was passed:
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1. Pursuant to order dated 25 September 2024, today when the matter is called
out, as requested, the learned Foreperson of the delegates has furnished a statement
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of the delegates which has also been read out by Mr. Errick Elavia, the Foreperson,
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categorically stating that the video clip that was viewed on 25 September 2024 is
not a marriage ceremony but only a blessing / Tandoorasti ceremony. The
statement duly signed by the delegates is taken on record and marked “Y” for the
purposes of identification.
2. Both the learned counsel agree that the stage for the findings / opinion of the
Jury in respect of the ceremony in question stands concluded, however, the matter
be listed for arguments on the legal provisions of the Parsi Marriage and Divorce
Act, 1936 and the Code of Civil Procedure, 1908.
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3. Accordingly, list on 14 November 2024.
4. This Court appreciates the presence of the delegates elected to this Court in
the trial of this Suit.
[Emphasis Supplied]
10. The jury has not only recorded that the ceremony is not a marriage
ceremony ( Ashirvad ) as followed by Parsi / Iranian Zoroastrians in India, but
has also drawn the conclusion that the video entered into evidence was of a
blessing ceremony ( Tandoorasti ) which has become a common practice among
Zoroastrian couples who have married in another country. This is an
emphatic finding on the community’s religious ritual as well as on what is
customary now among overseas-resident Parsi couples conducting ceremonies
in India after getting married abroad.
11. The statement of the jury marked “Y” for purposes of identification is
extracted below:
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We as members of Jury unanimously agree that the said ceremony shown on
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25 September 2024 did not appear to be the complete marriage ceremony as
followed by Parsi/ Irani Zoroastrians in India.
On asking other members of the Irani Zoroastrian residing in India the said
video clip did not match their customs too. We noticed that an important part of every
Parsi/ Irani marriage ceremony is the signing of a document by both the assenting
parties as well as one witness from each side was missing from the video clip.
As mentioned by learned advocate Mrs. Taubon Irani some minor differences
in marriage rituals are practiced by the Irani sect of Zoroastrians. However, signing
of document for registration of marriage is a common and compulsory part of all
rituals pertaining to the marriage ceremony in India. Every videographer captures
that moment as it is an integral part of the function.
Hence, We conclude that the video clip shared was of Blessing ceremony
which has become a common practice of Zoroastrian couples who have married in
another country.
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Dated this 26 day of September 2024.
[Emphasis Supplied]
12. It is apparent that the unanimous view expressed by the delegates is
unequivocal and clear. The core missing element of the ceremony conducted
in the November 2010 Event is the signature by the husband and wife with a
witness from each side. The presence of the witnesses is an integral feature of
the very statutory definition and meaning of a Parsi marriage as will be seen
later in this judgement.
13. Eventually, after being part-heard before the next Learned Single Judge
having roster in the matter, the captioned proceedings came up before me. By
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consent a final hearing of the Interim Application was scheduled, after the
Advocates informed me that the matter is ripe for hearing.
Analysis and Findings:
14. I have heard Ms. Parul Vedak, Learned Advocate on behalf of the
Husband and Ms. Taubon Irani, Learned Advocate on behalf of the Wife. With
their assistance, I have examined the material on record.
15. A core question of fact as to whether the November 2010 Event was an
“ Ashirvad ” ceremony falls for consideration, and with that, the mixed question
of fact and law, as to whether the Interim Application should be allowed,
holding that the Suit is barred by any law by reason of there having been no
marriage contracted in the jurisdiction of this Court, has to be answered.
Indeed, the parties have also engaged with the question of whether by reason
of the divorce between the parties having been granted in Perth, Western
Australia, principles of res judicata would apply would also have to be
considered.
Jurisdictional Fact Involved:
16. The PMDA applies to “marriages” (defined in Section 2(6) of the PMDA)
between “Parsis” (defined in Section 2(7) of the PMDA) i.e. marriages between
Parsi Zoroastrians. Section 3 of the PMDA, which defines requisites of a Parsi
marriage reads thus:
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3. Requisites to validity of Parsi marriages.—
(1) No marriage shall be valid if—
(a) the contracting parties are related to each other in any of the degrees of
consanguinity or affinity set forth in Schedule I; or
(b) such marriage is not solemnized according to the Parsi form of ceremony
called “Ashirvad” by a priest in the presence of two Parsi witnesses other than such
priest; or
(c) in the case of any Parsi (whether such Parsi has changed his or her religion
or domicile or not) who, if a male, has not completed twenty-one years of age, and if
a female, has not completed eighteen years of age.
(2) Notwithstanding that a marriage is invalid under any of the provisions of sub-
section (1), any child of such marriage who would have been legitimate if the
marriage had been valid, shall be legitimate.
[Emphasis Supplied]
17. Both Ms. Irani and Ms. Vedak agree that for attracting the jurisdiction
of this Court, the jurisdictional fact to be proven is that a Parsi marriage ought
to have been validly solemnised according to the Parsi form of ceremony called
“ Ashirvad ” and that such ceremony has been performed by a priest in
Mumbai, in the presence of two Parsi witnesses other than such priest. What
they differ on is whether the November 2010 Event was an “ Ashirvad ”
ceremony or a “ Tandoorasti ” ceremony.
18. Section 29 of the PMDA reads thus:
29. Court in which suits to be brought.—
(1) All suits instituted under this Act shall be brought in the Court within the
limits of whose jurisdiction the defendant resides at the time of the institution of the
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suit or where the marriage under this Act was solemnized.
(2) When the defendant shall at such time have left the territories to which this Act
extends such suit shall be brought in the Court at the place where the plaintiff and
defendant last resided together.
(3) In any case, whether the defendant resides in the territories to which this Act
extends or not, such suit may be brought in the Court at the place where the plaintiff
resides or at the place where the plaintiff and the defendant last resided together, if
such Court, after recording its reasons in writing, grants leave so to do.
[Emphasis Supplied]
19. The parties, for all purposes of the PMDA, reside in Perth, Western
Australia. The only connecting factor of this marriage to this Court would be if
the November 2010 Event were to be regarded as a ceremony solemnising
marriage since that event took place in Mumbai. Save and except for this vital
link, none of the other parameters are relevant and indeed, neither party has
asserted that their place of residence is in the territorial jurisdiction of this
Court.
20. Therefore, whether the ceremony in question was one or the other,
poses a question of fact. On the answer to this question of fact would depend
the question of law as to whether the jurisdiction of this Court has been
attracted for this Suit to be maintainable.
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Role of Delegates – Section 46 and Section 19:
21. Now, under Section 46 of the PMDA, questions of fact necessarily fall in
the domain of the “jury” i.e. the five delegates who are selected under Section
27 of the PMDA from the panel of delegates appointed by the State
Government under Section 24 of the PMDA, and aid the Court under Section
19 of the PMDA.
22. Section 46 of the PMDA, extracted below, is noteworthy:
46. Determination of questions of law and procedure and of fact.—
In suits under this Act all questions of law and procedure shall be determined by the
presiding Judge; but the decision on the facts shall be the decision of the majority of
the delegates before whom the case is tried:
Provided that, where such delegates are equally divided in opinion, the decision on
the facts shall be the decision of the presiding Judge.
[Emphasis Supplied]
23. Section 46 regulates the devolution of powers between the Presiding
Judge and the jury. All questions of law and procedure fall in the domain of
the Presiding Judge while decisions on facts shall be the decision of the
majority of the delegates “ before whom the case is tried ”.
24. The parties engaged with the Presiding Judge and agreed on the
procedure, the approach had been agreed to subject the question of fact of
what the November 2010 Event constituted, to trial by the jury. Evidence for
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such trial of this question of fact was provided by the Wife and such evidence
was agreed to be taken on board by the Husband. Whether the ceremony
conducted at the November 2010 Event was an “ Ashirvad ” is squarely a
question of fact that was presented to the jury by consent of the parties. The
parties have always had consensus on this issue, and it is with their consent
that the question of fact was subjected to trial by the jury and was presented to
the jury. The jury has presented an unequivocal and unanimous view that the
ceremony in question was not an “ Ashirvad ” ceremony which is what
constitutes a ceremony of solemnisation of marriage. Instead, the jury is
unanimously and firmly of the view that the ceremony was a “ Tandoorasti ”
ceremony.
25. The aforesaid answer on a core question of fact would ordinarily firmly
seal any doubt about how the question of fact has to be answered. The very
scheme of the PMDA is to have questions of fact answered by the jury. It is
only when the jury is split in its verdict that the Court would have a say in
answering such questions of fact. However, in the peculiar factual matrix of
this case, this analysis cannot be completed without dealing with one facet of
the PMDA, which neither side has addressed. The Interim Application,
although on the subject of rejection of the Suit is an “interlocutory
application”. Therefore, the provisions of Section 19 of the PMDA become
important and are reproduced below:
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19. Parsi Chief Matrimonial Courts.—
The Court so constituted in each of the Presidency-towns shall be entitled the Parsi
Chief Matrimonial Court of Calcutta, Madras or Bombay, as the case may be. The
local limits of the jurisdiction of a Parsi Chief Matrimonial Court shall be
coterminous with the local limits of the ordinary original civil jurisdiction of the High
Court. The Chief Justice of the High Court, or such other Judge of the same Court as
the Chief Justice shall from time to time appoint shall be the Judge of such
Matrimonial Court, and, in the trial of cases under this Act, he shall be aided by five
delegates, except in regard to—
(a) interlocutory applications and proceedings;
(b) alimony and maintenance, both permanent as well as pendente lite;
(c) custody, maintenance and education of children; and
(d) all matters and proceedings other than the regular hearing of cases.
[Emphasis Supplied]
26. It will be seen that the Court has to be aided by the jury in the trial of
cases under the PMDA except in the case of interlocutory applications and
proceedings (Clause (a) of the provision) and also in all matters and
proceedings other than the regular hearing of cases (Clause (d) of the
provision). In other words, under Section 19, which along with Section 46,
stipulates the division of labour and the devolution of powers between the
Presiding Judge and the jury, the Court is obliged to be aided by the jury in the
trial of cases under the PMDA, but there is an exception for interlocutory
applications and matters and proceedings other than the regular hearing of
cases.
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27. One may therefore argue that the Court must not be aided by the jury at
all in consideration of the Interim Application, by operation of Clause (a) of
Section 19 of the PMDA. An equally reasonable view of Section 19 can be that
the Court is obliged to be aided by the jury in the trial of cases with the
exception to such obligation being in the case of interlocutory applications.
Therefore, 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.
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28. 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.
29. Whether the November 2010 Event was a marriage ceremony entails a
question of jurisdictional fact. It is only if this question of fact is answered in
the affirmative that this Court would even have jurisdiction to try the Suit.
That question of fact has to be answered by the jury by reason of Section 46 of
the PMDA.
30. On a separate note, it is also contended by Ms. Irani on behalf of the
Wife that CPC would not apply at all and no application under Order VII, Rule
11 can be filed in proceedings under the PMDA. The opening provisions of
Section 45 of the PMDA is invoked, and that reads thus:
45. Provisions of Civil Procedure Code to apply to suits under the Act.— The
provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall, so far as the
same may be applicable, apply to proceedings in suits instituted under this Act
including proceedings in execution and orders subsequent to decree:
Provided that the presiding Judge shall read out to the delegates the relevant
sections of this Act, and may, if he considers it necessary so to do, explain the same:
Provided further that a verbatim record shall be made of what the presiding Judge
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read out or explains to the delegates.
[Emphasis Supplied]
31. Ms. Irani would contend that in Parsi matrimonial cases, what is filed is
a “Petition” and not a “Plaint”. Therefore, it is contended that CPC would be
inapplicable in such proceedings. In reliance upon Section 45 and the
aforesaid distinction between “Petitions” and “Plaints” that Ms. Irani contends
that seeking dismissal of the Suit alleging that there had been no marriage in
India, is not tenable under the PMDA.
32. Section 45 of the PMDA, as a matter of fact, makes CPC applicable to
Suits instituted under the PMDA as far as applicable ( mutatis mutandis ).
Therefore, the foundational first principles of not wasting the time and
resources of the Court and of the litigants in the absence of a jurisdictional fact
would apply to proceedings under the PMDA. Whether the instrument of
setting the proceedings in motion is titled a “Plaint” or a “Petition” would be
irrelevant. Section 45 makes the CPC applicable as far as possible, and
therefore, a party that is desirous of contending that it is being vexed with
proceedings that are barred in law, is entitled to seek a rejection or dismissal
of the proceedings. The parties have engaged on matters of procedure with
the predecessor Presiding Judges, who have directed a course of action in
terms of the devolution of power in them under Section 46 of the PMDA. That
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procedure has entailed marking the video recording of the November 2010
Event into evidence and getting the jury to answer the question of fact.
33. It was at the Wife’s instance that the video of the event was taken into
evidence. The jury has since spoken. In my view, the preliminary issue
framed by consent has been subjected to a procedure stipulated by the
predecessor Presiding Judges, and if it is apparent to the Court that the
proceedings are without jurisdiction by reason of how the question of fact has
been answered by the delegates in accordance with the procedure approved by
the Court by consent of the parties, the consequences would follow.
34. This is precisely where one has to examine the scope of adjudication of
the present Interim Application, and the peculiar nature of it, also bearing in
mind that CPC would apply only as far as applicable ( mutatis mutandis ), and
giving primacy to the special legislation status of the PMDA when reconciling
it with incongruities arising from CPC and the law declared therein.
35. Admittedly, no facet of procedure has been aided by the delegates. It is
after the due process for conduct of the trial was agreed by the parties that the
question of getting the delegates to give their view on this question of fact was
taken. Such a decision is squarely in the domain of the predecessor Presiding
Judges, and the parties engaged in that process. The aid of the jury was to
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answer the question of fact as to whether the November 2010 Event was an
“ Ashirvad ” ceremony and nothing else.
36. If the Wife’s current contentions, after agreeing the procedure of
subjecting the question of fact to the aid of the delegates, that the delegates
have no say in the matter, were to be accepted, it would fly in the teeth of the
provisions of Section 46 of the PMDA, apart from resulting in abuse of process
of the Court. It is not as if the jury has been asked to read the pleadings and
return its view. Instead, as a matter of procedure, it was agreed that the video
recording and that too, one provided by the Wife would be marked into
evidence and the jury would be called upon to examine it and return its
findings on what the ceremony constituted. That process having been done, it
is the question of fact that has been answered by the jury on the basis of the
evidence led by and agreed to by the parties.
37. It is in this peculiar factual matrix that with the aid of the answer
returned by the delegates unanimously, that the Suit deserves to be dismissed.
I have separately dealt with the facet of res judicata later in this judgement,
where I have not accepted the Husband’s contention, because the Australian
proceedings explicitly left the captioned proceedings out of its zone of
consideration leaving it to the parties to deal with it on merits.
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38. I have given my anxious consideration to the various contentions
presented by Ms. Irani to assail the finding that November 2010 Event was not
a Tandoorasti ceremony but actually an Ashirvad ceremony. I have applied
my mind to the assessment of whether this question could even be considered
as a question of law, since, arguably, the meaning of the term “ Ashirvad ” has
implications for the question of law as to whether the jurisdiction of this Court
is attracted, which questions combine to constitute the mixed question of fact
and law. I have considered the objections in the following paragraphs.
39. First , Ms. Irani would contend on the Wife’s behalf that “ Ashirvad ”
means blessings and admittedly the ceremony is one of blessing the couple. I
am afraid this is a simplistic objection. Such a proposition, based purely on
the etymology of the term, would hardly need any evidence led by the Wife to
be admitted into evidence. The parties had consensus on having the jury
examine the question only because it was a question of fact. If all that was
needed to appreciate the ingredients of a Parsi marriage is the etymology of
the word in Sanskrit and Persian, the Court only has to reach out to a
dictionary. This is completely contrary to the very scheme of the PMDA. A
jury comprising Parsi Zoroastrians is an integral feature of the PMDA only to
preserve and protect the Parsi community’s rituals, customs and beliefs, from
the beliefs and notions of the wider society. The scope of such preservation is
also restricted by design only to marriages between Parsis solemnised in India.
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This is precisely why there had been consensus on the delegates examining the
evidence provided by the Wife and giving their answer. The jury has spoken
and in the absence of any perversity, it would be inappropriate for this Court
to disregard the conclusion of the jury on what is, in essence, an answer on the
community’s custom.
40. Second , Ms. Irani submits that jury has only expressed its “opinion” and
this is not a “verdict”. The jury’s opinion is its “decision” on the point of
whether the ceremony in question would partake the character of Ashirvad or
of Tandoorasti . The verdict on the Interim Application would indeed be that
of the Court, but such verdict would need to be informed and aided by the
answer given by the jury on the question of fact as to whether the ceremony
was one or the other. In the absence of any basis to undermine the decision of
the jury, it would not be appropriate to overreach the answer returned by the
jury.
41. Third, Ms. Irani would contend that the priests who conducted the
November 2010 Event are priests of the Husband’s family and therefore their
view would need to be discounted. Ms. Irani would point to the penal
provisions of Sections 12 and 13 of the PMDA to point out that the priests have
a statutory obligation to be truthful and not to be partisan. When approached
on behalf of the Wife by Ms. Irani by a letter dated March 17, 2017, asking
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them to issue a certificate of marriage so that the marriage could be registered,
the priests stated by a letter dated March 23, 2017 that they had not performed
an Ashirvad ceremony and that they had only performed a Tandoorasti
ceremony.
42. After the jury’s view, Ms. Irani would present a counter-view from
another priest to contend that the photographs appended to the Plaint would
show various men holding candles around the couple and that under the
customs of the Irani Zoroastrian community to which the Husband belongs,
such an act is part of an Ashirvad ceremony. The PMDA does not make any
differentiation in rituals of sub-denominations. This being a community
question, the question of fact is preserved for being answered by the
communal jury. Ms. Irani indeed provided a video to buttress her point and
sought that the video be marked into evidence, and after examining the video,
the jury has arrived at a unanimous decision that the November 2010 Event
was not an Ashirvad ceremony but was a Tandoorasti ceremony. In the
absence of any specific differentiation being made in the PMDA or in case law
shown by Ms. Irani about how a materially different standard should be
applied if one of the spouses were to be Irani Zoroastrian, there is no basis for
the Court to second-guess the answer given by the jury. The competing views
on what the ceremony was, has been answered by the jury.
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43. I am unable to sit in judgement over the jury’s unanimous view that the
ceremony was not an Ashirvad ceremony. It is also nobody’s case that the
priest who has made the statement about the Irani Zoroastrian element has
seen any part of the videography of the November 2010 Event that was not
part of what the jury was shown. The Wife has not sought that the jury be
reconvened, and instead the parties pressed for a final hearing. 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.
44. 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
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within the jurisdiction of this Court, this Court would not have jurisdiction in
the matter.
45. Fourth, Ms. Irani would contend that video evidence is unreliable. She
would point to the language in the jury’s statement to indicate that the video is
not a complete footage of what transpired at the ceremony. This has to be
stated to be rejected since it was Ms. Irani who provided the video on behalf of
the wife for consideration by the jury and this Court. That video has been
examined to return a decision. Indeed, the Wife must be presumed to have put
her best foot forward when the video was presented, without editing from it
anything that would help her case. The very evidence led by the Wife cannot
be called into question by the Wife after the appreciation of the evidence
turned out to not support her case.
46. Fifth, Ms. Irani would rely on Section 17 of the PMDA to indicate that
formal irregularity would not invalidate a marriage. Merely because a
certificate was not issued for a marriage, or because it was not sent to the
Registrar or that it was defective or incorrect, the marriage would not be
invalid. Therefore, she would contend that the trial should run its full course
and eventually a decision may be taken as to whether the ceremony that took
place was a marriage ceremony within this Court’s territorial jurisdiction. I
am afraid this is not a valid objection inasmuch as the parties agreed to the
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question as to what the November 2010 Event constituted, as a preliminary
question of fact and it was the Wife who provided the video in support of the
trial of the question.
47. Not only is the contention that the finding is one of a formal irregularity
misconceived – it is a substantial issue and not a matter of form – but also the
contention that there cannot be a mini trial at this stage does not fit the factual
matrix in this case since by consent of the parties, the predecessor Benches of
this Court adopted the procedure of framing the preliminary question of what
the November 2010 Event constituted, and subjecting it to review by the jury.
48. Before closing the discussion in this issue, it would be important to
touch upon an important differentiating facet and nuance. Indeed, when
considering an application under Order VII, Rule 11 of the CPC, one must look
only at the Plaint and the annexures that the Plaint relies upon. However, in
the facts of this case, the parties had consensus that the Court must answer a
preliminary question as to a jurisdictional fact, namely, whether the November
2010 Event constituted an Ashirvad or a Tandoorasti ceremony. Therefore, it
is apparent to me that the parties had consensus that this is a preliminary
issue that got framed at the threshold and by consent, the evidence in this
regard was led.
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49. After having consented to and having invited a trial of a preliminary
issue, and after fully participating in such trial of a preliminary issue, it would
not be open to either party to then contend that evidence ought not to have
been examined and that the exercise wrongly constitutes a “mini trial” at the
stage of an Order VII, Rule 11 application. Therefore, the principle of estoppel
and the bar on a party approbating and reprobating, would become applicable
in the peculiar factual matrix of this case.
Res Judicata Contention:
50. Against this backdrop, it is also important to examine the contention of
res judicata raised on behalf of the Husband, the principles therefor, flowing
from Section 13 of the CPC.
51. Before extracting and dealing with these provisions, it is noteworthy
that the application for a marriage certificate in India was made by the Wife
with the priests in 2017, which is seven years after the event. It is a matter of
record, as seen from the Plaint itself, that the parties had a civil marriage in
Perth in August 2010. The Wife has lived in Australia since the age of 12 and is
an Australian citizen. The parties separated in March 2013 and resumed living
together in an identified jointly-occupied property in February 2014, and the
Husband moved out in January 2015, all in Perth. The parties acquired two
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immovable properties and a café in Perth. Both the parties have only worked
and lived in Australia after marriage.
52. Proceedings were initiated by the Wife in February 2016, initially only in
relation to parenting orders, and later for financial relief in June 2016, after
the Husband’s counter was filed seeking financial reliefs. The Wife sought a
marriage certificate in India in 2017 and instituted the captioned Parsi
Matrimonial Suit in January 2018.
53. The parties have only resided in Australia after their marriage and
throughout their short-lived married life. Proceedings for division of assets;
for custody of their child; and for divorce, were all pursued in Perth. These
proceedings led to: (i) a final order on division of assets dated March 13, 2020
(“ Assets Order ”), in proceedings commenced in February 2016 after the
separation and before the formal divorce, the claim for alteration of property
interests having first been raised by the Husband in his response dated April
21, 2016; (ii) an order on parenting arrangements dated September 19, 2019
(“ Custody Order ”), passed by consent during the pendency of the proceedings
for division of assets, by which a final order was made for the child to live with
the Wife while detailed interim orders were made as to parental responsibility
and the Husband’s time with the child, and which was subsequently modified
by a further parenting order dated September 18, 2023; and (iii) a final order
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of divorce dated July 5, 2021 to take effect on August 6, 2021 (“ Divorce
Order ”), passed after the aforesaid two orders.
54. The Assets Order was preceded by reasons for judgement delivered on
the same day in Mehta and Mubarakai [2020] FCWA 37 (O’Brien J) , annexed
to the Interim Application as Exhibit “D-1”. Since both sides have addressed
the effect of those reasons on the plea of res judicata , the material paragraphs
are extracted below:
17 The wife commenced proceedings on 22 February 2016 seeking parenting
orders only. The husband filed a response on 21 April 2016, seeking parenting orders,
and orders for the alteration of property interests. The wife filed a reply on 17 June
2016 setting out the financial relief she sought.
19 On 12 January 2018 the wife commenced proceedings in the Parsi Chief
Matrimonial Court at Bombay (“the Indian proceedings”). In the document filed to
initiate those proceedings she sought a dissolution of the marriage, a lump sum by
way of “permanent alimony”, orders for interim maintenance and litigation costs,
and “any other and further relief [the court] deems fit and proper in the interest of
justice.” In the same document, she disclosed to the Parsi Court the proceedings on
foot in this court.
20 Counsel for the wife advised that the amount sought in the Indian proceedings
by way of “permanent alimony” was in excess of AUD $1 million.
216 Additionally, and as already noted, while I am unable to make positive
findings as to the ownership by the husband of property overseas, let alone the value
of that property, I accept the submissions of counsel for the wife to the effect that I
should infer that at the very least the husband has available to him undisclosed
financial resources overseas.
217 The impact of that inference on the just and equitable division of the identified
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property available to the parties in Australia, however, is in my view reduced by the
fact that the wife continues to have on foot financial proceedings in India, in which
she seeks the payment of an amount equivalent to not less than $1 million from the
husband. That is so, as any higher adjustment based on nondisclosure and the
inferences arising from it could only be based on the premise that further recovery by
the wife of any entitlement based on overseas property or resources is at best highly
unlikely.
218 In the absence of any useful evidence on the point, I am unable to reach any
informed view as to the basis in Indian law for the wife’s claim, its legal merits, or its
practical prospects of success. I am also unable to make any finding as to the impact
on those matters, if any, of the conclusion of the financial proceedings between the
parties in this court. It was open to the wife, bearing in mind that the solicitor
instructed by her in the Indian proceedings gave evidence, to adduce evidence in
relation to those matters if she chose to do so. It is also reasonable to infer that she
could, if she chose, have instructed that same solicitor to conduct at least basic
enquiries in the nature of title searches and the like to support her contention that the
husband owns real property in India, and to adduce evidence accordingly. She did
neither.
229 The proposed outcome will see the husband retaining property and
superannuation which, after deduction of all liabilities for which he is to retain
responsibility, has a value of $223,566. He will also, of course, retain the use and
benefit of whatever property and resources he may have overseas, subject only to any
steps the wife might successfully take against him in the Indian proceedings.
[Emphasis Supplied]
55. In this case, both parties have actively participated in the proceedings in
Australia. The Wife was represented by experienced counsel at the trial in
Perth, while the Husband was self-represented only at the stage of the hearing.
Evidence about the captioned proceedings was led orally by telephone by Ms.
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Irani, as to the status of the proceedings commenced by her in the Parsi Court
at Bombay, but no evidence was led on the Husband’s Indian assets. The
Court in Perth made it clear that it was unable to return positive findings as to
the ownership of property outside Australia, let alone the value of such
property. At the least, the Court found it tenable to infer that the Husband
had available to him undisclosed financial resources outside Australia.
56. However, the Court held that the adversity of the inference was reduced
by the fact that the Wife continued financial proceedings in India, seeking the
equivalent of at least AUD 1 million. The only premise that could be drawn by
the Australian court was that at best any further recovery based on overseas
property of the Husband was unlikely. This was because of the sheer absence
of any useful evidence led by the Wife to indicate the basis of the claim in
India, its legal merits or its practical potential for success. Therefore, the
impact of the captioned Suit was left out of consideration in the Australian
proceedings. It was pertinently noted that at least basic enquires in the nature
of title searches and the like to support the contention that Husband really
owned property in India, could have been made but was not made.
57. To cut a long story short, the Australian decision left out of
consideration any Indian assets of the Husband, leaving him to retain the use
and benefit of any such unascertained property that he may have in India,
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subject only to any steps the Wife might successfully take against him in the
captioned Parsi Matrimonial Suit. Therefore, it would not be possible to hold
that any Indian asset forms part of the adjudication in Australia. Instead, the
Australian Court left it open to the Wife to pursue the Indian proceedings on
merits, despite having commented adversely on the absence of any evidence
being brought to bear about Indian assets.
58. In this view of the matter, the decree of the foreign court having left the
Indian assets out, it cannot be conclusively stated that the discovery and claim
on Indian assets forms subject matter of what was adjudicated in Australia.
Therefore, one must now apply to the aforesaid factual matrix, Section 13 of
the CPC, which reads thus:
13. When foreign judgment not conclusive .-
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated
upon between the same parties or between parties under whom they or any of them
claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect
view of international law or a refusal to recognise the law of India in cases in which
such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to
natural justice;
(e) where it has been obtained by fraud;
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(f) where it sustains a claim founded on a breach of any law in force in India.
[Emphasis Supplied]
59. The matter of divorce in the marriage between the same parties has
been dealt with in Australia, with participation by both parties. The marriage
that the Australian Court was dealing with was the civil marriage between the
parties. The Australian Court left out of its assessment the merits of the
potential prospects of the captioned Parsi Matrimonial Suit, in the absence of
any evidence being led on its potential prospects, and indeed any evidence on
any assets really owned by the Husband in India. Therefore, from the
perspective of Section 13 of the CPC, which is a facet of res judicata and comity
of courts, it cannot be said that whether there was a Parsi marriage ceremony
conducted in India and whether there are any assets in India, are facets
covered by the adjudication in Perth, Australia. Therefore, from the
perspective of Section 13 of CPC, it cannot be contended that principles of res
judicata as flowing from Section 13 of CPC can be said to be attracted to the
facts of this case. If anything, the proceedings in India were indeed noticed in
the proceedings in Australia, and for reasons set out, the merits, relevance and
prospects of the Indian proceedings were left out completely in the Australian
adjudication.
60. If there is any unresolved issue over any assets said to be held in India
over which a claim may validly be made by the Wife, the issue really boils
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down to whether the captioned Parsi Matrimonial Suit constitutes the valid
avenue for resolving those elements of the dispute. It is in that context that
the analysis of whether this Court has jurisdiction in view of the finding of the
jury that no Parsi marriage ceremony took place has to run independent of the
Husband’s contentions on res judicata . I am not persuaded to accept the
contentions of res judicata based on the Australian proceedings as raised by
Ms. Vedak, particularly in view of the explicit findings in Australia that it
noticed the Indian proceedings and was keeping the Indian proceedings
completely out of consideration.
Case Law Analysis:
1
61. The Husband relies on Bhaurao Lokhande to contend that a marriage
that is not conducted ceremonially in the manner personal law stipulates is no
marriage at all, and that the term “solemnize” means “to celebrate the
marriage with proper ceremonies and in due form”. Merely going through
some ceremonies with the intention that the parties be taken to be married
does not make them ceremonies stipulated by law or approved by established
custom. Such marriage ceremony, if not valid under applicable law, “is no
2
marriage in the eye of law”. Reliance is also placed on Dolly Rani which
1 Bhaurao Shankar Lokhande & Anr. v. State of Maharashtra & Anr., 1965 (2) SCR 837,
decided on February 1, 1965.
2 Dolly Rani v. Manish Kumar Chanchal, Transfer Petition (C) No. 2043 of 2023, 2024 INSC
355, decided on April 19, 2024
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applies the same reasoning to Section 7 of the Hindu Marriage Act, 1955, and
adds that a mere registration leading to issue of a certificate in the absence of
the requisite ceremony confers no legitimacy because registration under
Section 8 “is only to confirm that the parties have undergone a valid marriage
ceremony”. Both these judgements were decided on evidence — Bhaurao after
a criminal trial, Dolly Rani on an admitted state of facts in an application
under Article 142 of the Constitution — neither was a case of rejection at the
threshold. Both address validity, whereas the question in this Suit is whether
any ceremony of solemnisation at all took place within the jurisdiction of this
Court.
3
62. The Husband also relies on R. Viswanathan for the proposition that
Section 13 of the Code of Civil Procedure, 1908 “incorporates a branch of the
principle of res judicata” and extends it to judgments of foreign courts
competent in the international sense. In view of my findings on facts in the
context of Section 13 of the CPC, this judgement does not need any further
analysis.
4
63. Reliance is also placed by the Husband on Sharmishtha , which holds
that a foreign divorce decree needs no confirmation in India provided it
3 R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, Civil Appeals Nos. 277 to 283 of 1958,
decided May 4, 1962, [1963] 3 SCR 22.
4 Sharmishtha v. Sujoy Mitra, C.R.P. No. 120 of 2008, 2008:DHC:4412, order dated August
4, 2008.
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satisfies Section 13, and that a second divorce petition is not maintainable
where one has already been obtained abroad. In that case, the wife had
accepted notice, appeared in Pennsylvania, and expressly acknowledged the
decree’s validity and did not dispute the husband’s status as a divorcee. In the
instant case, it is nobody’s case that the Wife did not participate in the
proceedings that led to the divorce as well. In fact, the parenting and financial
proceedings were but in the context of the culmination in divorce. What the
Australian Court declined to form a view on is the financial claims made in
India on assets alleged to be owned by the Husband outside Australia.
5 6
64. The Wife relies on Bhau Ram , P. V. Guru Raj Reddy and Central
7
Provident Fund Commissioner for the settled rule that rejection is a drastic
power exercisable only on the averments in the plaint read as a whole, and
that the defendant’s written statement or application is wholly immaterial at
8
that stage. Shobha Tomar goes further and is the most direct of these
citations, holding that an application under Order VII, Rule 11 is not
maintainable in matrimonial proceedings at all and that Family Courts are
“well advised to reject such applications”. However, Shobha Tomar turns on
5
Bhau Ram v. Janak Singh, Supreme Court, decided July 20, 2012, paragraphs 6, 8 and 9.
6
P. V. Guru Raj Reddy Rep. by GPA Laxmi Narayan Reddy & Anr. v. P. Neeradha Reddy &
Ors., Supreme Court, decided February 13, 2015, paragraph 5.
7 Central Provident Fund Commissioner & Ors. v. Lala J. R. Education Society & Ors., Civil
Appeal No. 9840 of 2016, decided September 26, 2016, paragraphs 3 and 5,
MANU/SC/1161/2016
8 Shobha Tomar v. B. S. Tomar, Rajasthan High Court, Civil Writ Petition No. 3136 of 2018,
decided May 2, 2018, paragraphs 4 to 7.
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Section 21 of the Family Courts Act, 1984, not on Section 45 of the Parsi
Marriage and Divorce Act, 1936, whose language (“so far as the same may be
applicable”) is different. Moreover, Central Provident Fund Commissioner , as
quoted in the Plaintiff’s own Written Notes, itself contains the distinction that
“rejection of a plaint on institutional grounds is different from dismissal of a
suit at pre-trial stage on the grounds of maintainability. For dismissal on a
preliminary issue, the Court is entitled and liable to look into the entire
documents including those furnished by the defendant.” In my view, this
judgement supports, rather than undermines, the reasoning that by consent,
in the Interim Application filed under Order VII, Rule 11 of the CPC, the
parties engaged in a trial of a preliminary issue of determining a jurisdictional
fact.
9
65. The Wife also relies on Rohinton Minoo Surty , to contend that a decree
dissolving a marriage under a different enactment does not dissolve the Parsi
marriage, which must be separately annulled under the PMDA. The Court
accepted that the scheme obliges parties to take “dual proceedings”, and
rejected the suggestion that a second decree was unnecessary. The reasoning,
however, rests on two planks that will need testing against these facts.
Paragraph 12 turns on Section 42 of the Special Marriage Act, 1954, which
contains an express saving provision that does not have a parallel being
9 Rohinton Minoo Surty & Anr., Parsi Suit No. 23 of 2021, Bombay High Court, judgment
dated February 18, 2022, paragraphs 10 to 14.
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pressed into service as a matter of the law governing the Australian Divorce
Order. Moreover, Rohinton Minoo Surty , proceeds entirely on an undisputed
Ashirvad ceremony performed and followed by a due registration under the
PMDA. In the present Suit this very jurisdictional fact was framed as a
preliminary issue and has been answered unanimously by the jury adverse to
the Wife by holding that the November 2010 Event is not an Ashirvad
marriage ceremony conducted in Mumbai. Put differently, Rohinton Minoo
Surty can be useful to defend against the contention that a foreign divorce
ends the matter (the point on res judicata ) but is not relevant to answering the
core foundational question of whether there was a marriage ceremony under
the PMDA for dissolution by way of a Parsi Matrimonial Suit to fall within this
Court’s jurisdiction.
Summary of Conclusions:
66. To summarise my findings:
A] By consent, the question of what the November 2010 Event
constituted was framed as a preliminary question of jurisdictional fact
and tried at the threshold on a video tendered by the Wife by the
predecessor Presiding Judges. Having invited that course and
participated in it, neither party may now complain of a “mini trial”;
B] Section 45 makes the CPC applicable to suits under the PMDA so
far as the same may be applicable. Whether the instrument is styled a
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“Plaint” or a “Petition” is immaterial, and the objection to the
maintainability of the Interim Application is rejected;
C] 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;
D] The delegates were asked one question of fact and nothing else.
Law and procedure have remained with the Presiding Judge, as Section
46 requires;
E] 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;
F] None of the five objections to that answer survives: etymology
would render the scheme of the jury for questions of fact redundant; the
distinction between “opinion” and “verdict” is misconceived – with the
aid of the jury’s answer on the question of fact, the mixed question of
fact and law are answered to indicate that the jurisdictional fact of a
Parsi marriage has not been established; the video cannot be impeached
by the party who tendered it; Section 17 addresses formal irregularity
and not the absence of the ceremony; and the second priest’s counter-
view came after the jury had spoken, on no wider material, and with no
application to reconvene it;
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G] 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;
H] The plea of res judicata can rest only on Section 13 of the CPC,
and by reason of how the foreign court dealt with the pendency of this
Suit, the contention of res judicata fails. The Family Court of Western
Australia expressly noticed this Parsi Matrimonial Suit, and formed no
view upon it, and left the Husband’s properties outside Australia
(alleged Indian properties) subject to the outcome in the Parsi
Matrimonial Suit. Therefore, there is no comprehensive and complete
overlap between the Australian judgements and what is covered by the
captioned proceedings;
I] It is unnecessary to compare the two jurisdictions on the basis of
the grounds of dissolution of marriage, or to consider whether a civil
marriage dissolved abroad leaves a communal marriage subsisting in
India, or whether two marriages between the same couple could be
contracted in sequence. Since it is found that no “Parsi Marriage” took
place at the November 2010 Event, that question is in any event moot.
Nothing more is decided. None of the Wife’s financial claims is
adjudicated; and no view is expressed upon what other avenue, if any,
that may remain open to her;
K] The finding upon the jurisdictional fact being dispositive, the
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Interim Application succeeds, and the rejection of the plea of res
judicata does not affect that outcome.
67. In the result, the Interim Application is allowed and the Suit is
dismissed because of the vital jurisdictional fact not having been found to be
in existence, posing a bar in law to proceed with trial.
68. In the peculiar facts of the case, and considering the nature of conduct
of the respective parties in the course of their divorce proceedings between
India and Australia, I am persuaded that costs need not follow the event.
69. All actions required to be taken pursuant to this order shall be taken
upon receipt of a downloaded copy as available on this Court’s website.
[SOMASEKHAR SUNDARESAN, J.]
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