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“An arbitrary law cannot exist in India’s constitutional democracy.” This was the unanimous opinion of the Supreme Court’s constitution bench when it declared triple talaq to be illegal. As a lively democracy and a dynamic culture, India’s personal relationship norms and regulations must adapt


“An arbitrary law cannot exist in India’s constitutional democracy.”  This was the unanimous opinion of the Supreme Court’s constitution bench when it declared triple talaq to be illegal. As a lively democracy and a dynamic culture, India’s personal relationship norms and regulations must adapt to this dynamism. Each religion’s codified personal law contains subtle distinctions. Without a common civil code, the courts are inundated with petitions contesting the constitutionality of diverse parts of personal laws.


The British instituted the jury system in India. In 1665, the first recorded case of jury trial in India was Ascentia Dawes murder of a servant in Madras. Since then, the jury system has been under fire for alleged prejudice and the potential that the jury may be emotionally impacted and persuaded by public sentiment.  This acquired special prominence in the aftermath of the controversial K.M. Nanavati jury trial.[1] This was one of the final jury cases held in India.

In 1958, the 14th Report of Law Commission of India proposed that the jury system be abolished.  The process of eliminating jury systems from law began in the 1960s and was completed in 1973 with the introduction of the Code of Criminal Procedure.

Surprisingly, the jury system continues to find a place in the Parsi community’s written legislation. The Parsi Marriage and Divorce Act establishes two special courts to hear such cases: the Parsi Chief Matrimonial Court and the Parsi District Matrimonial Court.  If the marital cause of action is brought within the presidential towns of Bombay, Madras, or Calcutta, the state’s high court has jurisdiction.  Additionally, the act allows for help from five members of the Parsi community who will participate in the adjudication process.



“The abolition of the jury system was viewed positively in the history of the Indian judiciary because the jury was frequently unable to weigh the facts in light if proper legal complications and was susceptible to being swayed by popular and painted notions, and as a mature democracy, we stand for free and fair judgement.” According to the Irani petition, the jury is influenced by media coverage and popular opinion, which might jeopardise a fair trial. Another disadvantage is that the jury has a strong patriarchal attitude, despite the fact that majority if divorce litigants are women.


It was observed that the jury’s consensus is frequently skewed, and the jury is composed primary of those with little connection to the judicial system. The inclusion of jury members from the same community serves to preserve, making it more difficult for the parties to obtain a divorce. The petition alleged that the jury system is skewed in favour of men and limits women’s ability to get a divorce. Additionally, the delay in appointing delegates with the court convening twice a year to hear cases leads to the injustice being delayed, which results in justice being denied. Jury members may also lack the specialised skills necessary to work on the issues at hand, since they may have a tendency to blur the boundary between morality and legality.


In personal law disputes, the jury’s presence intrudes on the parties’ privacy.  While Article 21guarantees life and personal liberty, privacy is a legally protected right arising from other characteristics of freedom and dignity recognized and protected by part III of the Indian constitution.[2]According to the law commission, a jury hearing the spouses personal divorce case violates a basic right of privacy.

The system was said to violate Article 14 of the constitution, which guarantees equality, by preventing Parsi women from accessing traditional family courts and availing themselves of its advantages. This placed Parsi women on an equal footing with women of other religions, gender discrimination on the basis of religion. Personal laws are evaluated for legality against the standard of basic rights, and violations of the latter might declare the personal laws invalid.[3] As the petitioner in the Irani case asserted.


A number of flaws in the jury system have been pointed up. Nowadays, the most common reasons for divorce in the Parsi community are adultery and property issues. However, in light of the increasing divorce rate, the jury system has shown to woefully inadequate and outdated.

Divorce applications have been kept in a large backlog for several years due to the absence of a time restriction in the PMDA and the fact that jurors meet only a few times per year. In certain cases, the delay between the parties’ examination and cross-examination might go several years. The endless wait in adjudicating cases harms the persons involved, causing havoc on their emotional, personal, and financial well- being. Furthermore, because the case is being heard by a jury, whose understanding of the law is essentially less than that of bench, the arguments in Parsi divorce cases are generally more emotional and dramatic.

The Court said in the 2014 case of Rohinton Panthkay v. Armin Panthkay[4] that evidence gathering had been unduly delayed since 2012 owing to the absence of any jury session, as required by Parsi law. The court expressed its displeasure with the jury’s slow and asked the institution to make procedural modifications, stressing that such changes would not jeopardise the purity of the religion.


The Parsi community has levelled the most severe criticism. The jurisdiction of special courts to hear cases deprives community members of the advantage of mediation or conciliation that is available in ordinary family courts. The petition emphasises the need of having a unified civil code.


Additionally, the Act has no requirements for jury membership. As a result, the jury is heavily skewed by cultural standards and moral ideals, rather than by solid legal or judicial considerations.


The jury’s gender differences are evident as the female members are significantly less in the jury. Because of this, the Bombay High Court classified Parsi as an unjustifiable luxury.


“It was considered necessary to replace this procedure with a fairer and more unbiased award system, as the jury handles a case based on societal standards, moral principles, and ethics that may conflict with natural justice principles and the ethos of a dynamic society.



In 2017, a married Parsi lady, 33 years old and the mother of two children, filed a writ case in the Supreme Court challenging the jury system under the Parsi Marriage and Divorce Act. (hereinafter PMDA, 1936). In 2016, her spouse petitioned the Bombay High Court (chief matrimonial court) for the dissolution of their 11-year marriage.  Due to the court’s failure to assign jurors, the matter remained pending.


  • After a year and a half of waiting for a decision, the petitioner filed a constitutional challenge against Sections 18-19, 20, 24, 30, 46, and 50 of the PMDA (controlling jury jurisdiction, composition, and nomination) at the highest court.
  • According to the petition, it also violates people’s privacy. There should be no jury trials in divorce cases, and the Parsi community should have access to accelerated justice in Hindu Family Courts. Delegates are public leaders who serve ten-year terms in the Parsi community. Under the five-delegate system, unjustified societal interference in an individual’s personal affairs occurs, with the judge deciding whether or not to issue a divorce. As a result, it cannot be kept for a single town, as it predates the elimination of our jury system in the 1960s.”

The centre opted to maintain the jury system under the PMDA, 1936, claiming it as a protector of Parsi age-old culture. This decision obviously contradicts the Parsi community’s capacity to benefit from the benefits of family courts enjoyed by other communities. According to reports, the government’s judgement in the Naomi case conflicts with the ruling in the triple talaq case.

According to proponents, the jury is beneficial because it allows for the influence of emotion on the verdict, something the judge does not allow. According to Randall M. Kessler, a family law attorney and founding partner of Kessler, Schwarz & Solomiany in Atlanta, “the jury trial is a fundamental entitlement for all litigants, as it helps provide fairness and the possibility for community assistance when spouses are unable to do so on their own.”[5]

On the contrary, Stephen A. Land, an Atlanta attorney and former assistant district attorney for Fulton County, criticised the jury system as time-consuming and costly.[6] As is the case in Georgian courts, the Parsi jury system is not involved in asset distribution or alimony determination. As a result, as a minority community, the Parsi community is opposed to the community’s demand for divorce. The system’s male-dominated jury composition makes it more difficult for women seeking a divorce from their husbands.


Minority community members must be guaranteed the right to a fair trial. According to the Law Commission of India’s Consultation Paper, “in the absence of agreement on a uniform civil code, the Commission determined that the best course of action may be to preserve the diversity of personal laws while ensuring that personal laws do not conflict with the fundamental rights guaranteed by the Indian Constitution.” To accomplish this, all personal laws pertaining to family affairs must first be codified to the maximum degree feasible, and any inequities that have crept into codified law must be rectified via amendment.”[7] Thus, amending the Act will pave the way for the abolition of the jury system in matrimonial cases.


The removal of the jury might result in a more procedural way that protects the rights of the parties from being heard by persons who lack legal competence and give decision based on personal bias and societal morality. But there is no provision to remove members from the jury.

Due to its scarcity, it also requires a distinct mechanism of protection. In law, a special law (such as the PMDA Act) for that small community with an intelligibly different or unique structure is permissible”.[8] However, the jury system, which violates the right to equality and the right to privacy, was sought to be eliminated to keep all communities on an equal footing to obtain speedy and natural justice. Additionally, unlike the jury systems in Georgia and Texas, which let parties choose a jury trial at their choice, the Parsi jury system requires parties to have a jury in divorce proceedings.


The issues involving the Uniform Civil Code, the unconstitutionality of Triple Talaq, and the Sabarimala judgement all provoked heated arguments and were all positive strides forward. In light of these occurrences, the current debates on the PMDA provide a glimmer of hope for thousands of Parsi women. Their problem has long been ignored or left unresolved. While Parsis have long been considered as a model community in many fields, Mrs Irani’s petition exposed the proverbial chinks in the armour.

Mrs Irani’s plea, sixty years after the Nanavati jury trial, demonstrates the pervasiveness of this archaic colonial legacy. Given the broad latitude granted to jury members and the absence of guidelines for resolving disagreements, it is apparent that allowing such a system to exist is not in the best interests of the law.

In an era when women’s rights have finally begun to gain prominence in legal discourse, the Parsi jury system acts as a roadblock to swift and effective justice. The jury system has several problems, as previously stated, but in light of the Supreme Court’s recent pro-woman and pro-equality rulings, it remains to be seen and hoped that the system ends on a winning note.


In the struggle for a Uniform Civil Code covering all personal laws, clinging to the century’s old jury system becomes an impediment to enacting vital societal reform. The existing Parsi marriage and divorce laws, 1936, requires changes in accordance with the country’s constitution. Privacy, which is critical at the moment, cannot be ignored.  The community must also be provided with the right to a fair trial under the right to life.  The jury system, which was long since abolished in the country, reappears.

There is no place for it in the process of settling divorce cases. Personal law does not require a jury system since juries become effective in situations involving alleged offences against the state. Consistent interpretation of the petitioner’s complaint against the jury system and constitutional provisions demonstrates that the Parsi divorce legislation requires amendment.

India’s exclusive jury trial system poses a danger to the country’s just and proper legal system. Thus, if equality is necessary for all religious communities in the country, eliminating the jury system under the Parsi Matrimonial Act will help secure the minority community’s access to swift justice and the protection of their fundamental rights.

Author(s) Name: G Sai Sangamitra (Damodaram Sanjivayya National Law University, Vishakapatnam)


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

[2] Justice K.S Puttaswamy (Retd.) and Anr. v Union of India (2015) 8 SCC 735

[3] Anil Kumar Mahsi v Union of India (1994) 5 SCC 704

[4] Parsi Suit No. 20 [2013] decided on April 3 2014

[5] Archit Chakraborty and Ananya Sharma, ‘The culmination of jury trial: a closer look’ (2009) <> accessed on 27 August 2021

[6] Peralte C. Paul, ‘A jury in a Divorce Case?’ Yes, in Georgia, Kessler & Solomiany LLC News <> accessed on 27 August 2021

[7] Law Commission of India, Consultation Paper on Reform on Family Law (2018)

[8] Homiar Nariman Vaki, ‘Why Parsis need their distinct family laws’ The times of India (20 Sep 2017 08:14 IST)