Peer Review

India’s last jury trials

Under the Parsi Matrimonial and Disputes Act, juries elected by the community can grant divorces to estranged Parsi couples. Shikhant Sablania for the caravan
01 September, 2015

On the morning of 3 July, in courtroom 46 of the Bombay High Court, all eyes were on a female Parsi plaintiff in her early forties, seated in the witness box. The defendant, her Parsi husband, contesting a petition for divorce, was slumped on the back benches. “Would you be willing to go back to the marriage?” the defendant’s lawyer asked the aggrieved wife. “You have a choice of saying yes, no, or that you can’t answer at the moment. No reasons need to be given for this,” the judge instructed her. She leaned into a microphone: “No.”

Directly across from the witness, an all-Parsi jury of two men and three women looked on from behind two tables serving as a temporary jury box. The forewoman smiled, and shared her thoughts with her colleagues through a relay of whispers. Soon after, the defence lawyer delivered concluding remarks, with an allegation: the plaintiff’s testimony was false, and the divorce application a calculated means to secure alimony.

For the first ten days of July, this jury was a prominent and unusual fixture in the wood-panelled courtroom. Its five members heard 26 cases, all matrimonial disputes from within the Parsi community. Jury trials were common at criminal trials in sessions courts across the country, until the 1959 case of KM Nanavati vs State of Maharashtra. Nanavati, a naval officer, shot and killed his wife’s lover. Amid unprecedented media attention, a jury ruled that Nanavati was guilty of culpable homicide rather than the more grevious charge of premeditated murder. That decision was overturned by the Bombay High Court, and juries were abolished—with one exception.

The Parsi Matrimonial and Disputes Act, enacted in 1936, remained in force, giving Parsi juries the authority to grant divorces to estranged Parsi couples, although judges still decided on matters such as alimony and the custody of children. Where either party in a marriage is non-Parsi, cases are directed to the family courts that have power over all other communities. There are only a handful of Parsi marital courts left, in places such as Mumbai and Surat where the shrinking community still has sizeable populations. In Mumbai, in recent times the court has been convened twice or thrice a year, when sufficient cases pile up. The session I attended, though, was already the third this year, and a fourth was due in a few months to minimise the backlog.

Armaity Khushrushahi, a lawyer who has worked on Parsi matrimonial cases for nearly three decades, told me in her office that the Mumbai jury is elected by a representative community association, the Bombay Parsi Panchayat. “Only those cases where a divorce is contested are heard in the courtroom,” she explained. Unlike in standard divorce cases, she added, Parsi petitions are not subject to a mandatory six-month waiting period before getting to court, and estranged Parsi couples are not legally bound to seek marriage counselling.

The jury members told me that, given the relative affluence of the Parsi community, financial disputes are often at the heart of the cases they hear. They described one case that came up this session, involving an elderly couple, locked in a tussle over alimony, that has been coming to hearings for nine years. But not all matters are as difficult. The jury member Sam Patel, a retired police administrator, told me of “this one case years ago, when a young couple sought a divorce. We told them to reconsider, and while at it watch a movie together.” The next day, the two returned to say they would remain together. Patel has been on the jury for over a decade. He described the work as a service to the community, though jury members do receive nominal compensation.

At the start of each case, both sides may challenge the appointment of jury members they believe might favour the other party in the dispute. Considering the interconnectedness and size of the Parsi community—by the 2001 census, Parsis numbered just 69,000 across India—that provision is occasionally used. While the July jury consisted entirely of educated, retired professionals, each member need only be “an upstanding member of the community” elected by the Parsi panchayat. I was told that facing a jury of fellow Parsis bolsters couples’ hopes of a fair ruling. “Our jury is more perceptive of … the specific characteristics that we have,” a Parsi lawyer, who asked not to be named, told me as the case she was arguing adjourned for lunch. “Among the Parsis, you will often find cantankerous women and henpecked husbands.” She paused, then swiftly corrected course. “Not my client, though. She is a very simple woman.”

Omkar Khandekar is a journalist from Mumbai, and an alumnus of Cardiff University. His reporting from India, the Maldives and the United Kingdom has appeared in numerous publications, including The CaravanOpen and Scroll.