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MITRA SHARAFI
CHAPTER 18
Law and Modern Zoroastrians
Mitra Sharafi
Reinventing Zoroastrian Law
In the modern period, the most extensive and well-documented body of law pertaining to
Zoroastrians is the Parsi personal law of India. The term personal law describes the bodies
of religiously specific law that are applied by state courts to inheritance and marital
disputes among Hindu, Muslim, Christian, Zoroastrian, and other communities in South
Asia. Zoroastrian personal law was the creation of elite Bombay Parsis living in British
India during the last century of colonial rule. It bears little resemblance to the legal traditions described in the preceding
first half of this chapter. It also distinguished itself from English
law and from Zoroastrian custom in Persia and Gujarat. Since independence in 1947,
Zoroastrian law in India and Pakistan has con~ued in the colonial mold, building upon
legislation and case law developed under the Raj. This examination focuses upon the
three areas of law that maintain a distinctly Zoroastrian flavor in modern India: 1) inheritance; 2) marriage; and 3) religious trusts. Inheritance and marriage form the core of
Parsi personal law. The law of religious trusts sits outside of the personal law, falling
within the general field of Indian trust law. However, religious trusts have been the site of
major controversies among Zoroastrians, particularly over conversion and the control of
religious properties. The chapter ends with a survey of modern Zoroastrians and law
outside of India, particularly in Pakistan, Iran, the ill(, the USA, Canada, and Australia.
Inheritance
During the early colonial period, a steady flow of Zoroastrian inheritance disputes
landed in court in India (Manil<baee 1854; Rustomjee 1855; Cowasjee 1855; Dhunjeesha
1856) (Furdoonjee in 1862-1863 Government of IndiaBill: 11-12; Rana 1934: 156).
The Wiley Blackwell Companion to Zoroastrianism, First Edition. Edited by Michael Stausberg
and Yuhan Sohrab-Dinshaw Vevaina.
© 2015 John Wiley & Sons, Ltd. Published 2015 by John Wiley &Sons, Ltd.
(Names in italics refer to cases listed at the end of this chapter.) The most famous was
a case in which a Parsi son won all of his deceased father's land by taking advantage
of the application of English law to Zoroastrians (Report in 1862-1863 Government
of India Bill: 2; Agnes 2001: 130). According to the English principle of primogeniture, the eldest son inherited all of his father's real estate to the exclusion of other
sons. Primogeniture did not reflect Parsi customary practice, according to which real
estate was divided equally among sons. Community protest led to the Succession to
Parsees Immovable Property Act of 18 3 7, also known as the Parsee Chattels Real
Act. This Act exempted Zoroastrians from primogeniture, albeit by the circuitous
route of declaring Zoroastrian real estate to be treated like chattels under inheritance
law (Parsee Chattels Real Act, s.I in Karaka 2002 II: 2 9 7). Following the English
Statute of Distributions (also known as the Act for the Better Settling of Intestates
Estates 1670-1671, s.III; Lely 1892: 244), a widow received one third of an intestate's chattels while his children took the rest. Neither this scheme nor the one it
replaced reflected Parsi custom, according to which widows and unmarried daughters received maintenance at very least, and a one eighth share each of the estate, at
most (Report in 1862-1863 Government of India Bill: 3). Further community organizing led to the creation of the Parsi Law Association, a body that drafted and lobbied
for the passage of the two founding statutes of Zoroastrian personal law: the Parsi
Marriage and Divorce Act (PMDA) and the Parsi Intestate Succession Act (PISA), both
of 1865 (PMDA 1865 and PISA 1865 in Rana 1902, 1934; Irani 1967: 287-288,
295). Together, these Acts created a wholly new regime of substantive personal law
for Zoroastrians.
Inheritance law operated along two separate tracks. Where a valid will existed, the
law of testamentary disposition (i.e., the law of wills) applied. All other situations were
governed by the law of intestacy, a body of default rules for the distribution of property
when a person died intestate (i.e., without a valid will). The Parsi Acts on inheritance
created a special intestacy regime for Zoroastrians. The PISA of 1865 was intended to
create an inheritance scheme that was truer to Parsi custom than had been the 18 3 7
Act. However, the eventual principle enshrined in the 18 6 5 Act was not a reflection of
Zoroastrian practice in the mofussil or provinces, understood in this context to mean
Gujarat. The draftsmen and lobbyists for the Act were elite Bombay Parsis. They created
an inheritance scheme that sat partway between English law and mofussil tradition.
Contrary to the most conservative depictions of mofussil custom, women would inherit
something (Report in 1862-1863 Government of India Bill: 7). However, a widow
received only a half share and a daughter, a quarter share, for every full share inherited
by a son (PISA 1865, s.l in Rana 1902: 5; see also Rana 1934: 130-136). The PISA
1865 was absorbed into the Indian Succession Act of 1925, and then revised in the
Indian Succession (Amendment) Act of 19 3 9. The 19 3 9 Act decreased the entitlement
of widowers in relation to their children, and increased widows' portion to a full share
(like sons), with daughters receiving a half share (IS(A) Act 1939, ss.51-52 in IS(A)
.Act 1939 Papers). Controversially, it also gave parents a share in inheritance (IS(A) Act
1939, s.51(2) in IS(A) Act 1939 Papers; Opinions 1938-1939: 13-14). Colonialintestacy suits arose most commonly over the entitlement of widows (Davur 18 7 7; Narielwala
1910; Pestonji 1929) and widowers (Surti 1887; Motiwalla 1906).
LAW AND MODERN ZOROASTRIANS
301
Under the law o f testamentary disp osition, Parsi testators could b equeath their
estate to anyone by will, and could disinherit family membe rs (Rana 1 9 3 4: 1 5 6;
Erachshaw 1 8 80) . The validity of Parsi wills was at times c hallenged on the basis of
mental incompetence and undue influenc e (Jehangirj i 1 9 09 ; Kathoke 1 9 1 2 ) . Zoroastrian
inheritance suits also targeted executors . Plaintiffs demanded greater transpar ency and
accountability (Divecha 1 9 03 ) , questioning executors' competence (Ginwala 1 9 1 3 ) and
accusing them of misman agement (Marker 1 9 0 8 ; Kathoke 1 9 1 2 ) . Testator s often set
aside part of their estate for Zoroastrian religiou s purpose s, usually to fund ceremonies
or to support underprivileged co-religionists. Suits disputing the validity of such chari­
table bequest s were typically filed by family members who stood to inherit the portion
intende d for charity (Banaji 1 8 8 7) . The senior appointment of an orthodox Zoroastrian
judge led to the increase d validation of such charitable bequests. Bombay High Court
judge Dinshah D. Davar Ga.gos 1 9 1 2 ; Sharafi 20 1 4) preserved trusts that funded
annual muktad death commemoration ceremonies and that continued in perpetuity
(Taracha nd 1 9 09 , reversin g Banaji 1 8 8 7) . He also saved at-risk bequests (Soonawalla
1 9 0 7; Warden 1 908).
Since independence, the Indian Suc cession (Amendment) Act 1 9 9 1 has abolished
the distinction between legitimate and illegitimate children and equalize d the entitle­
ments of male and female heirs (Agnes 2 00 9 ) . The spouse and each child of a Parsi
intestat e now inherit equal shares, while parents receive a half share each (IS(A) Act
1 9 9 1 , s. 3 , adding new s. 5 1 ) . Mumbai real estate has been at the heart of recent case
law ( Gupta 2 00 3 ; Gagrat 2 009 ) , and courts have validat ed trusts designe d to protect
minors' entitlements (Jehangir 2 00 7 ) .
Ma rriage
Before 1 8 6 5 , most Zoroastrian matrimonial suits were settled within the community by
local Parsi panchayats ( also punchayets, councils of commu:p.ity heads) (Irani 1 9 6 7: 2 7 62 7 7) or by an authority like the Modi of Surat, who was regarded as the leader of the
Surat Par sis (Minute in 1 8 62-1 8 6 3 Government of India Bill: 9-5 0 ; Wadia and Katpitia
1 9 3 9 : iii) . Occasionally; a suit arrived in the colonial courts for resolution. The most
important of these was Cursetjee (1 8 5 6 ) , a case that was appealed to the apex court in
the British Empire, the Judicial Committe,e of the Privy Council in London. In that case,
the court decl ared that it lacked jurisdiction over Zoroastrian marriages. Some Parsis
were accused of profiting from the legal vac1.1um by taldng second spouses during the
lifetime of tbeir first (List in 1 8 62-1 8 63 Government of India Bill: 1-3 ) . In response, the
Parsi Law Association drafted the :Parsi Marriage and Divorce Act (PMDA) of 1 8 6 5 . The
PMDA made bigamy a criminal offense. It also applied a notably light touch to child
marriage, tolerating the practice against the wishes of colonial officials (PMDA 1 8 6 5 ,
s. 3 7 in Rana 1 9 34: 9 0-9 3 ; Report in 1 8 62-1 8 6 3 Government of India Bill: 1 3-14) .
The Act created the Parsi matrimonial courts, _a network of quasi-community courts.
The matrimonial courts were overseen by a judge (often Parsi) from the colonial legal
system. They operated with what was effectively a Parsi jury - a group of elite Zoroastrian
"delegates " who pre- 1 9 4 7 were almost entirely male. This system made Zoroastrians
3 02
MITRA SHARAFI
the only South Asian community entitled to a jury of co-religionists in marital cases.
Four causes of action came to the court: annulment, the restitution of conjugal rights,
judicial separation, and divorce. Only wives could sue for judicial separation, which
entailed living separ ately and being supported by their husbands without the right to
remarry. Demographic patterns in the early Parsi Chief Matrimonial Court (PCMC) in
Bombay were strilcing: there were two or three female plaintiffs for every male one. A
surprising proportion of parties were working class. This pattern differed significant]y
from the demographic trends in the main colonial civil legal system, where many parties
were affluent, particularly in inheritance- and trust-related suits. Colonial PCMC plain­
tiffs usually won their suits. Because so many plaintiffs were non-elite women, the colo­
nial PCMC essentially functioned as a court for poor wives (Sharafi 2 0 14: 1 9 3-2 3 6) .
In 1 9 3 6 , a revised PMDA made significant changes to Zoroastrian marriage law (Irani
1 9 6 7: 2 8 8-294) . The most important among these was the equalization of grounds for
divorce between husbands and wives. Under the earlier Act, a husband had to prove one
thing: that his wife h ad committed adultery (PMDA 1 8 6 5 , s. 30 in Rana 1 9 3 4 : 45). A
wife, by contrast, had to prove that her husband had committed cruelty plus adultery or
fornication, adultery plus bigamy or desertion, the rape of another woman, or an unnat­
ural offense, defined by the Indian Penal Code as "carnal intercourse against the order of
nature with any man, woman or animal" (PMDA 1 8 6 5 , s. 3 0 in Rana 1 9 34: 45-5 6;
Indian Penal Code [IPC] 18 60, s. 3 7 7 in Ranchhoddas and Thakore 1 9 2 6: 322-3 2 3 ) . The
1 9 3 6 Act also added new grounds for divorce, including non-consummation within one
year, mental unsoundness from the time of marriage, premarital pregnancy (of the wife)
by a third party, the communication of venereal disease, forced prostitution ( of the wife by
the husband), desertion or judicial separation for three years, failure to comp]y with an
order of restitution of conjugal rights for a year, and the spouse's ceasing "to be a Parsi"
(PMDA 1 9 3 6, s. 3 2 in Wadia and Katpitia 19 3 9: 6 6-69). Parsi critics argued that the Act
(particularly its desertion provisions) moved Zoroastrian marriage toward no-fault
divorce. They claimed that Zoroastrian marriage was supposed to be a sacrament,· not an
ordinary contract that could be terminated at will (Opinions in PMDA Papers 1 9 3 6: I: 3 ,
3 2 ; N: 74) . The new Act abolished the prostitution exception: under the 1 8 6 5 statute,
husbands' relations with prostitutes had not constituted adultery as a ground for divorce
(Mansukh 1 8 8 8 : 72-9 ; PMDA 1 8 6 5 , s.30 in Rana 1 9 34: 45 , 50; PMDA 1 9 3 6 , s.32 in
Wadia and Katpitia 1 9 3 9 : 6 7; Sharafi 2 0 14: 1 73-1 78). It also made "grievous hurt" a
ground for divorce, but defined the required harm so narrowly that husbands could inflict
certain types of injury-including a criminal offense - withQut creating grounds for divorce
(PMDA 1 9 3 6, s.2 (4) in Wadia and Katpitia 1 9 3 9 : 1 1 , 1 3 ; Sharafi 2014: 1 8 7-1 9 1 ) . For
instance, putting one's wife in "severe bodily pain" through injury for at least twenty days
or permanently impairing any of her members or joints constituted "grievous hurt"
under the Indian Penal Code (IPC 1 8 60, s.3 2 0 in Ranchhoddas and Thakore 1 9 2 6: 2 8 3 ) .
Neither provided grounds for divorce under the PMDA 1 9 3 6.
In 1 940, a short amending statute enabled courts to vary a divorced woman's
permanent alimony if she had remarried or had "not remained chaste" since the divorce
(PMD(A)A 1 940, s.2). The Parsi Marriage and Divorce (Amendment) Act 1 940 fol­
lowed upon the controversial Vachha case in which a divorced woman's alimony was
not clearly ca:ncelled by her remarriage (Manekbai 1 9 3 6 ; Vachha 1 9 3 7) . The woman's
LAW AND MODERN ZOROASTRIANS
303
ry and cruelty
secon d husband earned less than her first, and the first husb and's adulte
e was enacted in
had triggered the divorce. A harsh er versio n of the Bombay statut
n had remarried
Aden. It made the cancellation of alimony mandatory where a woma
ce Ordinance 1 9 3 8 ).
or been sexually active since her divorc e (Parsi Marriage and Divor
sub-c ommunity
Since 1 94 7, two impor tant matrimonial cases have featured Iranis , a
centuries. Rever sing
of Zoroa strian s, who arrived in India from the 1 8th to the 2 0th
apply equally to Iranis
Yezdiar ( 1 9 5 0 ) , J. A. Irani (1 9 6 6) established that the Parsi Acts
sis. It provided a
( and Zoroa strian Iranian citizen s) , altho ugh frame d explicitly for Par
D. M. Petit ( 1 909) had
historical and ethnographic account of the Irani community, as
PMDA revolutionized
don e earlier for the Parsi s. In 1 9 8 8 , an amended version of the
9 8 8 . s.3 2 b in Shabbir
Zoroastrian law by allowing divorc e by mutual consent (PMDA 1
law has focus ed on
and Manc hand a 1 9 9 1 : 1 3.8-1 3 9 ) . 'rhe post-1 9 8 8 repor ted case
no-fault divorce
child custo dy, a common phen omenon in jurisdictions permitting
(Kalyanvala 1 9 73 ; Dolikuka 1 9 84) .
Religious Trusts
trusts , the legal device
Some of the most acrimoniou s Zoroastrian litigation has involved
s in these cases have
that governs religious funds and properties. The lawyers and judge
m's inter pretation
often been Parsis themselve s, enabling them to shape the legal syste
M. Petit 1 90 9 ; Coyaj ee
of Zoroa strian history and theology (Davar in Tarach and 1 90 9 . D.
d upon the conversion
in Yezdia r 1 9 5 0 ; Vachha in J. A. Irani 1 9 6 6) . These suits turne
disputes over goverdebates, power struggles for religi ous authority and control, and
nance and taxati on.
0th century. In Petit and
The two leading cases on conversion occurred in the early 2
were accused of being
others v Jijibhai and others , trustees of the Bomb ay Parsi Punchayet
pted conversion to
improperly appointed following their oppos ition to the attem
200 7) . Suzanne Briere
Zoroastrianism of a French woman (D. M. Petit 1 9 09 ; Sharafi
ony, having allegedly
married Ratanji Dadabhai Tata in a Zoroa strian wedding cerem
e. Against the plaintiffs
undergone her initiation into the religion (navjo te) shortly befor
understood to mean
(led by Mr Tata) , the trustee-defendants claimed that juddins (here
t from Parsi trust funds
ethnic outsi ders) were ineligible for initiation and could not benefi
y the truste es' appoint­
and properties. After enabling an altern ative procedure to rectif
or non-binding upon
ment, the judges discu ssed conversion (technically obiter dicta,
6 5-2 7 1 ; Sharafi 2 00 7:
future cases ) (Stausberg 2 002c : 5 6-5 7; Gae and Kanga 200 5 : 2
" of two judge s, namely
1 7 6, fn. 2 ) . Unusually, the case was decided by a " special bench
a blind British judge
the senior judge Dinshah Dhanjibhai Davar, who was Parsi , and
conversion for the first
named Franlc Clement Offley Beaman. Both judges favor ed limited
200 7 : 1 64-1 70) . Both
half of the proceeding s. Later, they changed their views (Sharafi
ted juddin converts to their
ultimately asserted that the Parsi community had not accep
scriptural endorsements of
religion since migrating to India, and that custom trumped
they would become
c�nvers ion. Davar stressed that even if juddins could convert,
this basis , juddins like the
Zoroa strian s (a religi ous label) , not Parsis (an ethnic one) . On
ed for "Parsis."
French Mrs Tata were excluded from the benefit of trusts creat
3 04
MITRA SHARAFI
The sequel to Petit v. Jijibhai was Sal<lat and others v. Bella, a case that arose among the
tiny Parsi population of Rangoon in Burma (Sharafi 2 006, 2014: 2 8 5-2 89). Bella
Captain was allegedly an orphan girl whose birth mother was possibly Parsi and whose
father was Goan Christian. Bella was adopted by a Parsi couple. She was raised as a
Zoroastrian, had her navjote performed, and entered the Rangoon fire-temple. Orthodox
trustees of the Rangoon Zoroastrian trust, led by her adoptive uncle, went to court to get
an injunction prohibiting Bella's entry. On the basis of Petit v. Jijibhai, they argued that
Bella could be kept out: The trusts were for the benefit of Parsis, not Zoroastrians. Ironically.
it is most likely that Bella's natural father actually was Parsi. Oral history sources and the
circumstances surrounding her birth suggest that Bella was not a random orphan, but
the extramarital child of her adoptive father's younger brother. This aspect of the case was
never officially aclmowledged. The technical legal question was whether the trustees were
obliged to allow Bella into the temple. The case began at the Chief Court of Lower Burma,
involved a commission that collected evidence in Bombay, and was appealed to the Privy
Council. In London, the judges ruled that Bella was not entitled by right to enter the
temple. However, if the trustees felt that her entry would not cause harm to others, they
had the discretionary power to let her in. At the start of the litigation, the sole trustee was
the man who was probably Bella's natural father, and who favored her entry. By the final
resolution of the case, the composition of trustees had changed. Orthodox Parsis who
opposed Bella's entry then dominated. They prohibited her entry on the basis of the Privy
Council ruling. Although Petit v. Jijibhai is the best 1mown case on juddin admission, Bella's
case was the more extensive judicial investigation of the question "Who is a Parsi?" That
said, the Privy Council judges in Bella's case relied heavily upon Davar's Petit v. Jijibhai
judgment. Their ruling contributed to the fact that, even a century later, Davar's judg­
ment remains the leading judicial statement on - and against - juddin admission.
The second important vein of trust cases reflects power struggles over religious
authority between priestly and lay Zoroastrians (see Staus berg and Karanjia, "Rituals, "
this volume) . Two major cases occurred in the colonial period. The first arose between
trustees and priests at the most sacred Zoroastrian fire-temple in India, the Iransah Atas
Bahram in Udwada, Gujarat (N. M. Wadia 1 9 04) (see Choksy, "Religious Sites and
Physical Structures, " this volume) . Trustees began closing and locking an internal door
at particular times , claiming they were doing so for security reasons. Temple priests
objected: The closure obstructed their ritual duties and worshipers' movement. In the
second case, every adult male Parsi in Secunderabad was a party to the suit, itself
appealed to the Privy Council (Jeevanji 1 9 0 8 ) . The descendants of the founders of the
only Tower of Silence (NP dakhme, PGuj . dokhme) wanted to block construction of a
second tower near the first. The priests and community wanted the new construction.
The question in both the Udwada and Secunderabad cases was the same: Which faction
was the rightful controller of religious properties? Priests were generally underprivi­
leged, being employed by and typically answerable to the wealthy lay Parsis who created
and managed religious trusts . In the Secunderabad case, the priests lost. In the Udwada
case, the court found in favor of the priests, who were backed by the larger community.
Since the 1 9 3 bs, power struggles over religious trusts have shifted away from
priestly-lay struggles. Legal attention has focused upon accountability and democratic
principles in trust governance, particularly in the Bombay Parsi Punchayet (BPP) .
LAW AND MODERN ZOROASTRIANS
305
In 1 9 3 6, the Bombay Presidency legislature passed the Parsi Public Trusts Registration
Act. By requiring registration, publication, and inspection of audited accounts, the Act
aimed to make Parsi trustee s more accountable and their purposes better known (PPTR
Act Papers 1 9 3 6) . In 2 00 7, a iawsuit challenged tµe undemocratic basis of the system
for electing BPP trustees. Until then, BPP trustees had been elected by a limited body of
Parsi voters (many of whom were donors) and through an indirect voting scheme. The
court required that a system of universal adult suffrage and direct election be intro­
duced (Mistree 2 008).
Since independence, most trust-:-based litigation has been against the state. There was
a thriving tradition of Zoroastrian suits against the colonial state, especially regarding
licensing (Banaji 1 8 82 ; R. J. Irani 1 9 02 ; Ginwalla 1 9 23) and eminent domain (Trustees
1 9 0 9 ; Municipal Commissioner 1 9 1 2 ; R E Petit 1 9 1 5). Since the 1 9 2 0s, tax suits have
dominated Zoroastrian trust litigation. With a few exceptions (Trustees 2 002), the
courts have sided with Zoroastrian trusts, minimizing the tax payable by them
(Commissioner of Income Tax 1 9 4 8 ; Commissioner of v\lealth Tax 1 9 6 5 ; Official Trus tee
1 9 6 9 ; Gamadia 1 9 8 6; Trustees 1 9 9 6 ; Assistant Director 1 9 9 8) . They have also sided
with trustees who have challenged decisions of the charity commission, a government
body that regulates charitable trusts in India (M. H. Irani 2 00 1).
Intra-community controversies have also been litigated in the post-colonial period.
In recent years, debate over the exclusivity of Zoroastrian housing colonies (Zoroastrian
Co-operative Rousing Society 2 005; Bharucha 2009) has triggered lawsuits, as have
power struggles between groups of trustees (Cooper 200 8 ) . Dismissing a ban by the
Parsi Punchayet against two priests who accepted cremation, intermarriage, and the
initiation of the children of mixed couples, the Bombay IDgh Court has ruled that
Punchayet trustees may not prevent ordained Zoroastrian priests from performing
religious ceremonies (Kanga· 2 0 1 1) . Many Parsis expect constitutional litigation to
intensify over intermarriage and patrilinearity (Gpndhi 2009). The debate over patrilin­
earity pits gender equality provisions of the Indian constitution (Arts . 1 4-1 5 , S IA)
against religious communities' freedom to manage their own affairs (Art.2 6b) .
Reformists emphasize the gender inequality of the rule whereby children of intermar­
ried couples may be initiated only if their fathers are Zoroastrian (D. M. Peti t 1 9 09 :
5 3 6). Orthodox Parsis counter that membership in the Zoroastrian community has
always been patrilineal. There is also controversy over the ruling that a Parsi woman
(unlike a Parsi man) who marries a non-Parsi under the, Special Marriage Act may be
barred from entering fire-temples (Gupta 2 0 1 2).
Beyond India
Most statutes enacted for Parsis in colonial India were retained in independent Pakistan.
Property relations and taxation disputes have produced the most litigation involving
Pakistani Parsis. Parsi tenants have sued their landlords in order to prevent rent
increases, losing against the Karachi city government (Avar.i 1 9 63) but winning against
private landlords (Mehta 1 9 63). Parsis in Pakistan have alsO' sued to preserve the
character of residential areas, successfully preventin g the construction of a school
306
MITRA SHARAFI
(Cowasjee v. Nawab 1 9 9 3 ) and high-rise (Cowasjee v. Multiline 1 9 9 3 ) . The largest body of
Parsi case law relates to taxation. Parsi plaintiffs have challenged the taxation of
Zoroastrian trusts (Dubash 1 9 6 0 ; Trustees of Mount Nepean Trust 1 9 8 7) , inheritance
(Kandawala 1 9 6 7) , and corporations (Maneckji 1 9 79 ; Julian 1 9 8 1 ; Cowasjee 1 9 8 5 ) . The
state has won in most of these cases. Parsi plaintiffs have been more successful in con­
stitutional suits against the state. In one case, the plaintiffs won the right to increased
compensation following the state's taking of their shares (Kandawala 1 9 8 9 ) . In another,
the court ruled that Parsis were entitled to produce, sell, and possess alcohol for reli­
gious, medicinal, scientific, industrial, "or similar other purpose" (Pakistan 1 9 8 8) .
In Iran , the personal law principle theoretically applies to Zoroastrians. Under Islamic
law, non-Muslim minorities deemed 'People of the Book' (Arab. dhimmfs, NP ahl-e ketii.b)
are entitled to follow their own laws and religious practices, particularly in the areas of
marriage and inheritance (An-Na'im 1 9 8 7: 1 1-1 3 ; Tsadik 2007: 24-2 5 ) . The Iranian
Constitution (Art. 1 3) declares that "within the limits of the law, " Zoroastrians shall be
"free to carry out their religious rites and practice their religion in personal status and
religious education" (Samimi Kia 1 9 9 5 : 14) (see Stausberg, "Zoroastrians in Modern
Iran, " this volume) . Iranian lawpermits recognized religious rninorities (i.e. , Zoroastrians,
Jews, and Christians) to consume alcohol, for instance, and to resolve intra-community
disputes through their own semi-autonomous religious authorities (Sanasarian 2 000:
74-7 5, 9 1) . However, legal disabilities also apply. In criminal law, the compensation
due for causing the death of a person (Arab. di.ya, NP diye or dI'e 'blood money') was his­
torically half the sum due for a Muslim when the victim was Zoroastrian, Jewish, or
Christian (Sanasarian 2 000: 1 3 3 ; Afshari 2 00 1 : 1 3 4) . Despite the abolition of differential
blood money rates in 2 003 (Sanasarian and Davidi 2 00 7: 63-6 5 ) , Zoroastrians claim
that the old rule is still applied (Tait 2006). For centuries, Iranian inheritance law has
encouraged conversion to Islam by dhimmfs: such converts inherit their fathers' entire
estates, to the exclusion of other family members (Amighi 1 9 90: 8 7; Sanasarian 2000:
1 3 1 ; Chok:sy 2 00 6b: 1 64-1 6 5 ; Tait 200 6). The poll tax levied on recognized minorities
(Arab. di.izya, NP jeziye) was lifted for Zoroastrians in 1 8 8 2 through Parsi-led trans­
imperial lobbying (Karalrn 2002 I: 6 1-8 2 ; Stausberg 2002c: 1 54-64; Choksy 2009b:
1 4 3-144; Ringer 2009 ; Zia-Ebrahimi 2 0 1 0) .
Parsis living in countries like the UK, the USA, Canada, and Australia have been
involved ·in litigation, particularly regarding immigration and religious buildings. As
British subjects and commonwealth citizens, Parsis could settle freely in Britain until
1 9 62 (Hansen 1 9 9 9 ; Hinnells 2 0 0 5 : 42 2 ) . It was harder to become an American
citizen. In the first half of the 20th century, New York courts held that Parsis were
ineligible to become citizens. Parsis were not "white persons" according to "common
sense, " despite being "probably the purest Aryan type" according to ethnologists of the
period (Balsara 1 9 0 9 ; R. D. Wadia 1 9 3 9 ) . More recently, Parsis have tried unsuccessfully
to claim asylum in the USA on the grounds of religious persecution in South Asia. One
Pakistani Parsi claimed asylum on the basis that he would be denied the right to hold a
government job or political office in Pakistan because of his religion. The court rejected
his application: Employment-based discrimination was insufficient to constitute perse­
cution for asylum.:.related purposes under American law (Minwalla 1 9 8 3) . Other
Parsis have claimed that they would be persecuted by Hindu extremist organizations
LAW AND MODERN ZOROASTRIANS
307
like the ShiV" Sena if they returned to India. The courts found the petitioners' fe ar of
persecution unfounded, ruling that Zoroastrians are not generally persecuted on reli­
redacted at
gious grounds in India ( party's request Colabewala 200 6) .
Asylum cases have also been foun ded upon claims of convers ion to Zoroastrianism.
In particular, asylum-seekers of Muslim background from Iran have claimed to be
converts to Zoroastrianism . They have asserted that their lives are at risk in Iran, where
conversion from Islam to another religion is punishable by death. This argument has
been made unsuccessfully in Australi a (Ferhadieh 2001 ; Saa dat 2 0 0 1 ; WADW 2 002)
and in the UK (Gheisari 2004) . Canadi an courts have shown greater willingness to
(Razm
grant asylum on the basis of religion to Iranians who convert to Zoroas!rlanism
erican
t
1 9 9 9 ) . Many Iranians born into Zoroastrian families have migrated o Euro-Am
9 8) and w�th
jurisdictions by success fully claiming asylum (for example, see Eftekhari 1 9
the support of Parsi and Zoroastrian organizations (Choksy 2 00 6b: 1 7 6-1 7 7).
have also Outside of India, disputes over the management of religious properties
5 : 2 3 4, 2 7 5produced litigation. Zoroastrians from Pakistan and Zanzibar (IDnnells 2 00
struggles
2 79 ) to New York (Rusto m Guiv Founda tion 1 9 9 0) have resolved internal power
o and Virginia,
by going to court. There have also been external disput es. In Ontari
gs in residen­
Zoroastrian organizations have won the right to establish religious buildin
h 2004) .
tial zones where Christian churches were permitted (Winto n 1 9 7 8 ; Kebai.s
bequests often
Transnational cases have also arisen . Zor oastrian testamentary
, but matri­
009)
cross national boundaries (Framroz 1 9 6 9 ; Batliwalla 1 9 9 9 ; Gagrat 2
ing. Forum­
monial suits are the most comm on sites for international fo�-shopp
sing an optimal
shopping is the attempt to move o ne's suit into a jurisdiction promi
colonial period,
the
result where there is ambiguity over the controlling jurisdiction. In
princely state of
suits arose pitting the law of British India against that of England, the
gic relocatipns
Barod a, and Persia (E. Wadia 1 9 14; Sh arafi 2 0 1 0 ) . The pru;ties' strate
recently, courts
generally failed, except when fleeing a jurisdiction permanently. More
. Irani 1 9 64) , and
facing jurisdictional contests between India and Paldstan (E H
in favor of their own
between India and New Hampshir e (Vazifda r 1 9 8 8) have found
jurisdiction, against India.
Final Remarks
Pre-modern Zoroastrian law was an exhaustive legal system covering most areas of social
life - from criminal law to the law of property. This was particularly true before the Arab
Muslim conquest of Persia. By contrast, the only areas of law in modern South Asia with
a distinctly Zoroastrian character are matrimonial, inheritance, and religious trust law.
There is little, if any. continuity between pre-modern and modern Zoroastrian law. The
latter was something new. It was invented by elite male Parsis of colonial Bombay. who
excelled as lobbyists, lawyers, and judges (Sharafi 2014: 84-123). Through legislation and
litigation, they created a body of law that differed both from English law at critical points,
and from the customary Zoroastrian norms of Persia and Gujarat. This reinvention of
Zoroastrian law set the foundations for Zoroastrian law in India and Paldstan today.
In Western jurisdictions, Zoroastrians appear most frequently in immigration-related
308
MITRA SHARAFI
litigation, and in suits about the establishment of religious buildings. In Iran, Zoro·astrians
have limited legal autonomy over intra-community disputes, but continue to labor under
many of the legal disabilities imposed upon the recognized religious minorities.
Abbreviations
IS(A) Act
PISA
PMDA
Indian Succession (Amendment) Act
Parsi Intestate Succession Act
Parsi Marriage and Divorce Act
Fu rther Readi ng
Phiroze Irani and Flavia Agnes have written
studies of Parsi personal law in contemporary
South Asia (Irani 1 9 6 7; Agnes 2 0 0 1 , 2 009).
Theirwork focuses on matrimonial and inher­
itance-related legislation. The most detailed
study of early colonial Parsi legal history is by
Palsetia {2 00 1 ) . He contextualizes the 1 8 3 7
and 1 8 6 5 Acts, along with a number of
important cases {Palsetia 2 00 1 : 1 9 7-2 7 6) .
For a history o f colonial Parsi legal culture,
including collective lobbying strategies and
litigation patterns, Parsi attitudes toward law
(legal consciousness) , and the Parsi legal pro­
fession, see Sharafi (20 1 4). On Parsi women
and law in the 1 9 th and 20th centuries , see
Gould { 1 9 94 : 1 7 1-1 78). On the law of Parsi
trusts, and SaTdat v. Bella ( 1 9 2 5 ) in particular,
see Sharafi (200 6 , 2 0 1 4). On Petit v. Jijibhai,
see Sharafi (2 0 0 7) , along with Writer ( 1 9 94 :
1 2 9-1 4 8 ) , Palsetia ( 2 00 1 : 2 2 8-2 5 1 ) ,
Stausberg (2 002c: 5 3-5 7) , and Hinnells
{200 5 : 1 1 8-1 2 0 ) . For the cultural context of
the 1 8 6 5 Acts ' drafting and lobbying process,
see Bengalee ( 1 8 6 8 ) . For a more technical
legal treatment of Parsi legislation, along
with relevant case law, see Rana ( 1 9 02 ,
1 9 3 4) on the 1 8 6 5 matrimonial and inheri­
tance statutes; Balsara ( 1 9 3 6) and Wadia and
Katpitia ( 1 9 3 9 ) on the Parsi Marriage and
Divorce Act of 1 9 3 6; and Shabbir and
Manchanda { 1 9 9 1 ) on the 1 9 8 8 Parsi matri­
monial legislation. Wadia and Katpitia ( 1'9 3 9 )
offer a clear and accessible comparison of the
1 8 6 5 and 1 9 3 6 Matrimonial Acts in chart
format. Regrettably, the history of the Parsi
legal profession in India is beyond the scope of
this chapter. On this topic, see Mistry ( 1 9 1 1 ,
1 9 2 5 ) ; Vachha ( 1 9 62); High Court of
Judicature at Bombay ( 1 9 8 8 ) ; Bombay
Incorporated Law Society Centenary ( 1 9 9 5) ;
Seervai {2 000, 2 0 0 5 ) ; Nariman (2 0 1 0) ;
Chandrachud, Mohta, and Dalvi (2 0 1 2 ) ; and
Sharafi ( 2 0 1 2 , 2 0 1 4 ) . On law and the recog­
nized religious minorities in the Islamic
Republic of Iran, see S anasarian (2000) and
Sanasarian and Davidi (200 7) .
Cases
Assistant Director of Inspection (Income Tax
Exemption) v. Freny Siyavakhsh Anjirbaug and
Siyavakhsh Rustomji Anjirbaug Charitable
Trust (and cross-suit) 1 9 9 8 (60) Tax Tribunal
Judgments (India) 9 1 .
Avari, Dinshaw B. and another v. Karachi
Municipal. Corporation and others 1 9 6 3 ( 1 )
Pakistan Law Reports 8 6 9 .
Bal.sara, In re. 1 7 1 Federal Reporter (US) 2 9 4
( 1 9 09 ) .
LAW AND MODERN ZOROASTRIANS
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State for India in Council Indian Law Reports
6 Bombay series 3 9 8 ( 1 8 82).
Banaji, Limji Nowroji v. Limbuwalla Indian Law
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Batliwalla, Mrs. Perviz Sarosh and another v.
Mrs. Viloo Plumber and another 1 9 9 9 Indlaw
Mum 5 6 7, 2000 All India Reporter
(Bombay) 1 8 9 .
redacted at party's request;
please direct any questions to the
author: mitra.sharafi@wisc.edu
Colabewala, Jimmy Noshir; Rukshana Jimmy
Colabewala, Benaz Jimmy Colabewala, and Eric
Jimmy Colabewala v. Alberto R. Gonzales,
Attorney General 1 8 0 Federal Appendix (US)
73 6 , 2 0 0 6 WestLaw 1 3 8 9 6 8 0 (US Court of
Appeals , Ninth Circuit) .
Commissioner of Income Tax, Bombay City v. Bai
Navajbai N. Gamadia 1 9 48 ( 1 6) Income Tax
Reports (India) 1 09 .
Commissioner of Wealth Tax, Bombay City ll v.
Trustees of the J. P. Pardiwala Charity Trust
1 9 6 5 ( 5 8 ) Income Tax R:eports (India) 4 6 .
Cowasjee, Ardeshir and nine others v. Muhammad
Naqi Nawab andfive others 45 Pakistan Legal
Decisions 1 9 9 3 Karachi 6 3 1 .
Cowasjee, Ardeshir, Karachi and four others v.
Multiline Associates, Karachi and two others 4 5
Pakistan Legal Decisions 1 9 9 3 Karachi 2 3 7 .
Cowasjee, Palunjee v. Nowrojee Nuserwanjee and
Pestonjee Rustomjee 2 Sudder Dewanee
Adawlut Reports (Bombay) 244 ( 1 8 5 5 ) .
Cowasjee, Rustom E and two others v. Central
Board of Revenue and two others 1 9 8 5
Pakistan Tax Decisions 5 2 9 .
Cursetjee, Arda.seer v. Perozeboye 6 Moore's
Indian Appeals 348 ( 1 8 5 6) .
Davw; Mancherji Kawasji and another v. Mithibai
Indian Law Reports 1 Bombay series 5 0 6
( 1 8 7 7) .
Dhunjeesha, Ardaseer and son and heir
Jahangheersha, a minor by his mother Awabaee v.
Hormusjee andNusserwanjee 3 Sudder Dewanee
.Adawlut Reports (Bombay) 1 6 5 ( 1 8 5 6).
Divecha, Jehangir Rustomji v. Bai Kuldbai Indian
Law Reports 2 7 Bombay series 2 8 1 ( 1 9 0 3 ) .
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Dolikuka, Hoshie Shavaksha v. Thrity Hoshie Dolilmka
l 9 84 Al1 India Reporter (Supreme Court) 410,
1 9 84 Supreme Court Cases (India) 345.
Duba.sh, Peshotan v. Chief Controlling Revenue
Authority, Karachi, and others 1 9 60 (2)
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3 10
MITRA SHARAFI
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3 12
MITRA SHARAFI
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�urat, with reference to the proposed report
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1 9 3 6 Parsi Public Trusts Registration Act
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