BOMBAY HIGH COURT

SAM SHAPOOR IRANI VS. NAOMI SAM IRANI

DATED : 29.10.2018

Summarised Judgement (Scroll for Complete Judgement)

Introduction :

Mrs. Irani was married for 10 years, and shared two children with her husband. She sought divorce from him on grounds of cruelty before the Bombay High Court. However, even after two years of filing the petition, the jury was not appointed. Thus faced with the inevitable and prolonged delay in progress of the proceedings, she decided to approach the Apex Court.

Facts of the Case :

In her petition before the Supreme Court she challenged the Sections 18, 19, 20, 24, 30, 46 and 50 of the PMDA (which deal with the jurisdiction, constitution and appointment of the jurors) as being violative of Art 14 and 21 of the Constitution. She argued that the PMDA had deprived her of the specialised jurisdiction of normal family courts, and subjected her to mental agony. The system was alleged to have breached Article 14 of the Constitution, which guarantees equality, as it prevents Parsi women from approaching traditional family courts, and availing the benefits extended by them. This places Parsi women on a separate footing vis-à-vis women belonging to other faiths, thereby propagating inequality within the gender on the basis of religion.

The validity of personal laws is subject to their testing on the touchstone of fundamental rights, and contravention with the latter can render the personal laws invalid.

It is worth noting that family courts are equipped with child care centres, counsellors, in-camera hearings and trained judges who serve as presiding officers, and these benefits are lacking in the Parsi jury system. Further, the selection and sitting of jury members takes an unreasonable amount of time, which causes unjustified delay in proceeding of the case.

Unlike Hindu or Christian marriages which have the provisions for quick disposal of cases through mediation procedures, the Parsis are deprived of such speedy disposal mechanisms as the PDMA lacks provisions for alternate dispute resolution mechanisms, and the presence of jury is an impediment to mediation proceedings.

The presence of jury members leads to breach of privacy of the parties as it gives random members of the local Parsi community the chance to offer opinions on delicate and personal matters. The Act does not prescribe any requisite criteria for qualification as a jury member. Therefore, most of the jury is biased owing to societal norms, and moral values, instead of sound legal or judicial principles.

Judgement :

The Supreme Court issued a notice to the Central Government, directing it to put forth its views on the issue. The Centre is set to make its submissions in the upcoming few months.

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BOMBAY HIGH COURT

SAM SHAPOOR IRANI VS. NAOMI SAM IRANI

DATED : 29.10.2018

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

CONTEMPT PETITION (L) NO. 114 OF 2018

IN

PARSI SUIT NO. 14 OF 2016

Sam Shapoor Irani                                                   ...Petitioner

Versus

Naomi Sam Irani                                                      ...Respondent

Ms Sanobar Nanavati, for the Petitioner.

CORAM : G.S. PATEL, J

DATED : 29th October 2018

PC:-

1. There is no manner of doubt now that the Respondent is deliberately evading service of this Contempt Petition. I issued notice on 4th October 2018 returnable on 19th October 2018. I directed a copy of the notice to be sent to the Advocate who had previously appeared for the Respondent. On 19th October 2018 noting that the name of the Respondent's Advocate was not shown on the board, I directed the matter to be listed today and requested Ms Nanavati to give notice to the Respondent and also to her previous Advocate of today's listing. This has been done. Ms Nanavati shows me the copies of the necessary communications and 29th October 2018 926-CONPL114-18.DOC the courier receipts. An Affidavit of Service is to be filed by Thursday, 1st November 2018.

2. The Contempt Petition is filed by Sam Irani, the original Petitioner in the Parsi Suit. The Respondent, Naomi, is his wife. The Parsi Suit itself seeks a decree of divorce under Section 32(dd) of the Parsi Marriage and Divorce Act 1936, or, in the alternative, under Section 32(g) of that Act.

3. The couple have two minor children. The elder is their son, Mehroy, born on 14th August 2007. The younger is a daughter, Nysha, born on 22nd September 2009. I have previously met both children in chambers, but that was in another context regarding access. For some time, Naomi was a teacher at the New Era School in Panchgani. Both children were enrolled in that school. This resulted in a reduction of their tuition and other fees. The children were day scholars in the school since Naomi lived with her father in Panchgani. Sam had access on alternate weekends and use to travel to Panchgani to meet them. I had made an order for occasional visits to Mumbai.

4. The present Contempt Petition claims deliberate disobedience by Naomi of my order of 15th December 2016, a copy of which is at Exhibit "C" from pages 24 to 30 of the present Petition. I dealt there with visitation rights and vacation access. I also dealt with the question of schooling costs. Paragraphs 8 to 11 of my order read thus:

29th October 2018 926-CONPL114-18.DOC "8. There is then the question of Sam's contribution to the children's schooling costs, medical costs, and monthly expenses plus -- and this is all-important -- the costs of football coaching. The schooling costs admittedly are Rs. 40,000/- per month for the two children. They are billed as boarders though they are day scholars. Sam has agreed to pay these fees. Sam has also agreed to bear the medical expenses for the children and Naomi on actuals against presentation of appropriate bills. He agrees also to pay Rs. 30,000/- per month towards the food and maintenance expenses for both children, and, in addition, will pay for the football coaching on actuals. I leave it to the parties to work out the mode and dates of these payments. I am assured by Ms Nanavati and Mr Ankhad that there should be no difficulty on this aspect either. This arrangement will be effective from January 2017.

9. There is then the question of visitation rights. So far, Sam has been allowed day access to the children at Panchgani on specified days in Diwali. Mr. Ankhad for Naomi states that there is no difficulty if Sam has overnight access to the children for the short three or four day vacation that they have from school in the forthcoming Christmas Vacation. He may bring them to Mumbai as well. I must record my appreciation of the approach of both parties in this regard.

10. The parties also agree that on the second and fourth weekends commencing from January 2017, Sam will be entitled to the day access in Panchgani. On the fourth weekend of each month, Sam will be entitled to overnight access from Saturday morning to Sunday afternoon. Naomi must make arrangements to adjust any tuitions or classes for that fourth Saturday of every month.

11. As to vacation access for the future, I will leave this for a later date depending on the exact days of the children's school holidays and where the parties wish to travel. As far as I can tell, there seems to be no objection now to the children being taken by either parent out of town or even abroad. I will only note that earlier in 2016, Naomi took both children to the USA on a brief holiday. These arrangements can be made by mutual consent when there are more firm plans made in future."

5. Sam now says that Naomi has not only quit her job with the school, but on completely false and untrue grounds has withheld from him all access to, and even visitation rights in respect of both minor children, and that this has been the state since April 2018. In the present Petition, there is a narrative from paragraph 14 onwards about incidents from early April 2018 including allegations of violence made by Naomi against Sam, some allegedly even in the presence of the children. The Petition says that these allegations are untrue and have been used by Naomi to turn the children against him.

6. This is not, therefore, a question of compelling the children to act against their wishes or to force them into any situation that is uncomfortable. It is a matter of the Respondent-mother contriving a situation, or so the Petitioner says, by which his access to the children is being used to bargain for a higher financial contribution, now that she has stopped working in the school, not only for the children but for herself as well.

7. This, correctly read, is the essence of the Petition before me today. I noted in my previous order that the allegations were serious. I have given the Respondent multiple opportunities to respond. She has not even come forward. I will now, therefore, be compelled to issue a formal summons to the Respondent personally to remain present in Court on 19th November 2018, and making it clear that if the Respondent does not present herself on that day pursuant to the service of summons, I will proceed to compel her attendance by issuing an arrest warrant. The Respondent is not to take the children out of the country until further orders of the Court. I am not granting any ad-interim order in terms of prayer clauses (c), (d) and

(e) for the present since this appears to me to be a relief that forces the will of the Court on the two minor children, something I am unwilling to do at this stage, and, in any event, not until I have had an opportunity to meet the children again. The address for the summons is:

Mrs. Naomi Sam Irani, Bungalow No. 4/5, God's Valley, Behind Panchgani International School, Kinghar Road, Panchgani.

8. The Contempt Petition is, in the meantime, admitted. The Registry will issue notice under Rule 9 of the Bombay High Court (Contempt of Court) Rules to the Respondent to show-cause why she should not be punished in contempt, returnable on 19th November 2018.

(G. S. PATEL, J) 29th October 2018

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