A Justice elucidates the Position of Law

(Deen Parast, May 1994)

For decades, the heterodox lobby has argued that the term "Parsi" denotes race and "Zoroastrian" denotes the religion. Unlike orthodox Parsis who firmly hold the belief that both the terms are synonymous and can be used interchangeably, the heterodox argue that there can be "English Zoroastrians, French Zoroastrians..."! since Zoroastrianism is a religion which can be adapted (oops! "adopted") by anybody, while the term "Parsi" denotes race or people (from Pars) who, incidentally, happen to follow Zoroastrianism.

In the previous issues of 'Deen Parast' Judge Jamshed E. Sanjana (Retd.) has convincingly, and on the basis of both legal and scriptural evidence, demolished the aforesaid myth propounded by the heterodox lobby. In this issue, we are carrying excerpts from a treatise by Justice M. L. Jain, originally published in A.I.R. Vol. 72 (1985 October) pp 81-83.

According to Justice Jain, this treatise was written because his judgement delivered as a Judge of the High Court of Delhi in Smt. Maneka Gandhi vs. Smt. Indira Gandhi, A.I.R. 1984 Delhi 428, "invited criticism from some quarters that the judgement ignored the distinction between a Parsi and a Zoroastrian".

Here's what Justice Jain elucidates:

"....when we speak of a Parsi in India particularly in the matter of law relating to family and succession, a Parsi means a Parsi Zoroastrian. "....In Jamshed Irani v. Banu Irani (1966) 68 Bom. L.R. 794, evidence was led before Mody J. that Herodotus and Xenophon, the two great historians who lived in the third and fourth centuries B.C. referred to Iranians as Parsis. Till the Arab conquest in 631 A.D. almost all, if not all, the inhabitants of Iran were Zoroastrians, and were called Parsis. After the Arab conquest, there were extensive conversions to Islam and those who were so converted began to be called Musalmans. The label 'Parsi' came to be confined only to the Zoroastrians who escaped conversion. The Arab conquerors persecuted them and some of them migrated to India. Firdausi in his writings has referred at several places to the Zoroastrians of Iran as Parsis....

"....Spiegel in his introduction to a book on Avesta written by Henry Bleeck in 1864 used the word Parsis for Zoroastrians of Iran. In Volume XVIII of 'The Sacred Books of the East', Dr. West refers to the Parsi religion and Parsi scriptures in connection with the Zoroastrians of Iran. Max Muller has used the word 'Parsi' for Zoroastrians of Iran. D. F. Karaka's History of the Parsis (1884) shows that the word Parsi was used by him for a Zoroastrian. Lord Curzon, when not yet a peer, was in Persia as a Correspondent of the London Times in 1892. He wrote a book in which, while classifying the various creeds, he mentioned Parsis as a creed along with Shias, Sunis, Jews, etc. He also used the word Parsi synonymously with the people of Iran who professed the Zoroastrian religion. Napier Malcolm has in 1894 used the word 'Parsi' for the Iranis who professed the Zoroastrian religion. In 1906, the Shah of Iran in a Ferman used the word 'Parsi' in connection with the abolition of taxes levied on Zoroastrians. Percy Sykes, used the word 'Parsi' for the Zoroastrian of Iran. In Murray's Dictionary, 1909, Volume VII, the meaning of 'Parsi' is given as follows:

"One of the descendants of those Persians who migrated to India in the 7th or 8th century to escape Mohamedan persecution and who still retain their religion Zoroastrianism."

"Thus, according to lexicology, Parsi means the Zoroastrian of India.

"Yet, in Sir Dinsha Manekji Petit v Sir Jamsetji Jijibhai (1909) I.L.R. 33 Bom 509, an entirely unnecessary but a big debate took place as to the meaning of a Parsi...

"Saklat v. Bella (1926) 28 Bom L.R. 161 : A.I.R. 1925 PC 298 and Sarwar Merwan Yezdiar v. Merwan Rashid Yezdiar (1950) 52 Bom L.R. 876 : A.I.R. 1951 Bom 14 held, however, that Dinsha Manekji's case (1909) I.L.R. 33 Bom 509 travelled over much unnecessary grounds....Chagla J. in Yezdiar (supra) said that a Parsi is a person of Iranian ethnic descent domiciled in India and follows Zoroastrianism. It is thus clear on high authority that Parsi means a Zoroastrian Parsi.

"....In the Parsee Marriage and Divorce Act, 1936, Parsi was defined as 'a Parsi Zoroastrian'. Parsi also stands for a religion is further clear from clause (c) of sub-section (1) of Section 2 of the Hindu Marriage Act, 1955, of the Hindu Succession Act, 1956, of the Hindu Adoption and Maintenance Act, 1956 and clause (c) of sub-section (1) of Section 3 of the Hindu Minority and Guardianship Act, 1956. They further provide that these enactments apply to any person who is not a Musalman, Christian, Parsi or Jew by religion. This provision shows that Parsi is a religion. Any person who is a Parsi but did not subscribe to his religion -Zoroastrianism - was not, therefore, a Parsi."

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