JUDGMENT :

1. This is a suit for divorce by mutual consent filed under Section 32B of the Parsi Marriage and Divorce Act, 1936 (for short, “1936 Act”) whereby plaintiff no.1 Rohinton Minoo Surty and plaintiff no.2 Kashmira Rohinton Surty are before the Court praying that the marriage solemnized between them on 21 December, 2004 at Dadyseth Atasbehram, Dadyseth Agiary Lane, Fanaswadi, Mumbai – 400 002 be dissolved and a decree of divorce be pronounced under the provisions of Section 32B of the 1936 Act.

2. The relevant facts as stated by the parties are:-Plaintiff no.1, who was a divorcee, got married to plaintiff no.2, then a spinster (nee Kashmira Aspi Dadachanji). Their marriage was initially registered under the Special Marriage Act, 1954 by the Marriage Officer, Thane on 24 September, 2004. However, as desired by the plaintiffs, parents and relatives, a marriage ceremony of the plaintiffs according to the Parsi Zoroastrian rites and customs, was performed on 21 December, 2004 at Dadyseth Atasbehram, Dadyseth Agiary Lane, Fanaswadi, Mumbai – 400 002. Such marriage was registered by the Registrar of Parsi Marriages, High Court, Bombay on 22 December, 2004. The Certificate of Marriage is annexed at Exhibit “A” to the plaint. There is no dispute on this document. As set out in paragraph 3 of the plaint, after the plaintiffs marriage the plaintiffs were residing in different foreign countries.

3. There are no children born from the marriage. The plaintiffs have stated that within few years of their marriage, there were temperamental issues between the plaintiffs, which caused serious differences between them. This resulted into the plaintiffs ceasing to cohabit. In paragraph 5 of the plaint, the plaintiffs have stated that they have not cohabited as husband and wife since 18 March, 2018. They have also stated that there is an irretrievable breakdown of their marriage and no purpose would be served by continuance of the marriage which has broken down irretrievably. This, despite innumerable efforts having been made by the plaintiffs as well as their family members and friends to bring about a reconciliation. The plaintiffs have also stated that as per the Parsi matrimonial law, the plaintiffs being married as per the “aashirwaad” ceremony, it is imperative that the marriage is dissolved under the 1936 Act.

4. However, there is a peculiarity as set out by the plaintiffs in paragraph 9 of the plaint and as briefly noted above, that prior to the plaintiffs getting married as per the Parsi Zoroastrian rites and customs on 21 December, 2004, as per the procedure under the Special Marriage Act, their marriage was registered under the Special Marriage Act. This marriage came to be registered by the Marriage Officer on 24 September, 2004. As the plaintiffs decided to part ways by dissolving their marriage in a manner known to law, they had applied for a decree of divorce by mutual consent before the Family Court at Thane, by filing proceedings under Section 28 of the Special Marriage Act, 1954. The Family Court at Thane considering the plaintiffs’ plea granted a decree of divorce by mutual consent on 06 January, 2022 in the proceedings of PF No. 701 of 2021. Accordingly, the plaintiffs marriage as registered under the Special Marriage Act on 24 September, 2004 has stood dissolved.

5. In the aforesaid circumstances, the plaintiffs have filed the present proceedings now praying for annulment of their marriage as registered under the 1936 Act, on 22 December, 2004. It is contended that in the absence of the present suit being decreed, the record of marriages being maintained under 1936 Act would continue to depict that the plaintiffs’ marriage subsists, although their marriage stands already annulled under the Special Marriage Act. The plaintiffs contend that in any case the plaintiffs having married as per the Parsi Zoroastrian rites and their marriage being lawfully registered under the 1936 Act, it would be required to be annulled by a decre