Rajasthan High Court - Jodhpur
Rehmat Bibi vs State Of Rajasthan on 6 April, 2021
Author: Dinesh Mehta
Bench: Dinesh Mehta
(1 of 5) [CW-355/2019] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 355/2019 Rehmat Bibi D/o Mohammad Khan, Aged About 35 Years, 69, Near Purana Mahal Ghati, Ward No. 8, Dungarpur, District Dungarpur, Rajasthan.
----Petitioner Versus
1. State Of Rajasthan, Through The Secretary, Department Of Education, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
2. Secretary, Department Of Rural And Panchayati Raj, Jaipur, Rajasthan.
3. Director, Elementary Education Department, Bikaner, District Bikaner, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Firoz Khan
For Respondent(s) : Mr. Kailash Choudhary
JUSTICE DINESH MEHTA
Judgment
06/04/2021
1. Feeling aggrieved of rejection of her candidature as a divorcee' candidate, petitioner has approached this Court by way of filing a writ petition under Article 226 of the Constitution of India.
2. The facts appertain are that the petitioner applied for the post of Teacher Grade-III Level 2 subject-Urdu, pursuant to recruitment notification dated 31.07.2018. Petitioner submitted her application form as a divorcee' candidate on 22.08.2018, while the last date of furnishing application form was 25.08.2018. (Downloaded on 07/04/2021 at 08:41:13 PM)
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3. The respondents rejected petitioner's candidature as a divorcee', because she did not have a decree of divorce till last date of submitting application form.
4. The decree of divorce, however, came to be issued on 19.09.2018 by Family Court, Dungarpur.
5. Learned counsel for the petitioner submitted that, when the petitioner had furnished her application form, she had already applied for declaration of dissolution of marriage under the provisions of the Dissolution of Muslim Marriage Act, 1939 but the final decree came to be issued on 19.09.2018 - only 25 days after submitting the application form and thus, petitioner's candidature as a divorcee' could not have been rejected.
6. Learned counsel invited Court's attention towards various documents filed with the writ petition, more particularly the certificate dated 05.07.2013 issued by Panch Modasiyan, Mohallah Ghanti, Dungarpur (Rajasthan) and certificate issued by Municipal Councilor, Dungarpur to establish that petitioner was divorced by her husband in the year 2013 itself.
7. Learned counsel also invited Court's attention towards Annex.4 to show that the petitioner has been receiving pension since July, 2013 and argued that since the petitioner has been receiving pension from the State Government, rejection of her candidature is erroneous.
8. Mr. Choudhary, learned counsel for the respondents vehemently opposed the submissions so made by the petitioner and highlighted that the pension which the petitioner has been receiving since 2013, is being paid to her as "ifjR;drk"-destituted/deserted woman and not as a divorcee' and emphasised that considering difference between expression (Downloaded on 07/04/2021 at 08:41:13 PM) (3 of 5) [CW-355/2019] "destitute woman" and a "divorcee'", petitioner cannot be given reservation meant for a divorcee' or widow.
9. It was also argued that the purported certificates issued by Panch Modasiyan, Mohallah Ghanti, Dungarpur (Rajasthan) and Municipal Councilor cannot be treated to be valid documents for the purpose of divorce and unless a candidate has a decree of divorce granted by a competent Court, she cannot claim her candidature as a divorcee'.
10. Inviting Court's attention towards condition relating to reservation appended in point No.(vii) and (viii) of Para 11.2 of the subject advertisement, learned counsel argued that the said condition is very specific and thus, a candidate who does not have a decree of divorce as on the date of submitting application form cannot claim to be considered as a divorcee'.
11. The relevant portion of the advertisement reads thus-
"¼vii½ fo/kok efgyk@fookg&fofPNUu dh fMØh@fo"ks'k ;ksX;tu oxZ@mRd`'V f[kykM+h dk izek.k i= vkWuykbu vkosnu dh vafre fnukad ds iwoZ dk tkjh gksuk pkfg,] vU;Fkk vafre fnukad ds ckn tkjh gq, izek.k i=ksa ds vH;fFkZ;ksa dks oxZ fo"ks'k dk ykHk foKkfir inksa gsrq ns; ugha gksxk vkSj uk gh bl laca/k esa fdlh izkFkZuk i= ij fopkj fd;k tkosxkA
(viii) fookg&fofPNUu efgyk ds vUrxZr ykHk rHkh ns; gksxk] ;fn mls l{ke U;k;ky; vFkok fof/k }kjk bl gsrq vknsf"kr fd;k tk pqdk gksA ^^fo/kok efgyk dks ifr dk e`R;q izek.k i= ,oa ifr ds uke ls fyad izek.k i= Hkh izLrqr djuk gksxkA blds vfrfjDr fo/kok@ifjR;Drk Js.kh dh efgyk vH;fFkZ;ks dks iqufoZokg ugha fd;s tkus dk "kiFk i= Hkh izLrqr djuk gksxkA"
12. Heard.
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(4 of 5) [CW-355/2019] 13. In the opinion of this Court, the documents at Page No.38 and 39 issued by the Panch Modasiyan, Mohallah Ghanti, Dungarpur and Municipal Councilor cannot be considered as an evidence or a valid documents to prove dissolution of marriage.
14. Argument of the petitioner that, she had been divorced by her husband according to the prevailing custom, is not well founded inasmuch as neither by way of pleadings nor otherwise, the petitioner has brought forth any particular date on which her husband had given her divorce by way of "instant divorce" (Talaq- e-biddat).
15. In absence of any assertion as to the date of customary divorce, even presumption of divorce cannot be drawn. The fact that petitioner is getting pension as a destituted/deserted woman further fortifies that her legal status as a married woman persisted till she got legally separated.
16. A perusal of the decree of divorce dated 19.09.2018 clearly shows that there was no whisper about the customary divorce and the decree has been issued on the ground of cruelty under Section 2(8) of the Act of 1939, that too effective from the date of issuance of the decree. This being the position, the petitioner can be treated to be a divorcee' only from 19.09.2018 and thus, not entitled to claim reservation meant for divorcee' candidates.
17. So far as petitioner's assertion that, she has been getting pension from the State Government under the benevolent scheme is concerned, a simple look at page No.41 reveals that she has been receiving pension as a destituted/deserted woman and not as a divorcee'. A deserted woman cannot legally be treated to be a divorced woman.
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18. In view of the aforesaid, this Court affirms and approves the respondents' action of rejecting petitioner's candidature as a divorcee'.
19. Instant writ petition is, thus, dismissed.
20. Stay application also stands disposed of.
(DINESH MEHTA),J 11-Rahul/-
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