Rajasthan High Court - Jaipur
Renu Sharma vs State Of Rajasthan And Ors. on 12 September, 1997
Equivalent citations: 1998WLC(RAJ)UC297, 1997(2)WLN438
JUDGMENT N.L. Tibrewal, J.
1. The petitioner is a divorcee woman. Her grievance is that she has been wrongly denied appointment as Teacher Grade III by the District Education Officer; Jhunjhunu. The factual position is not disputed. In pursuance to advertisement issued by the Director, Primary & Secondary Education, Rajasthan, Bikaner inviting applications from eligible candidates for the recruitment in the vacancies of Teacher Grade II and III for the year 1996-97, the petitioner applied for appointment as Teacher Grade III against the vacancies in Jhunjhunu District.
2. The petitioner had requisite qualifications prescribed for the post. She was selected for appointment in the selection for appointment and her name was shown at S.No. 3 in merit list of reserve category 'Divorcee/Widow Women'. However, she was denied appointment on the ground that the decree of divorce was passed by mutual consent of the parties under Section 13B of the Hindu Marriage Act. From the pleadings it also transpires that candidates, who were less meritorious in the reserve category of 'Divorcee/Widow Women' than the petitioner has been given appointment. Thus, the only question for decision in this writ petition is as to whether denial of appointment to the petitioner on the ground that the decree of divorce was passed by mutual consent is justified or not ?
3. This question has been considered by me thoroughly in Smt Prabha Sharma v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 147/97 decided on 9.9.1997 and it has been held as under:
4. "After giving careful and deep consideration to the rival contentions made by learned Counsel on both sides, I am of the opinion that denial of employment/appointment to the petitioner, inspite of her being at S.No. 1 in the merit, is an arbitrary and discriminatory action of the respondents.
5. Undisputedly, the decree of divorce, dissolving marriage of the petitioner with Rajendra Sharma, has been passed by a competent court, i.e. the Family Court, Gorakhpur, on July 7, 1994 much before the advertisement calling applications for the recruitment. It is true that the decree has been passed under Section 13B of the Act by mutual consent of the parties. Section 13B, providing divorce by mutual consent, was introduced by Marriage Laws (Amendment) Act, 1976 (Act No. 68 of 1976). Prior to this amendment a marriage could not be dissolved by a consent decree, even consent of the parties was fair and genuine due to failure of marriage. Section 13B has been inserted by the Legislature with a view to dissolve the marriage by mutual consent where the parties genuinely felt that conjugal harmony was not possible in future and the marriage was broken down completely beyond all re approachment or reconciliation, instead of dragging the matter for a long time and to face an ordeal of a complete trial with allegations and counter allegations against each other. Life is precious and a matrimonial dispute, in fact, is a joint problem of the spouses and it involves the entire family. Where relations between the spouses become so strained, with no hope of reconciliation in future, it is always in interest of all that such unsuccessful marriage is dissolved as early as possible. When there is no possibility of conjugal harmony to be restored between the parties, the inevitable and proper course is to part with each other. Section 13B, therefore, provides divorce by mutual consent and safeguards are contained in the section itself, which reads as under:
13-B. Divorce by mutual consent--(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the [Bte of the presentation of the petition referred to in Sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
6. Section 23 of the Act provides further safeguards so that the provision of divorce by mutual consent may not be abused or misused by the parties. A decree of divorce on the ground of mutual consent can be granted by the Court only after being satisfied that such consent has not been obtained by force, fraud or under influence and the petition is not presented or prosecuted in collusion with the respondent.
7. A decree of divorce by mutual consent is as good as a decree of divorce obtained under Section 13 of the Act. The effect of a decree of divorce, whether obtained under Section 13 or 13B, is dissolution of marriage for all purposes--giving right to the parties to marry again. A decree of divorce by mutual consent carries a presumption that it has not been obtained in collusion or otherwise by force, fraud or undue influence on any of the parties. Consent decrees perse in matrimonial matters are not collusive as would be evident from legislative intend. The apprehension of abuse or misuse from a consent decree is prima facie unfounded as the concerned competent court is required to take necessary care and precautions and is to be satisfied that petition is not collusive and consent has not been obtained by force, fraud or under influence of any of the parties.
8. In the instant case there are circumstances to show that consent decree of divorce has not been obtained for ulterior object. Firstly, the decree has been passed in the year 1994 much prior to the policy decision of the State Government and publication of the advertisement for recruitment. The petitioner has been living with her father in village Ranasar in district Jhunjhunu which is far away from her husband's native place. In the order, dissolving marriage, there is a mention of payment of Rs. 70,000/- by two bank drafts to the petitioner. The payment of Rs. 70,000/- by bank drafts also shows that the decree could not be as a result of collusion.
9. Then, there is no such mention in the advertisement that a consent decree of divorce shall not entitle a divorcee women to get appointment. In the advertisement, contrary to it, it is stated that the decree of divorce should not be on the ground of adultery, cruelty or wilful desertion of the wife.
10. On merits, admittedly, the petitioner had secured highest percentage of marks amongst divorced/widowed women as she was at S.No. 1 in merit list of the reserve category of Divorce/Widow Women'. Women with lesser marks have been given appointment. Hence, denial of appointment to the petitioner, on the face, is arbitrary and discriminatory and violates articles 14 and 16 of the Constitution of India. Thus, the petitioner has been wrongly denied appointment."
11. This petition, therefore, deserves to be allowed in terms of the decision rendered in Smt. Prabha Sharma's case (supra).
12. The petition is allowed. The respondents are directed to give appointment to the petitioner immediately on the post of Teacher Grade III from the date of giving appointment to others under reserve category of 'Divorce/Widow Women' with continuity of service but with no back salary.