Rajasthan High Court - Jodhpur
Miss Roopee vs State Of Rajasthan on 18 March, 2021
Author: Dinesh Mehta
Bench: Dinesh Mehta
(1 of 7) [CW-3836/2021] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3836/2021 Miss Roopee D/o Shri Bharmal Ram, Aged About 30 Years, B/c Vishnoi , R/o Dhamana , Tehsil Sanchore , Distt. Jalore
----Petitioner Versus
1. State Of Rajasthan, Through The Secretary , Department Of Medical And Health , Government Of Rajasthan , Jaipur
2. The Mission Director, National Healht Mission , Directorate Nhm , Swasthya Bhawan , Tilak Marg J, C- Scheme , Jaipur
3. The Chief Medical And Health Officer, Jodhpur
----Respondents For Petitioner(s) : Mr. Sushil Solanki For Respondent(s) : Ms. Vandana Bhansali JUSTICE DINESH MEHTA Judgment Reportable 18/03/2021
1. By way of present writ petition, the petitioner has challenged exclusion of her name from the category of divorcee'.
2. The facts apropos the case in hands are that the petitioner vied for the post of Community Health Officer, pursuant to recruitment notification dated 31.08.2020.
3. At the time of submitting her application form on 16.09.2020, the petitioner showed herself to be a divorcee' and staked her claim against the seats reserved for divorcee'.
4. The basis of claiming herself to be a divorcee' was, an agreement said to have been executed between the petitioner and her husband on 08.04.2017.
(Downloaded on 22/03/2021 at 08:53:10 PM)
(2 of 7) [CW-3836/2021]
5. Mr. Solanki, learned counsel for the petitioner submitted that respondents have erred in not considering petitioner as a divorcee' inasmuch as the petitioner had produced before the respondents a copy of the agreement dated 08.04.2017, whereby her marriage has been dissolved with mutual consent.
6. It was also submitted by Mr. Solanki that by the time of document verification, petitioner had filed an application for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955 (for short, "the Act of 1955") and during the course of verification of documents, she had showed copy of said application, thus the petitioner ought to have been considered as divorcee'. It was without prejudice to his basic argument that the customary divorce/Talaknama duly reduced into writing on 08.04.2017, was enough to establish that petitioner was a divorcee'.
7. Heard and perused the record.
8. It is noteworthy that in the above agreement, labelled as 'Talaknama', the petitioner and her husband themselves have stated that they contracted marriage as per the Hindu (Bishnoi) rituals. Thus, there cannot be any denial of the fact that they are Hindus.
9. Petitioner who is indisputably a "Hindu" (may be belonging from a Backward Class), is governed by the provisions of the Act of 1955.
10. A matrimony of a Hindu can be brought to an end or marriage of a Hindu male or female can be dissolved only by a decree granted under Section 13/13-B of the Act of 1955. (Downloaded on 22/03/2021 at 08:53:10 PM)
(3 of 7) [CW-3836/2021]
11. All Hindus including Vishnois, the community from which petitioner belongs, are governed by the Act of 1955. Members of Scheduled Tribe alone, are immune from the applicability of provisions of the Act of 1955. That too, because of the exclusionary provision contained in sub-section (2) of Section 2 of the Act. Sub-Section (2) of Section 2 of the Act of 1955 reads thus:
"(2) Notwithstanding anything contained in sub-
section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs."
12. Section 4 of the Act of 1955 reads thus:
"4. Overriding effect of Act.--Save as otherwise expressly provided in this Act,--
(a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act."
13. A combined reading of the provisions quoted above, namely, Section 2(2) and 4 of the Act of 1955 leaves no manner of doubt that a nuptial relationship cannot be annulled, except by a decree of divorce granted by a competent Court. Any custom or usage to dissolve the marriage has no sanctity of law so far as Hindus (other than a member of Scheduled Tribe) are concerned.
14. It has been held by Hon'ble the Supreme Court in Subramani and Ors. Vs. M. Chandralekha reported in (2005) 9 SCC 407, as under:-
"15. Though no issue was framed on this point the appellants did examine DWs. 2 to 5 to show that in (Downloaded on 22/03/2021 at 08:53:10 PM) (4 of 7) [CW-3836/2021] their community marriage could be dissolved under the customary law. We have gone through the statements of these witnesses which have been reproduced verbatim after translation in the order of the Trial Court. On perusal of their testimonies, it cannot be held that custom was prevalent in their community to dissolve the marriage by mutual consent. Neither of these witnesses has stated as to what is the procedure to be followed for dissolving a marriage under the custom prevalent in their community. It is not their case that marriage could be dissolved between the husband and wife in their community by executing a document in the form of an agreement. The agreement B-1 has been signed only by the respondent and her late husband Kandasamy has not signed the same. In the absence of any pleadings that marriage between the husband and wife could be dissolved in their community under custom and in the absence of any satisfactory evidence let in to prove the custom prevalent in the community or the procedure to be followed for dissolving the marriage it cannot be held that marriage between the respondent and her husband stood dissolved by executing the marriage dissolution deed Ex. B-1. It is not proved that the document Ex. B-1 is in conformity with the custom applicable to divorce in the community to which the parties belong. "
15. Further in Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga reported in (2005) 2 SCC 33, it has been held thus:-
"12. So far as the appeal preferred by the wife is concerned, on reconsideration of the evidence on record, we find no ground to take a view different from the one taken by the High Court and upset the conclusion that the second marriage was null and void.(Downloaded on 22/03/2021 at 08:53:10 PM)
(5 of 7) [CW-3836/2021] The wife did not deny the fact that her marriage was arranged with Girdhari Lal Lakhotia in the year 1973 and after marriage she lived with the members of the family of her previous husband. It is also an admitted fact that she instituted proceedings for obtaining decree of divorce being Divorce Petition No. 76/78 in the Family Court at Amravati. It is also not denied that no decree of divorce was obtained from the Court and she only obtained a registered document of Chhor Chithhi from her previous husband on 15.5.1979. Existence of such customary divorce in Vaish community of Maheshwar is has not been established. A Hindu marriage can be dissolved only in accordance with the provisions of the Act by obtaining a decree of divorce from the Court. In the absence of any decree of dissolution of marriage from the court, it has to be held that in law the first marriage of the wife subsisted when she went through the second marriage on 11.7.1981 with the present husband. The appeal preferred by the wife, therefore, against grant of decree of declaration of her second marriage as void, has to be rejected whatever may be the circumstances which existed and the hardships that the wife had to undergo, as alleged, at the hands of her second husband."
16. It is a settled position of law that eligibility or status of a candidate has to be reckoned on the date of advertisement or by the last date of submitting the application form.
17. The petitioner claims herself to be a divorcee' on the basis of mutual agreement dated 08.04.2017. But concededly, when the petitioner submitted her application form (on 16.09.2020), she did not have decree of divorce.
18. True it is, that provisions contained in Repeal and Savings Clause of the Act of 1955, particularly sub-section (2) thereof, (Downloaded on 22/03/2021 at 08:53:10 PM) (6 of 7) [CW-3836/2021] insulates or protects the rights recognized by custom, but then, prevalence of such custom is required to be proved by leading cogent evidence. In utter absence of evidence and pleadings, solely on the basis of document relied upon by the petitioner, neither can this Court pronounce dissolution of petitioner's marriage nor can it venture to undertake such exercise in its extraordinary jurisdiction under Article 226 of the Constitution.
19. The terms of the recruitment notification were unambiguous
- it required decree of divorce. Hence, no fault can be found in the respondents' action of rejecting petitioner's candidature.
20. This being the position, in considered opinion of this Court, neither the agreement dated 08.04.2017 nor the application filed under Section 13-B of the Hindu Marriage Act can be treated to be a decree of divorce. Hence, the petitioner cannot be treated a divorcee' as the decree, which is likely to be passed, would be effective from the date of decree. Petitioner, thus cannot take any advantage of her application under section 13-B of the Act of 1955, which came to be filed after submitting of her application form for the post in question.
21. In view of the aforesaid and following the judgments rendered in SBCWP No.9649/2017 (Suman Choudhary Vs. State of Rajasthan & Ors.), SBCWP NO.7712/2020 (Priya Vyas Vs. State of Rajasthan & Ors.) and SBCWP No.14372/2017 (Jyoti Singhal Vs. State of Rajasthan & Ors.), this Court does not find any merit and substance in the present writ petition, for which it is hereby dismissed.
22. Needless to observe that dismissal of the present petition and rejection of petitioner's candidature as a divorcee' would not disentitle her from being considered for the post on the basis of (Downloaded on 22/03/2021 at 08:53:10 PM) (7 of 7) [CW-3836/2021] her own merit, in open category or under "OBC Non Creamy Layer" category.
23. Stay application also stands disposed of.
(DINESH MEHTA),J 48-Rahul/-
(Downloaded on 22/03/2021 at 08:53:10 PM) Powered by TCPDF (www.tcpdf.org)