The Rajasthan High Court at Jodhpur while dealing with a matter related to female appointments, held that a female candidate not having a Decree of Divorce cannot claim reservation against the reserved quota for divorcee women.

The Division Bench of Justice Sandeep Mehta and Justice Kuldeep Mathur stated –

"We are of the considered opinion that the requirement of a decree of divorce for a female candidate to claim reservation against the reserved quota for divorcee women on the cut off date/on the last date of submitting application form is sine qua non and the candidature cannot be considered against said category in the absence of decree of divorce issued by the competent court. A custom cannot be allowed to supersede the terms and conditions governing the recruitment process. The terms and conditions of recruitment are framed to adhere to the mandate enshrined under Articles 14 and 16 of the Constitution of India which guarantee equal opportunities to all citizens for their advancement in the matter of employment."

The question before the Court was whether an applicant who has taken customary divorce is entitled to apply in the category of 'Divorcee Female' without presenting a decree of divorce granted by a competent civil court before the cut-off date, as stipulated in the terms and conditions governing the recruitment process.

Additional Advocate General Pankaj Sharma represented the appellant while Advocate Rituraj Singh appeared for the respondent.

In this case, the respondents belonging to Scheduled Tribe/Tribal Sub Plan Area had applied against advertised posts indicating their categories as 'Divorcee'. However, at the time of document verification, they were disqualified on the ground that they did not possess a decree of divorce as on the last date of filing application forms. The respondents being aggrieved by the non-inclusion of the names in the final select list approached the Single Bench seeking a direction upon the appellants for appointment under the 'Divorcee' category.

The Single Bench allowed the writ petitions holding that the respondents belong to the Scheduled Tribe community and therefore, the provisions of the Hindu Marriage Act, 1955 are not applicable to them in light of Section 2(2) of the same thus, the condition of submitting a divorce decree, issued by a competent court cannot be fastened upon them. The appellants were directed to include the name of the respondents in the select list based on the customary dissolution of marriage and provide them the appointment from the date candidates lower in merit were granted appointment if they are otherwise eligible.

It was submitted by the counsel for the appellants that a candidate who applies for a particular post under the 'Divorcee' category must be possessed of a decree of divorce on the last date of submission of the application form so as to make the candidate eligible for consideration against the post reserved for candidate belonging to said category. On the other hand, the counsel for the respondents submitted that the respondents belong to the Scheduled Tribe/Tribal Sub Plan Area where customary divorce is prevalent since time immemorial which is accepted as a valid process of marriage dissolution under the Hindu law.

The High Court relied upon the similar case of Rajasthan State Public Service Commission & Anr. vs. Reetu Kalasua & Anr.: D.B. S.A.W. No.1193/2014 in which it was held that a female candidate without having a decree of divorce cannot represent herself as a divorced woman.

The Court noted –

"It would be apposite to note here that Family Courts established under the Family Court Act, 1984 by virtue of Section 7 of the said Act have exclusive jurisdiction to deal with all issues of marriage and divorce without exception irrespective of the community, the parties belong to."

Thereafter, the Court observed –

"Admittedly, the respondents submitted application seeking appointment on advertised posts against the seats reserved for divorcee candidates. The decree of divorce issued by competent court was not possessed by the petitioners on the cut off date. The appointment in the divorcee category has been claimed on the ground of having obtained customary divorce and non application of Hindu Marriage Act, 1955 upon marriages and divorce amongst the members of Scheduled Tribe/Tribal Sub Plan communities."

The Court further held that "Candidates belonging to Scheduled Tribe/Tribal Sub Plan are not precluded from obtaining decree of divorce from the competent court having jurisdiction to decide the matrimonial disputes. Exemption from presenting decree of divorce, issued by competent court cannot be sought on the ground of customs prevalent in their communities. The customs/practices prevailing in a particular community cannot be allowed to supplement the terms and conditions of a recruitment process involving large number of candidates belonging to various caste, religion, faith and communities."

Accordingly, the Court allowed the appeals and set aside the earlier orders and judgments.

Cause Title - The Secretary, Rajasthan Public Service Commission, Ajmer v. Sangeeta Varhat

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