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Synopsis

The Rajasthan High Court while deciding on the essentiality of a decree of divorce has held that for a female candidate to claim reservation against the reserved quota for divorcee, a decree of divorce granted by a competent court is a sinq qua non.

“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”, a bench of Justices Kuldeep Mathur and Sandeep Mehta opined.

In the pertinent matter, it was the case of the respondent (candidates), that they belonged to Scheduled Tribe/Tribal Sub Plan Area and had applied for posts under ‘Divorcee’ category. The respondents however, at the time of document verification were disqualified on the count that they did not possess a decree of divorce. Being aggrieved by the non-inclusion of the names in the final select list, the respondents approached the Single Bench.

It was submitted by the Commission that for applying under ‘Divorcee’ category, a candidate must have a decree of divorcee for eligibility for the post. It was further submitted that the customary practices for divorce may be prevalent in tribal communities but that would be confined to social purposes only.

However, the counsel for the candidates contended that in Scheduled Tribe/Tribal Sub Plan Area where customary divorce is prevalent since time immemorial is an accepted as a valid process of marriage dissolution in Hindu Laws. Therefore, since it was established that divorce has been obtained as per customs, the denial of appointment on the basis of decree of divorce wass not legitimate, he argued.

The single judge bench had directed the Commission to include the name of the candidates in the selection list as the provisions of Hindu Marriage Act, 1955 were not applicable upon them. Thus the condition of a mandatory divorce decree under Section 2(2) of Hindu Marriage Act, 1955 did not apply to them, the single judge had held.

Now, the question in intra-appeal against the order of the single judge bench was to whether an applicant who has taken customary divorce is entitled to apply in the category of ‘Divorcee Female’, without presenting decree of divorce granted by competent civil court before the cutoff date, as stipulated in the terms and conditions governing the recruitment process.

The Court while answering in negation was of the opinion that the judgment was rendered in ignorance of previous decisions of the Apex Court and co-ordinate Bench of the High Court on the controversy dealing with the cutoff date by reference to which eligibility requirements must be satisfied by a candidate seeking public employment.

Case Title: The Secretary, Rajasthan Public Service Commission, Ajmer vs. Sangeeta Varhat