Usage Of 'Separated/Divorced' Can't Be Restricted To Only Those With A Judicial Separation Decree: Delhi High Court

Justice Sanjeev Narula observed that a narrow interpretation of a Circular dated 20 July 2020 which provides for applications to be considered on behalf of separated/ divorced/ single women for issuance of caste certificates in favour of their children, would frustrate its very purpose of accommodating children whose paternal ties are severed without a legal order.

“The expression “separated/ divorced/ single women” cannot be construed narrowly to deprive the Petitioner of equitable relief. Such an interpretation would frustrate the very purpose of the circulars meant to accommodate children whose paternal ties are severed de facto, if not de jure. To insist on a judicial separation order or a divorce decree is to insist on form over substance, ignoring the lived truth of a deserted family unit. If the child of a separated woman is entitled to be treated as a member of the Scheduled Caste community, the Court finds no justification for limiting the definition of a “separated woman” to one who possesses a decree of judicial separation” the Court said.

The minor petitioner's father had abandoned him and his mother in 2009. In 2011, the father sought a divorce but eventually stopped participating in the proceedings. Subsequently, the divorce petition came to be dismissed in default.

The minor petitioner stated that despite several attempts to secure a caste certificate, the State refused his applications on the ground that the request had to be initiated by the father.

Relying on the Circular dated 20 July, 2020, the petitioner's mother then filed an application. However, the State once again refused to issue the caste certificate on the ground that the application could only be accepted on behalf of the mother when she is legally divorced or separated.

The State contended that as there was no decree of divorce or separation of the petitioner's father and so the caste certificate cannot be issued.

Here, the Court observed that the facts of the case established that the petitioner's mother was deserted by her husband 15 years ago and that she was solely responsible for raising the petitioner during this period.

On the State's argument of the absence of a decree of divorce or separation, the Court stated that the expression 'separated/ divorced/ single women' cannot be interpreted narrowly.

Remarking that children should not be made to suffer in such cases, the Court said “Children should not be penalized because their father chose abandonment over legal finality. In cases where women from Scheduled Caste community have been separated on account of desertion or abandonment by their husbands, their children cannot be made to suffer simply because their fathers have failed to provide them support and recognition.”

The Court thus rejected the State's contentions to deny the caste certificate to the petitioner because his mother did not have a divorce or separation order.

The Court asked the petitioner to submit a fresh representation to the State, which would examine the application on merits. It stated that the State should not reject the application only on the ground that the petitioner's mother does not have a formal decree of divorce or separation.

“Within two weeks of receiving this representation, the Respondent shall examine the Petitioner's case on its merits. In doing so, they shall not reject the application solely on the basis that the Petitioner's mother lacks a formal decree of divorce or judicial separation. Instead, they must consider the factual reality of a long-standing abandonment, which is tantamount, in every meaningful sense, to a separation.”

With these observations, the Court disposed of the petition.

Case title: Deep Minor Through Next Friend vs. Govt. Of NCT of Delhi (W.P.(C) 9141/2023)