Breaking: Freedom Fighter's Widowed/Divorced Daughters Having No Income Entitled To His Pension, Blanket Exclusion Violates Art.14 :Calcutta High Court

The Calcutta High Court on Wednesday declared Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions followed by Authorized Public Sector Banks, issued by the Ministry of Home Affairs, as being violative of Art. 14 of the Constitution of India after observing that the "blanket exclusion of widowed/divorced daughters, including even those who do not have any personal income in lieu of maintenance or otherwise, is patently de hors Article 14 of the Constitution of India, which enshrines the guarantee of equality to all citizens".

A single judge bench comprising of Justice Sabyasachi Bhattacharyya observed thus:

"..The blanket exclusion of widowed/divorced daughters, including even those who do not have any personal income in lieu of maintenance or otherwise, is patently de hors Article 14 of the Constitution of India, which enshrines the guarantee of equality to all citizens. In the present case, the classification is worse than gender bias, since unmarried daughters have been included within the scheme but widowed/divorced daughters who stand on the same footing, having no independent source of income, have been excluded. Even going by the Succession Acts, daughters, irrespective of qualification, are entitled to the property of the deceased as heirs. Hence, the mere existence of a right in a statute book to get maintenance from the matrimonial family is not at all sufficient to meet the financial requirements of those widowed/divorced daughters who do not have any income."

The observation came in a petition challenging the vires of Clause 5.2.5 of the Scheme providing for disbursement of pension to freedom fighters under Central Samman Pension Scheme.

The facts of the case are that the petitioner, being the daughter of a deceased freedom fighter, was getting the pension under the Scheme till his demise on December 4, 2012. A decree of divorce was obtained by the petitioner on March 19, 1999 and she had been residing at her paternal home along with her son ever since. Being a divorced woman, she was dependent on her father since she had foregone the right of her alimony from her husband.

It was the case of the petitioner that after the demise of her father, her widowed mother had applied for the grant of pension however the representation was kept pending for a long time. Her mother subsequently died in 2019 leavng behind the petitioner and her son alone.

According to Clause 5.2.5 of the said Scheme, it has been provided that "Widowed/divorced daughter is not eligible for samman pension". Clause 5.2.3 stipulates that in order to transfer the pension to the spouse or daughter, a twin condition has to be fulfilled i.e. of being unmarried and having no independent source of income.

It was therefore submitted by the petitioner that Clause 5.2.5 excludes widowed/divorced daughters from entitlement, although "unmarried" daughters have been included. According to the petitioner, such discretion is without any reasonable basis and violates Article 14 as well as Article 39 of the Constitution of India.

According to the Union of India, it was submitted that a widowed and a divorcee daughter are entitled to maintain themselves as they have been provided sufficient benefits under various statutes, which are not available to an unmarried daughter. As such, the classification of widowed and divorcee daughters on the one hand and unmarried daughters on the other is reasonable.

Observations of the Court

The Court observed that a conjoint reading of Art. 14 and 39(a) ensures that the State is to direct its policy towards securing such end. Observing that Art. 39(d) also ensures that there is equal pay for equal work for both women and men, the Court held:

"Although Article 39 is a Directive Principle of State Policy, not directly enforceable in law, the fundamental rights of the citizens of India ought to be considered in the context of the directive principles to lend teeth to the intentions of the framers of the Constitution of India."

In view of the said observation, the Court observed that Clause 5.2.5 is "irrational since it excludes widowed/divorced daughters from the eligibility."

Observing that the object of the Scheme was to be formulated as "a token of honour by a grateful nation to the honorable freedom fighters and their dependents", it was not necessary that the term "dependents" under the Scheme has to be necessarily be in consonance of other laws such as Succession Acts of various religious communities. The Court observed thus:

"However, even if we take into consideration the Acts in-question, no line of distinction has been drawn between divorced and unmarried daughters. For example, if we read Sections 8 and 9, in conjunction with the Class I of the Schedule to the Hindu Succession Act, 1956, it will be evident that the Class I heirs include not only the widow but also the daughter of the deceased. Hence, no line of distinction has been drawn between "unmarried' and "divorced" daughters. A criterion which defies logic cannot be "intelligible" in the true sense of the term."

Furthermore, the Court observed thus:

"Legal provisions cannot meet the pangs of hunger and/or urgent necessity of sustenance of human beings. As stipulated in case of unmarried daughters, widowed/divorced daughters also qualify as unmarried but have been excluded from the pension scheme. In the event Clause 5.2.5 was not there, the expression 'unmarried' could very well include within its purview widowed/divorced daughters of the pension holders as well, since their marital status would also be on an equal footing with unmarried daughters. The mere possibility of a legal remedy, or an order of court granting meager amount as maintenance is not adequate to meet the necessities of widowed/divorced daughters but they may also be dependents of their father, being the freedom fighter, in the event they do not/cannot opt for taking recourse to legal remedies and do not have income sufficient to maintain themselves."

In view of the aforesaid observations, the Court also held that the blanket exclusion of widowed/divorced daughters, including even those who do not have any personal income in lieu of maintenance or otherwise, is patently de hors Article 14. While observing that unmarried daughters have been included within the scheme but widowed/divorced daughters who stand on the same footing, having no independent source of income, have been excluded, the Court called such a classification as "worse than gender bias".

"However, as far as daughters having no independent source of income are concerned, widowed/divorced daughters stand on an equal footing with a spinster daughter as heirs of the deceased freedom fighter. The marital status of all of them is "unmarried". Thus, the criterion of exclusion of widowed/divorced daughters, as sought to be projected by respondent no.1, is untenable in the eye of law. As such, Clause 5.2.5 is patently violative of Article 14 of the Constitution of India, which ensures equality among people standing on the same footing, in the absence of reasonable classification or intelligible differentia." The Court held.

In view of this, the Court declared Clause 5.2.5 of the said guidelines as ultra vires by holding that Clause 5.2.3 shall also include widowed/divorced daughters as eligible for the Sainik Samman Scheme-in-question, provided they satisfy the other test of having no independent source of income.

Title: Sonali Hatua Giri v. Union of India & Ors.

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