A Decree Of Divorce Is Essential To Avail Govt. Job Reservation Under 'Divorcee Female' Category: Rajasthan High Court

The Rajasthan High Court has observed that a decree of divorce is essential for consideration of candidature for appointment against the quota of divorcees and that exemption from presenting such a decree cannot be sought on the ground of customs prevalent in a particular community.

With this, the bench of Justice Sandeep Mehta and Justice Kuldeep Mathur clarified that the claim of divorce on the basis of social practice in public recruitment is not valid and that a decree of divorce is mandatory for a woman who wishes to avail the benefit of the quota reserved for divorced women in government service. 

The bench was essentially dealing with an intra-court appeal moved by the Rajasthan Public Service Commission challenging an order of the single judge.

Essentially, a bunch of writ petitions were filed before the Single Bench by some of the appellants belonging to the Scheduled Tribe community who had applied for a govenment post under the 'Divorcee Female' Category, however, their applications were rejected during document verification on the ground that they did not have a divorce decree from any court as on the last date of application.

It was their case that since they belong to the ST community, a customary divorce is prevalent in their society and therefore, they did not obtain a court decree. It was their further contention that they are eligible to apply under the reserved quota for divorced women in government service without obtaining such a decree as they are governed by the customs prevalent in their community. 

Single Judge allowed thier pleas and directed the State Public Service Commission to include the name of the respondents in the select list on the basis of customary dissolution of marriage and provide them appointment from the date candidates lower in merit were granted appointment, if they are otherwise eligible.

The Single Judge also observed that since the respondents belonged to Scheduled Tribe community, therefore, the provisions of Hindu Marriage Act, 1955 are not applicable upon them in light of Section 2(2) of Hindu Marriage Act, 1955 thus, the condition of submitting divorce decree, issued by a competent court cannot be fastened upon them.

Now, when the order was challenged before the division bench, which, at the outset, observed 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.

Further, opining that the candidature cannot be considered against said category in the absence of decree of divorce issued by the competent court, the Court observed thus while allowing the intra-court appeal of the RPSC:

"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. 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"

The Court also went ahead to hold High Court's judgment in the case Rajasthan Public Service Commission vs. Sunita Meena & Ors.: D.B. S.A.W. No.829/2017 to be 'per incuriam'.

In Sunita's case, a divison bench had upheld the direction passed by Single Judge in favour of the candidate-petitioner belonging to Meena community (Scheduled Tribe) directing the recruiting agency to consider the candidate a 'Divorcee' as per the customary laws while affording the petitioner-candidate an opportunity to obtain a declaration of dissolution of marriage from competent court.

In related news, the Rajasthan High Court earlier this year observed that there is nothing in law that permits a candidate to apply in the 'Divorcee Female' category in the expectancy that a divorce decree would be granted by the Court.

A division bench of Justice Vinod Kumar Bharwani and Justice Sandeep Mehta, observed,

"For a person, applying in the said category, the status of being divorced was imperative. There is nothing in law which can permit a candidate to apply in the said category in the expectancy that a decree would be granted".

Case title - The Secretary, Rajasthan Public Service Commission and another v. Sangeeta Varhat and others [D.B. Special Appeal (Writ) No.72/2022]

Case Citation: 2022 LiveLaw (Raj) 255

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