Mamta Chugh vs State Of Rajasthan And Ors

This writ petition has been filed by the petitioner aggrieved against rejection of her candidature as divorcee candidate.

It is, inter alia, indicated in the writ petition that pursuant to the advertisement dated 31.07.2018 the petitioner applied for the post of Teacher Gr.-III, Level-II subject Hindi as a divorcee. Based on the cut off declared by the respondents, as the petitioner had obtained higher marks, she was provisionally selected. However, during the course of document verification, as the petitioner produced only a certificate dated 23.08.2018 (Annexure-P/2), the same was not accepted by the authorities and her candidature has been rejected.

It is submitted by learned counsel for the petitioner that the petitioner was deserted by her husband; she filed proceedings under Section 13 of the Hindu Marriage Act, 1955 ('the Act') before the competent civil court on 05.08.2017 seeking dissolution of her marriage; by order dated 23.08.2018 the authority under the Rajasthan Social Security Old age, Widow, Deserted and Divorcee Pension Rules, 2013 ('the Rules of 2013') issued certificate to the petitioner certifying her status as deserted.

During the course of document verification when the petitioner produced the certificate (Annexure-P/2), supporting her candidature as divorcee, the respondents have wrongly rejected the candidature of the petitioner.

With reference to the advertisement dated 31.07.2018 it is submitted that the requirement of Clarification-ix besides the decree of divorce from the competent authority, the petitioner could have produced 'any order' in this regard and once the petitioner has produced order under the Rules of 2013 (Annexure-P/2), there was no reason for the respondents to reject the candidature of the petitioner.

Further submissions have been made that now by judgment dated 18.12.2018, based on compromise between the petitioner and her husband, a decree for divorce has also been granted by the competent Civil Court and, therefore, the action of the respondents in this regard deserves to be quashed and set aside.

I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.

A perusal of the record indicates that petitioner filed her application pursuant to the advertisement dated 31.07.2018 on 24.08.2018 indicating her marital status as 'divorcee', though on the said date the proceedings initiated by the petitioner seeking divorce from her husband were still pending before the competent Civil Court.

It appears from the decree dated 18.12.2018 (part of Annexure-P/3), in the application of settlement, which appears to have been filed before the competent Civil Court, which led to passing of the decree dated 18.12.2018, it was claimed that on 15.08.2018 there has been a divorce between the parties by mutual consent, however, the Court ordered for dissolution of the marriage by the decree dated 18.12.2018.

This Court in Abhilasha Rathore v. State of Rajasthan & Ors. : S.B.C.W.P. No. 18661/2018, decided on 06.12.2018 in a similar nature proceedings, wherein, a petition was filed under Section 13B of the Act and the decree of divorce was granted after the cut off date, inter alia, laid down as under:-

"Admittedly, the petitioner applied for the post pursuant to the advertisement on 15/8/2018 and claimed her status as 'divorcee' and admittedly the decree of divorce has been granted by the Family Court, Rajsamand on 5/9/2018, wherein, it is specifically indicated that w.e.f. 5/9/2018 the marriage was being dissolved.

The provisions of Section 13B (2) of the Act, 1955 provides as under:

"13B. Divorce by mutual consent.-

(1)- ....................................................

(2)- On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

A bare look at the above provision reveals that it is only from the date of decree by the competent court that the marriage would dissolve between the parties and admittedly the said decree was passed by the court on 5/9/2018. The stipulation in the advertisement regarding availability of decree before the last date of filing of the application is quite clear, inasmuch as, the candidate to call herself a divorcee, the candidate must possess a decree from the competent court as otherwise she cannot claim herself as divorcee and therefore, as per the stipulation made in this regard, the petitioner was not eligible to apply as a divorcee.

Further, the submissions made that the petitioner was living separately is of no consequence as the requirement is of a candidate being divorced and not otherwise. In fact, on the last date of filling up the application, the petitioner was not a divorcee, as such, the application filled by the petitioner was based on misrepresentation of facts.

In view of the above discussion, the rejection of the petitioner's candidature by the respondents cannot be faulted."

In view of express provisions of Section 13(1) of the Act where a marriage can only be dissolved by a decree of divorce similar view was taken by this Court qua decree of divorce in proceedings initiated under Section 13(1) of the Act in Sunita Rani v. State & Anr. : S.B.C.W.P. No. 15905/2018, decided on 04.01.2019.

In view of the law laid down by this Court in Abhilasha Rathore (supra) and Sunita Rani (supra) no case is made out.

So far as the submissions made by learned counsel for the petitioner based on the Rules of 2013 are concerned, under the said Rules apparently the petitioner has been issued a certificate certifying her status as a 'deserted lady', however, the status of a deserted lady cannot be equated with that of a divorcee.

In so far as the explanation under Rule 4 of the Rules of 2013 is concerned, wherein the use of word 'deserted' in Rule 4 has taken in its sweep all the women who are divorced, judicially separated, qua whom proceedings for dissolution of marriage are pending, therefore, merely because the explanation as indicated in the Rules takes all the indicated women in its sweep, the petitioner cannot claim herself to be a divorcee merely based on the certificate Annexure-P/2.

From the above, it is apparent that on the cut off date the marriage of the petitioner was subsisting and, therefore, she could not have applied claiming her status as a 'Divorcee'.

In view of the above discussion, the action of the respondents in rejecting the candidature of the petitioner cannot be faulted. The writ petition filed by the petitioner has no substance and the same is, therefore, dismissed.