Customary Divorce Without Court Decree Before Cut-Off Date Does Not Qualify for Divorcee Quota: Rajasthan High Court

Two women from Scheduled Tribe/Tribal Sub Plan Area communities applied for advertised posts in the ‘Divorcee’ category. At document verification they were disqualified because they did not hold a decree of divorce on the last date for applications, and were left out of the final select list (para 3). A Single Bench allowed their writ petitions: since Section 2(2) of the Hindu Marriage Act, 1955 keeps Scheduled Tribes outside that Act, the decree condition could not be fastened on them, and it directed their inclusion in the select list on the basis of customary dissolution of marriage (para 4). The Rajasthan Public Service Commission and the State filed intra-court appeals (paras 1, 5).

The question was whether a candidate with a customary divorce may apply as a ‘Divorcee Female’ without a civil-court decree obtained before the cut-off date (para 2). Relying on Ashok Kumar Sonkar and Dr. M.V. Nair, it noted that eligibility is judged on the cut-off date, which, absent a rule or a date in the advertisement, is the last date for applications (paras 8-9). In Reetu Kalasua a co-ordinate Bench had held that a woman without a decree cannot represent herself as divorced and cannot be treated as divorced without a competent court's declaration; Jagdish Prased and Parul Khurana took the same view (para 10). Family Courts have exclusive jurisdiction over marriage and divorce under Section 7 of the Family Courts Act, irrespective of community (para 12). The decree on the cut-off date is therefore sine qua non; a custom cannot supersede the recruitment terms, which give effect to Articles 14 and 16 (para 14). Scheduled Tribe candidates are free to obtain a decree, and community customs cannot supplement the terms of a recruitment open to candidates of every caste, religion and community (para 15). Sunita Meena, relied on by the candidates, was held per incuriam (paras 11, 16).