This article is written by Arya Mittal from Hidayatullah National Law University. The article deals with the recent case of Sonali Hatua Giri v. Union of India & Ors. wherein the petitioner was denied pension since she was divorced.
Table of Contents
Introduction
The preamble states that equality of status and opportunity be given to all. Further, Article 14 of the Indian Constitution deals with equality before law. It states that no person shall be denied equality before the law or equal protection of laws.
The provision has been debated ever since the Indian Constitution has been enforced. Different concepts such as reasonable classification, non-arbitrariness, etc. have evolved with time due to the active role of the judiciary. But such concepts have also given rise to conflicts. One such conflict arose in the case of Sonali Hatua Giri v. Union of India & Ors. (2021) which is the scope of the present article.
Facts of the case
The case relates to the daughter of a deceased freedom fighter. The freedom fighter was entitled to a pension under the Swatantrata Sainik Samman Scheme which was provided to him till his death on December 04, 2012. Thereafter, the petitioner’s mother (wife of deceased freedom fighter) applied for the pension, and the application was kept waiting for a long time till she finally died on February 18, 2019. The petitioner got a decree for divorce on March 19, 1999, after which she and her son had been living with her parents and had no independent income.
Moreover, she had foregone alimony and maintenance at the time of divorce and was dependent on her father. After the death of the mother, the petitioner also made a request for the grant of pension in her favor, however, the same was still pending. Meanwhile, the petitioner has filed a writ petition (the current case) in the Calcutta High Court to challenge the constitutionality of Clause 5.2.5 of Guidelines for Disbursement of Central Samman Pensions (hereinafter referred to as “Guidelines”) which excludes widowed/divorced daughters from the purview of unmarried daughters and make them ineligible for claiming the pension.
Issues raised
Whether Clause 5.2.5 of Guidelines for Disbursement of Central Samman Pensions is ultra vires of the Indian Constitution since it violates Article 14 of the Constitution?
Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions
Clause 5.2.5 of the Guidelines states that widowed/divorced daughters are ineligible for claiming the pension. This has to be read with Clause 5.2.3 of the Guidelines which states that the spouse or daughter should satisfy twin conditions of being unmarried and having no independent source of income.
Contentions of Parties
Petitioner
- The petitioner contended that though the Guidelines included unmarried daughters as beneficiaries of pension but excluded widowed/divorced daughters which is without any reasonable basis and is therefore violative of Article 14 and Article 39 of the Indian Constitution.
- Petitioner relied on an order passed by the Punjab and Haryana High Court in the case of Khajani Devi v. Union of India and others (2016) wherein the Court held that pension could be availed by divorced daughter. This was reaffirmed by a two-Judge Bench of the Supreme Court considering it to be a reformative step.
- It also contended that Himachal Pradesh High Court failed to consider the order passed in Khajani Devi when respondents posed a contrary view.
Respondent
- The respondent contended that courts must presume the constitutionality of a law and must presume that the legislature understands the needs of people and forms any law for the benefit of the common people.
- While contending on reasonable classification, the respondents contended that the Guidelines sought an intelligible differentia between unmarried daughters and widowed/divorced daughters.
- As regards the widowed daughters, the respondents went on to explain how the personal laws of different religions have provisioned some rights for the widow. As per Section 8 of the Hindu Succession Act, 1956, a Hindu/Jain/Sikh/Buddhist widow can inherit property from her husband or father-in-law. In case she is unable to maintain herself, after the death of her husband, she can even seek maintenance from her father-in-law under Sections 19 of the Hindu Adoption and Maintenance Act, 1956. Muslim women are entitled to dower. All the widows apart from the above-mentioned religions are entitled to get the property of the husband as per Section 32 of the Indian Succession Act, 1925.
- As regards the divorced daughters, Hindu/Jain/Sikh/Buddhist women are entitled to permanent alimony from their husbands in case of divorce as per Section 25 of the Hindu Marriage Act, 1955. A divorced Muslim woman can claim maintenance even after iddat according to Section 3(1)(a) and Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Parsi and Christian women are also entitled to permanent alimony and maintenance under Section 40 of the Parsi Marriage and Divorce Act, 1936 and Section 37 of the Indian Divorce Act, 1869 respectively.
- They further contended that from the two above-mentioned conditions, it is clear that there exists a difference between unmarried daughters and widowed and divorced daughters. The latter are entitled to certain income from various beneficial legislations in the country while the former has not been provided with any such right. Thus, there exists an intelligible differentia in the scheme for not providing pension to divorced/widowed daughters.
- The respondents relied on the Tulsi Devi v. Union of India and another (2019) wherein the Himachal Pradesh High Court posed a contrary view. However, the case is currently pending to be adjudged by a three-Judge Bench of the Supreme Court.
Observations of the Court
- The Court did not rely on the order of Tulsi Devi, since it was still pending adjudication by the Supreme Court. It relied on the order passed by Punjab and Haryana High Court in Khajni Devi which was reaffirmed by the Supreme Court holding it to be a progressive step.
- Reiterating the ruling of Punjab and Haryana High Court, the Calcutta High Court held that it would be a travesty if a widowed/divorced daughter is excluded from the scheme since there is no intelligible differentia.
- Petitioner, being the sole eligible dependent, having no other source of income, should be entitled to claim pension and be kept at an equal pedestal as that of unmarried daughters.
- It further held that the scheme had been launched as a mark of respect for the freedom fighters and a strict interpretation of such a beneficial scheme would disqualify the beneficiaries, negating the whole objective of the scheme.
- Excluding a widowed/divorced daughter from the scheme would be violative of Article 14 and Article 39 of the Constitution of India.
- Even in Hindu laws on which the respondents have relied, there is no differentiation between an unmarried daughter and a widowed/divorced daughter.
- Though different personal laws provide legal remedies by way of maintenance and alimony, it is not unknown that such remedies take an unusually long time and in between, it is not possible for a dependent daughter to sustain her livelihood.
- The scheme already makes it a condition that the beneficiary should not have any independent source of income which ensures that the scheme is not abused by a person who is already financially independent. Thus, making such a classification was not required since widowed/divorced daughters are also unmarried and have the same marital status.
- The blanket exclusion of widowed/divorced daughters is highly unjust and without any reasonable classification and therefore, the Guidelines have been held ultra vires of Article 14 of the Indian Constitution. Hence, unmarried daughters as stated in Clause 5.2.3 of the Guidelines shall also include widowed/divorced daughters.
Landmark Supreme Court Judgments on Reasonable Classification
State of West Bengal. v. Anwar Ali Sarkar (1952)
Anwar Ali Sarkar is a celebrated judgment of the Supreme Court of India which laid down the test for making reasonable classification in accordance with Article 14. It stated that the classification must not be arbitrary but must be rational. It stated that qualities or characteristics of people in one group must not be present in the other, which keeps them in a separate group. It stated that two conditions need to be fulfilled for classification to be held reasonable. These are:
- Firstly, the classification must be sought on intelligible differentia which differentiates one group from the another.
- Secondly, the differentiation must have a rational nexus with the object sought to be achieved by the Act.
In absence of any of the conditions, such classification would be held to be arbitrary and thus, it would be violative of Article 14 of the Indian Constitution. A similar approach was taken by the Supreme Court even in the case of Ram Krishna Dalmia v. S.R. Tendolkar (1958).
Ramchand Jagdish Chand v. Union of India (1963)
In this case, the Supreme Court held that there is always a presumption in favor of the constitutionality of a law. Any person who believes that they have been subjected to unequal treatment needs to prove that they have been similarly situated with people from whom they are differentiated without any reasonable basis and such differentiation is unjust.
Applying it to the current case reveals that the petitioner had been similarly situated since she did not have any independent source of income and was the daughter of the freedom fighter. However, the latter part dealing with widowed/divorced daughters created an unreasonable classification which has been pleaded by the petitioner.
Subramanian Swamy v. CBI (2014)
The question of justiciability of classification was once again raised in Subramaniam Swamy. The Court held that if the object of the legislation is itself discriminatory, then it is immaterial whether the classification has a reasonable nexus with the object.
Moreover, each case of equality needs to be separately examined and not by applying a general rule. To elaborate, the basis of classification may be based on geographical features, age, professional qualifications, etc. but it should be reasonable and not discriminatory otherwise it will be violative of Article 14.
Conclusion
The step taken by Hon’ble Justice Sabyasachi Bhattacharyya, in the case of Sonali Hatua Giri v. Union of India & Ors., is a progressive step for the Indian society where a widow or divorced woman is still portrayed negatively in many parts of the country.
The Guidelines were violative of Article 14 as it did not have intelligible differentia while excluding widowed and divorced daughters from the purview of unmarried daughters in order to claim the pension.
Any law which does not make a reasonable classification should be struck off for being unconstitutional, which seeks to promote equality among all. Lastly, the role of the Indian judiciary is applaudable in safeguarding the rights of people by declaring the correct proposition of law.
References
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
