Calcutta High Court (Appellete Side)
Sonali Hatua Giri vs Union Of India And Others on 7 April, 2021
04
07.04.2021
WPA 13806 of 2019
(Via Video Conference)
Sonali Hatua Giri
Vs.
Union of India and others
Mr. Sankar Nath Mukherjee,
Mr. Niraj Gupta,
Mr. Priyabrata Shah,
Mr. Aditya Biswas
...for the petitioner
Mr. Y. J. DAstoor,
Mr. Rudraman Bhattacharya,
Mr. Anuran Samanta
...for the Union of India
The challenge presently under consideration is
to the vires of Clause 5.2.5 of the Guidelines for
Disbursement of Central Samman Pensions to be
followed by Authorized Public Sector Banks issued by
the Ministry of Home Affairs, FFR division. The said
Scheme is for disbursement of pension to freedom
fighters under the Central Samman Pension Scheme.
The guidelines-in-question provide the modalities of
such disbursement.
The petitioner is the daughter of a deceased
freedom fighter, who had been getting pension under
the said Scheme for the Swantrata Sainik Samman
Pension till his demise on December 4, 2012. The
petitioner was married but subsequently got a decree
of divorce on March 19, 1999 and has since been
2
residing at her paternal house along with her son and
was dependent on her father since she had foregone
her right of alimony from her husband.
The petitioner submits that after the demise of
her father, her widowed mother also applied for grant
of such pension in her favour. However, such
representation was kept pending for an inordinately
long time and ultimately the mother of the petitioner
died on February 18, 2019 as well, leaving behind her
son and daughter, that is, the writ petitioner.
Subsequently, the petitioner also made a
representation before respondent no.5 requesting for
disbursal of family pension in her favour as a
dependent daughter. However, such request has not
yet been considered till date.
At the outset, the challenge to the vires of
Clause 5.2.5 is required to be considered, since the
decision on the same will affect the outcome of the
writ petition otherwise. The relevant provision in the
Guidelines is found in Clause 5.2 thereof, which deals
with transfer of pension to spouse(s)/daughter(s).
Clause 5.2.3 stipulates that the spouse/daughter
must fulfil the twin conditions of being "unmarried"
and "having no independent source of income".
Clause 5.2.5, on the other hand, stipulates that
widowed/divorced daughter is not eligible for
Samman pension.
Learned counsel for the petitioner contends
that Clause 5.2.5 excludes widowed/divorced
daughters from entitlement, although "unmarried"
daughters have been included. Such discretion is
without any reasonable basis and violates Article 14
as well as Article 39 of the Constitution of India.
Learned counsel for respondent no.1 argues
that there are intelligible differentia as to why
widowed and/or divorced daughters are excluded
from the benefit of the Scheme. It is submitted that
there is a presumption of constitutionality and the
validity of a legislation can only be struck down when
the classification is unreasonable and arbitrary. For
such proposition, learned counsel relies on Municipal
committee, Patiala Vs. Model town Residents
Association, reported at (2007) 8 SCC 669, wherein it
was held that there is a presumption of
constitutionality and in testing the validity of the law,
the Court can take into consideration matters of
common knowledge and, at the same time, the Court
must presume that the legislature understands and
correctly appreciates the needs of its own people.
While elaborating the intelligible differentia of
excluding widowed and/or divorced daughters from
the benefit of the Scheme, learned counsel argues
that, as far as widows are concerned, under Section 8
of the Hindu Succession Act, 1956, a widow is a Class
I heir, including the widow of a pre-deceased son. As
such, a widow is entitled to inherit the properties of
the husband and/or the father-in-law. In the event
the husband does not have any property and the
father-in-law is alive and the widow is unable to
maintain herself, under Sections 19 of the Hindu
Adoption and Maintenance Act, 1956, she is entitled
to maintenance as a widowed daughter-in-law.
Section 2 of the Act clarifies that this would also cover
Buddhists, Jains and Sikhs.
As far as a Muslim widow is concerned, she is
entitled to dower which is recovered by wife or widow
or divorcee or her heirs if she is dead.
Under the Indian Succession Act, 1925, Section
32 provides that the property of a husband devolves
on the widow. Such provision covers all persons who
are not Hindus, Mohammedans, Buddhists, Sikhs or
Jains. There is specific provision in Sections 50 and
51 of the said Act regarding property of the deceased
devolving on the widow as far as Parsis are concerned.
Regarding divorced women, it is submitted that
Hindu women are entitled to permanent alimony from
the husband under Section 25 of the Hindu Marriage
Act, which also include Buddhists, Jains and Sikhs
apart from Hindus.
Under Section 3(1)(a), read with Section 4, of
the Muslim Women (Protection of Rights on Divorce)
Act, 1986, a divorced Muslim woman can claim
maintenance even after expiry of iddat period.
A divorced Parsi woman, it is submitted, is
entitled to permanent alimony and maintenance from
the husband under Section 40 of the Parsi Marriage
and Divorce Act, 1936.
A divorced Christian woman, on the other
hand, is entitled to permanent alimony and
maintenance from the husband under Section 37 of
the Indian Divorce Act, 1969.
As such, 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.
That apart, it is argued that the object of the
pension Scheme is to provide subsistence allowance
only to the dependents of the freedom fighters who are
otherwise not entitled to get the benefit from any
other person.
By placing reliance on an unreported Order
dated July 29, 2016 passed by the Punjab and
Haryana High Court in Letters Patent Appeal No.171
of 2015 (Khajani Devi Vs. Union of India and others),
learned counsel submits that the benefit of the
Scheme is admissible to a divorced daughter. A two-
Judge Bench of the Supreme Court, by an Order
dated September 27, 2019 passed in SLP (C) No.
02353 of 2019 (Union of India and others Vs. Khajani
Devi) was pleased not to interfere with the same on
the view that the order adopts a progressive and
socialist constructive approach.
However, the Himachal Pradesh High Court had
taken a contrary view in an Order dated July 18,
2019 passed in CWP No.1504 of 2019 (Tulsi Devi Vs.
Union of India and another). A three-Judge Bench of
the Supreme Court, by an Order dated May 28, 2020
passed in an SLP arising out of Diary No.7497 of 2020
(Tulsi Devi Vs. Union of India and another) was pleased
to issue a notice in the matter. Such issue is, thus,
pending adjudication before the Supreme Court and it
is argued that judicial decorum warrants that since
the Supreme Court is in seisin of the mater, this
Court should not take any view at this stage.
Learned counsel for the petitioner contends in
reply that in Tulsi Devi (supra), the Himachal Pradesh
High Court did not consider the judgment of Khajani
Devi (supra) rendered by the Punjab and Haryana
High Court, which was upheld by the Supreme Court
in a Special Petition, bearing No.17706 of 2017.
Thus, it is submitted that the law, as it stands at
present, is that divorced daughters are also entitled to
the benefit of the scheme.
As regards the contention of respondent no.1
that judicial decorum ought to constrain the hands of
this Court due to pendency of a similar issue before
the Supreme court, such contention is not acceptable,
at least in the present case, since mere pendency of
challenge in a different case cannot have any direct
bearing on the adjudication at hand. That apart, in
view of the implicit urgency involved, since the
petitioner has no income to sustain herself and her
minor son without any income, the matter pertains to
her livelihood and cannot be stalled indefinitely for
the adjudication of the matter pending before the
Supreme Court.
Although the dismissal of a Special Leave
Petition by the Supreme Court does not tantamount
to affirmance of an order on merits, which would lend
binding force to such order as the law of the land is
declared by the Supreme Court, the Punjab and
Haryana High Court had taken a clear view that
divorced daughters are also entitled to benefit under
the Scheme-in-question.
The view taken by the Himachal Pradesh High
Court did not lay down any ratio on the vires of
Clause 5.2.5 and/or decide the question which has
fallen for consideration before this Court. In the said
case, being Tulsi Devi (supra), the Himachal Pradesh
High Court held that the "Swantrata Sainik Samman
Yojana" has been launched as a mark of respect to
the freedom fighters whereas in the case of armed
force personnel or the Central/State Government
pensionaries/employees, the pension is not a
'bounty', but a property. Thus, a line of distinction
was drawn between such pensions and the pension
payable to freedom fighters and their heirs.
With utmost respect, even without going into
the question of parity with other pension schemes, the
view of the Punjab and Haryana High Court is more
applicable in the present case. In the said judgment,
it was held that it would be a travesty to exclude a
divorced daughter when an unmarried daughter finds
mention in the list of eligible dependents. It was
further held that there would be no rationality to the
reason for such distinction, particularly when the
divorced daughter is the sole eligible dependent and
qualifies for the benefit. It was held that a beneficial
scheme such as the one in hand should not be
construed on a strict interpretation, which tends to
disapprove the claims of the benefit, to result in
virtual frustration or negation of the laudable motive
of the scheme itself.
In my view, the ratio laid down by the Punjab
and Haryana High Court in Khajani Devi (supra) is
also applicable in the present context and appeals to
the judicial conscience on a higher footing than the
Himachal Pradesh report.
A combined reading of Article 14 of the
Constitution of India, which is a fundamental right of
equality before the law, and Article 39(a), ensures that
the State is to direct its policy towards securing such
end. Clause (d) of Article 39 also ensures that there is
equal pay for equal work for both men and women.
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 Clause 5.2.3 having conferred
eligibility on spouses/daughters who are unmarried
and have no independent source of income, Clause
5.2.5 of the guidelines is ex facie irrational, since it
excludes widowed/divorced daughters from the
eligibility.
The scheme was formulated as "a token of
honour by a grateful nation to the honorable freedom
fighters and their dependents" as per its own
language.
It is not necessary that the term 'dependents' as
used in the scheme has to be in consonance with
Succession Acts of various religious communities.
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.
A bare perusal of Clause 5.2.3 of the guidelines-
in-question indicates that there is already a safeguard
against abuse of the provisions of the scheme by
including the yardstick, "having no independent
source of income" as a condition of eligibility.
Such qualification circumscribes the eligibility
of unmarried daughters.
Since, as per the arguments of the respondent
no.1, an analogy has been sought to be drawn with
the respective Matrimonial Laws of different
communities, we ought to look into the efficacy of
such remedies on the touchstone of efficacy.
All the recourses and legal remedies open to
divorced and widowed daughters require long-drawn
litigation and mere rights available in the statute
books. In order to get the fruit of such litigation, a
widowed/divorced daughter has to wait till the end of
litigation. The amount actually granted to such
daughter by the court of law also acquires relevance
vis-à-vis her subsistence requirements. 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.
Since the rider, "having no independent source
of income" already qualifies unmarried daughters in
Clause 5.2.3 of the guidelines, such test acts as a
sufficient safeguard to prevent abuse of the pension
scheme by widowed/divorced daughters of the
freedom fighter who otherwise have an independent
source of income, be it from alimony/maintenance or
from some other source. On the other hand, it may
very well be that a spinster daughter of the freedom
fighter has an independent income of her own, even if
she does not have legal remedy as available to the
widowed/divorced daughters from their matrimonial
family.
Since the aforesaid safeguard is already
existing, 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.
Having or not having income is undoubtedly an
intelligible differential, which can easily be
incorporated if widowed/divorced daughters are also
brought within the purview of 'unmarried' daughters.
Thus, as in the event an unmarried daughter who
has no income is ineligible for the pension,
widowed/divorced daughters stand on a similar
footing as daughters of the deceased and shall not be
eligible anyway if they have any independent source of
income, which can very well be alimony or
maintenance as well.
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.
In view of the above discussions, the
preliminary point is decided by declaring Clause 5.2.5
of the Guidelines for Disbursement of Central
Samman Pensions to be followed by Authorized Public
Sector Banks, issued by the Ministry of Home Affairs,
FFR Division vide Memo No.45/03/2014 - FF(P) ultra
vires, being violative of Article 14 of the Constitution
of India.
The expression "unmarried" as used in Clause
5.2.3 of the said Guidelines 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.
Further orders on the merits of the writ petition
shall be passed on the next returnable date.
(Sabyasachi Bhattacharyya, J.)
