A single-judge bench of the Calcutta High Court consisting of Justice Sabyasachi Bhattacharyya has in the case of Sonali Hatua Giri v. Union of India & Ors., declared Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions, issued by the Ministry of Home Affairs, as being violative of Art. 14 of the Constitution of India. The Court further observed that 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.
Background of the case
The challenge presently under consideration was 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- the daughter of a deceased freedom fighter, was getting pension under the said Scheme for the Swatantrata Sainik Samman Pension till the demise of her father on December 4, 2012. The petitioner was married but subsequently got a decree of divorce on March 19, 1999 and has since been 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 submitted 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 for disbursal of family pension in her favour as a dependent daughter.
Case of the Petitioner
The learned counsel for the petitioner contended that Clause 5.2.5 excludes widowed/ divorced daughters from entitlement, although “unmarried” daughters have been included. It was further contended that such discretion was without any reasonable basis and violates Article 14 as well as Article 39 of the Constitution of India.
Case of the Respondent
The Counsel for respondent no.1 argued that there was intelligible differentia as to why widowed and/ or divorced daughters were excluded from the benefit of the Scheme. It was 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 a proposition, the counsel relied on the 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 argued 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 predeceased 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.
Reasoning and Decision of the Court
The Court declared that Clause 5.2.5 of the Guidelines for Disbursement of Central Samman Pensions followed by Authorized Public Sector Banks, issued by the Ministry of Home Affairs, as being violative of Art. 14 of the Constitution of India after observing that 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''.
The bench further observed that,
"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."
The Court also stated that,
"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."
The Court observed that a conjoint reading of Art. 14 and 39(a) ensures that the State is to direct its policy towards securing such an end. Observing that Art. 39(d) also ensures that there is equal pay for equal work for both women and men, the Court held:
"Although Article 39 is a Directive Principles 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."
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.
Case Details:
Case Title: Sonali Hatua Giri v. Union of India & Ors.
Bench: Sabyasachi Bhattacharyya, J.
Read Order@LatestLaws.com
Share this Document :
Picture Source :
