Breaking: Widowed/divorced daughters of a freedom fighter with no pensionable income, general exclusion violates Article 14: Calcutta High Court

The Calcutta High Court said on Wednesday Section 5.2.5 of Central Samman Pension Disbursement Guidelines followed by Approved Public Sector Banks, issued by the Ministry of Interior, as being contrary to art. 14 of the Constitution of India after observing that the “the general exclusion of widowed/divorced girls, including even those who have no personal income in lieu of maintenance or otherwise, is manifestly out of Section 14 of the Constitution of India, which enshrines the guarantee equality for all citizens”.

A single bench of judges composed of Judge Sabyasachi Bhattacharyya observed thus:

“..The general exclusion of widowed/divorced girls, including even those who have no personal income in lieu of alimony or otherwise, is clearly outside of Article 14 of the Constitution of the India, which enshrines the guarantee of equality to all citizens In the present case, the classification is worse than the gender bias, since unmarried girls were included in the scheme but widowed/divorced girls who are on the same footing, having no independent source of income, were excluded.Deeds of succession, daughters, regardless of qualification, are entitled to the property of the deceased as heirs.Thus, the mere existence of a right in a book of law to obtain spousal support from the matrimonial family is not at all sufficient to meet the financial needs of these widowed/divorced daughters who have no income.”

The sighting came in a petition challenging the powers of clause 5.2.5 of the scheme providing for the payment of a pension to freedom fighters under the Central Samman pension scheme.

The facts of the case are that the applicant, being the daughter of a deceased freedom fighter, was in receipt of the pension under the scheme until her death on 4 December 2012. A divorce decree was obtained by the applicant on March 19, 1999 and since then she has been residing in her paternal home with her son. Being a divorced woman, she was dependent on her father since she had waived the right to her alimony from her husband.

It was the case of the applicant that after the death of her father, her widowed mother applied for the granting of a pension, but the representation was maintained for a long time. Her mother subsequently died in 2019, leaving behind the petitioner and her son alone.

Pursuant to Clause 5.2.5 of said Scheme, it is intended that “The widowed/divorced daughter is not entitled to the samman pension”. Clause 5.2.3 states that in order to transfer the pension to the spouse or daughter, a twin state must be fulfilled, i.e. to be single and without an independent source of income.

It has therefore been argued by the petitioner that clause 5.2.5 excludes widowed/divorced daughters from the entitlement, although “single” girls were included. According to the petitioner, such discretion has no reasonable basis and violates Section 14 as well as Section 39 of the Constitution of India.

According to the Union of India, it has been argued that a widowed girl and a divorced girl have the right to support themselves as they have been given sufficient benefits under various laws, which are not available for a single girl. Thus, the classification of widowed and divorced girls on the one hand and single girls on the other hand is reasonable.

Court’s observations

The Court observes that a joint reading of Art. 14 and 39(a) ensure that the state directs its policy towards the achievement of this end. Noting that art. 39(d) also guarantees that there is equal pay for equal work for women and men, the Court held:

“Although Section 39 is a guiding principle of state policy, not directly enforceable in law, the fundamental rights of Indian citizens must be considered in the context of the guiding principles to give teeth to the intentions of the drafters of the Constitution of India.”

In view of the said observation, the Court observed that clause 5.2.5 is “irrational as it excludes widowed/divorced girls from eligibility.”

Noting that the purpose of the Scheme should be formulated as “a sign of honor by a grateful nation to honorable freedom fighters and their dependents”it was not necessary that the term “dependents” under the scheme must necessarily be in accordance with other laws such as the deeds of succession of various religious communities. The Court observed as follows:

“However, even if we consider the laws in question, no line of distinction has been drawn between divorced and unmarried girls. For example, if we read Articles 8 and 9, in conjunction with Class I of From the schedule to the Hindu Succession Act, 1956, it will be apparent that Class I heirs include not only the widow but also the daughter of the deceased. Thus, no line of demarcation has been drawn between “single” girls and “divorced” girls.

Furthermore, the Court observed as follows:

“Legal provisions cannot address the pangs of hunger and/or the urgent need for subsistence of human beings. As stipulated in the case of unmarried girls, widowed/divorced girls are also considered unmarried but have been excluded If clause 5.2.5 does not exist, the term “single” could very well include within its scope widowed/divorced daughters of pensioners, since their marital status would be also on equal footing with unmarried daughters remedy, or a court order awarding a meager amount as child support is not sufficient to meet the needs of widowed/divorced daughters, but they may also be at dependent on their father, being the freedom fighter, in the event that they do not/cannot choose to pursue legal remedies and do not have sufficient income. nts to meet their needs”.

Considering the above observations, the Court also held that the general exclusion of widowed/divorced girls, including even those who have no personal income in lieu of alimony or otherwise, is manifestly out Article 14. While noting that unmarried daughters were included in the scheme but widowed/divorced daughters who are on the same footing, having no independent source of income, were excluded, the Court called such classification as “worse than gender bias”.

“However, with respect to daughters without an independent source of income, widowed/divorced daughters are on equal footing with an unmarried daughter as the heirs of the deceased freedom fighter. Marital status of all is “single”. Thus, the criteria for the exclusion of widowed/divorced daughters, as sought to be projected by Respondent #1, is untenable in the eyes of the law. As such, clause 5.2. 5 is manifestly contrary to Section 14 of the Constitution of India, which ensures equality between persons placed on the same footing, in the absence of reasonable classification or intelligible differences.” The Court upheld.

In view of this, the Court declared clause 5.2.5 of the said guidelines ultra vires holding that clause 5.2.3 would also include widowed/divorced daughters as eligible for the Sainik Samman scheme in question, provided they satisfy the other criterion of the absence of an independent source of income.

Title: Sonali Hatua Giri c. Union of India & Ors.

Click here to read the order

Thelma J. Longworth