Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Sureshwar Thakur and Chander Bhusan Barowalia JJ., while allowing the present petition said, “Marriage neither alters the relationship between the married daughters with her parents nor creates severance of a relationship. A son remains a son and his marriage does not alter or severe his relation with his parents, likewise, a daughter is always a daughter to her parents, her marriage also does not alter or severe her relation with her parents. If the State even draws a thin line of distinction based on gender, then that line has to withstand the test of Article 15 of the Constitution of India, which prohibits discrimination on the basis of religion, race, caste, sex or place of birth.”

 Facts

Facts of the case are briefly enumerated herein;

  1. That on 08-05-2019, Thakur Dass, father of the petitioner, who was a class IV employee in the office of District Ayurvedic Office, Kullu, died in harness.
  2. That the petitioner, her sister and mother are the survivors of Thakur Dass and there is no male member in their family.
  3. That as per the petitioner, she, her mother and sister, were dependant on late Shri Thakur Dass, and her mother and sister are unwilling to opt employment.
  4. That the petitioner, who is M.A. (Hindi) and has diploma in Computers, applied through an application for compassionate appointment, duly supported with the affidavits of her mother and sister purveying their ‘No Objection’.
  5. That the annual family income of the petitioner’s family is Rs 63000 falling well within the prescribed limit of Rs 225000, for a family of four members.
  6. That the cause of action arose on 22-06-2020 when the application of the petitioner was rejected on the premise that “there is no provision in the Policy for grant of employment assistance to the married daughter of the deceased Government employee.”
  7. That the petitioner has approached the present forum so as to declare the said policy as unconstitutional on the ground of being gender discriminatory, unjust and in contravention with the principles of equality.

Contentions

Counsel for the petitioner, Maan Singh, argues that the aforementioned clause of the policy has no rationale with the object sought to be achieved (of providing compassionate appointment). Moreover, just as a son of an employee who dies in harness, remains son throughout, likewise, a daughter remains daughter irrespective of any contingency or change in marital status. It was argued, “A married daughter cannot be discriminated merely because she is married, whereas no such rigor is applicable to a married son. Marriage alone cannot constitute a ground for discrimination and constitutionally State cannot be allowed to use this assumption of marriage, being a rationale for hostile discrimination denying benefits to a married daughter, especially in the wake of the fact that equal benefits are being extended to a son, whether married or unmarried.”

Counsel for the respondents, Hemant Vaid, J.S. Guleria and Hemanshu Mishra, argued that the petitioner is ineligible for appointment on compassionate grounds as the policy is only applicable to the dependents of the deceased Government employee and the marriage of the petitioner, in this case, disentitles her to be counted as a dependent of the deceased government employee. As per the respondents, elements of the policy of compassionate appointment are not only based on financial circumstances, but also on social circumstances such as in the present case.

 Observations

In addition to its decision, the Court cited the following cases;

In a judgment by Uttranchal High Court; Udham Singh Nagar District cooperative Bank Ltd. v. Anjula Singh, it was said, “Non-inclusion of a ‘married daughter’ in the definition of a ‘family’, under rule 2(c) of the 1974 Rules and the note below Regulation 104 of the 1975 Regulations, thereby denying her the opportunity of being considered for compassionate appointment, even though she was dependent on the Government servant at the time of his death, is discriminatory and is in violation of Articles 14, 15 and 16 in Part III of the Constitution of India.”

High Court of Madras in, N.Uma v. The Director of Elementary School Education, observed, “(…) artificial classification between married son and married daughter only on the basis of sex would tantamount to gender discrimination. If a married son is considered to be a part of the family, this Court is at a loss to understand as to why a married daughter should not be included in the definition of family.”

Vimla Srivastava and others 2016(1) ADJ 21 (DB), “Marriage does not have and should not have a proximate nexus with identity. The identity of a woman as a woman continues to subsist even after and notwithstanding her marital relationship. The time has, therefore, come for the Court to affirmatively emphasis that it is not open to the State, if it has to act in conformity with the fundamental principle of equality which is embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters, by depriving them of the benefit of a horizontal reservation, which is made available to a son irrespective of his marital status.”

Reflecting upon the object of having the policy for compassionate appointment and the duty of the State to ensure welfare for all, the Court under Para 21 of the judgment said,  “The object of compassionate appointment is not only social welfare, but also to support the family of the deceased government servant, so, the State, being a welfare State, should extend its hands to lift a family from penury and not to turn its back to married daughters, rather pushing them to penury. In case the State deprives compassionate appointment to a married daughter, who, after the death of the deceased employee, has to look after surviving family members, only for the reason that she is married, then the whole object of the policy is vitiated.”

 Decision

While allowing the present petition and issuing necessary directions to the respondent authorities, the Court held, “After incisive deliberations, it emerges that core purpose of compassionate appointment is to save a family from financial vacuum, created after the death of the deceased employee. This financial vacuum could be filled up by providing compassionate appointment to the petitioner, who is to look after the survivors of her deceased father and she cannot be deprived compassionate appointment merely on the ground that she is a married daughter, more particularly when there is no male child in the family and the petitioner is having ‘No Objection Certificates’ from her mother and younger sister, the only members in the family.”[Mamta Devi v. State of Himachal Pradesh, 2020 SCC OnLine HP 2125, decided on 28-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and Surendra P. Talwade, JJ., while addressing petition wherein the mother has complained of facing harassment through her daughter, held that,

if children cannot take care of their parent/s and allow them to live in peace, they atleast ought not to make their life a living hell.

Petitioner is an ex-government employee and respondent 1 is one of the 5 daughters of the petitioner.

Petitioner states that she is mentally as well as physically tortured by her daughter and has been residing with the petitioner forcefully with her 19 year old son.

An application was also filed under Section 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 by the petitioner before respondent 2 seeking eviction of respondent 1 from the flat.

Respondent 1 had also threatened her father on one instance wherein she  said that “if you force me to leave the house then I will lodge a police complaint against you that you are molesting me.”

Thereafter, respondent 1 kept on administering threats to her father, who was unable to do anything since he felt totally helpless. Not only the Petitioner and her husband were harassed by Sarita, but even her son (who was a minor) started dictating terms to the Petitioner and her husband, who did not retaliate under the fear that Sarita will malign their image in society.

After the demise of petitioner’s husband, respondent 1 intensified her harassment towards the petitioner. Respondent 1 had also destructed the petitioner’s cell phone so that nobody could directly contact her.

Petitioner once got a chance to talk to one of her daughter(Vaishali) who flew from Singapore to meet her and at that time petitioner gathered some courage and narrated the misdeeds that respondent 1 used to conduct on petitioner by beating her up, making her remain without clothes and used to give her food only once a day.

Later, Vaishali and petitioner filed a complaint against the respondent 1 and also got published an article about the misconduct of respondent 1.

After undergoing several tests, it was confirmed that the Petitioner had comminuted fracture and that her nerves were severely damaged around her shoulder and neck area, one nerve in the left arm was totally damaged, for which the Petitioner had to undergo various surgeries. She lived with a fractured shoulder and broken nerves for almost five months under house arrest by the Respondent 1, without even plaster or support, leave aside proper medication.

Bench on talking with petitioner gathered an impression that she seriously apprehends physical and mental harassment and consequently threat to her life at the hands of respondent 1, if she goes to reside in her own Flat without respondent 1 being evicted from the same.

Court made it extremely clear that,

if children cannot take care of their parent/s and allow them to live in peace, they atleast ought not to make their life a living hell.

Bench assured the petitioner that is she lives in her own flat and face any harassment from respondent 1 or her son, she will be provided all assistance, both by the Court and police authorities.

Installation of CCTV cameras inside the flat has been directed.

Respondent 1 and her son, both have been sternly warned . Senior Inspector of local police station under who jurisdiction the flat come has been directed to give all assistance to the petitioner.

Respondent 1 and her son will not obstruct entry of any of the relatives whom petitioner wants to meet. Also respondent 1 and her son are not allowed to invite or bring any of their guests to the flat without prior permission of petitioner through her advocate. [Rajani B. Somkuwar v. Sarita Somkuwar, 2020 SCC OnLine Bom 696 , decided on 05-06-2020]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Dama Seshadri Naidu, J. while hearing a civil writ petition ruled that a daughter is an ostensible agent of her mother and as such application filed by daughter on behalf of her mother is maintainable.

Petitioners, a mother-daughter duo, were partners in the business of husband/father which was an assessee under the Kerala Value Added Tax Act. Respondent initiated proceedings to recover arrears of tax and as a part of those proceedings it attached the husband’s share in his ancestral property. Petitioner wife who had strained marital relationship with her husband filed an execution petition for return of her property and movables from him, which was allowed by the Family Court. On obtaining sale certificate for her property, she noted that the said property had already been attached by the respondent tax authority. So she filed an application before tax authorities through her daughter to take advantage of the amnesty scheme floated by Department for the defaulting dealers but her request was rejected. Assailing the said order of rejection, petitioner filed the instant petition.

Petitioner submitted that the amnesty scheme allowed any aggrieved person to apply under it and the petitioners were aggrieved persons as they had an interest in the assessee’s estate. The husband had acted vindictively and deliberately not taken benefit of the amnesty scheme as he did not want his wife and daughter to receive the property.

Respondents submitted that it was the wife had filed matrimonial proceedings and secured a sale certificate. Therefore, her daughter could not be included within the term ‘aggrieved person’ and as such application filed by daughter before tax authorities was not maintainable.

The Court observed that petitioner duo had a common cause: driven out, both had to fend for themselves. The daughter was a dependent – the mother had fought not only to secure her interest but also to secure her daughter’s interest. Therefore, the daughter was ostensible agent of her mother, who has already secured a sale certificate. Separately, as a dependent, she also had a stake in her father’s estate. In view of the above, the petition was allowed with a direction to the tax authority to consider daughter’s application afresh. [Naseera A.P. v. State of Tax Officer,2018 SCC OnLine Ker 4924, decided on 07-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Rajiv Sahai Endlaw, J. rejected a petition filed a father against the order of Principal Judge (Family Courts) whereby he was directed to pay monthly maintenance to his daughter.

The petitioner was directed to pay a sum of Rs 11,000 as litigation expenses and Rs 10,000 as interim maintenance to his daughter every month. Aggrieved thereby, he preferred the present petition. The Court referred to Manish Aggarwal v. Seema Aggarwal2012 SCC OnLine Del 4816 wherein it was held that Section 24 to 27 of the Hindu Marriage Act, 1955 was appealable under Section 19(6) of the Family Courts Act, 1984.

It was held by the High Court that the reasons which prevailed in Manish Aggarwal for holding interim maintenance under Section 24 HMA to be appealable under Section 19(1) of the Family Courts Act equally apply to grant of interim maintenance under Section 20 of Hindu Adoption and Maintenance Act, 1956. Furthermore, once the legislature has prescribed a remedy of appeal, the principle that Writ Court should abstain from exercising jurisdiction when an alternative remedy is available comes into play. In light of the above, the petition was rejected. [Jayanti Prasad Gautam v. Pragya Gautam,2018 SCC OnLine Del 11535, decided on 19-09-2018]

Case BriefsHigh Courts

Meghalaya High Court: A Single Judge Bench comprising of Mohammad Yaqoob Mir, CJ., dismissed a petition claiming the family pension.

Facts of the case were that petitioner’s father was a constable and after his superannuation, he got retired in 1991. In the year 2009, the petitioner’s father expired. After he got expired his wife represented for grant of family pension which in the beginning was not granted and eventually an order withdrawing family pension was passed by AG’s Office to the Superintendent of Police. Since in 2017 wife also expired her daughter i.e. petitioner claimed family pension which was not considered. Hence, this petition was filed before the High Court.

Petitioner submitted that this petition was maintainable by virtue of amended Rule 48 of the Meghalaya Civil Services (Pension) Rules issued by Finance (Pension Cell) Department, Government of Meghalaya. According to the aforementioned rule family for the purpose of pension constitute a daughter which includes widow daughter, till the date of marriage or remarriage or till the date, she starts earning or till she turns 25 years old.

Issue before the Court was whether petitioner (daughter) can claim family pension after the death of the wife (petitioner’s mother) was found to be weakened by the fact that petitioner was otherwise not eligible to such family pension.

The High Court found that petitioner was married and above 25 years of age and by virtue of Rule 48 a married women cannot claim the family pension. Therefore, the petition was dismissed. [Prettilla M. Sangma v. State of Meghalaya,2018 SCC OnLine Megh 175, Order dated 27-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of S. Muralidhar and Vinod Goel, JJ. dismissed a criminal appeal filed against the judgment of the trial court whereby the appellant was convicted under Section 6 read with Section 5(m) and (n) of the Protection of Children from Sexual Offences Act, 2012.

The appellant was accused of committing the offence of penetrative sexual assault on her 5 years old daughter. The appellant was convicted by the trial court primarily on the testimony of the victim-daughter. Learned counsel for the appellant submitted that the victim seemed too intelligent for her age and that she was tutored by her mother, wife of the appellant.

The High Court rejected the submissions of the appellant and observed that the victim child was clear about what she underwent. Her responses during cross-examination reinforced that. She categorically stated that the appellant committed sexual assault upon her. Further, the child victim had suffered a trauma which was hard to forget, and it was unimaginable that she would falsely accuse her father. Thus, the Court held that there was no cause to interfere with the judgment impugned. The appeal was dismissed while directing Delhi State Legal Services Authority to ensure that the victim received appropriate compensation in accordance with the Victims’ Compensation Scheme for Delhi formulated under Section 357A CrPC. [Ram Dass v. State,2018 SCC OnLine Del 10291, dated 02-08-2018]