Pankaj Kumar Mondol vs State of West Bengal and Others

Amitava Lala, J.—In this writ petition, the second empanelled (male) candidate challenged the very selection of first empanelled (female] candidate, respondent No. 9 herein in a post of Gram Panchayat. According to the petitioner, respondent No. 9 is not the resident of Binpur-I Block after solemnization of her marriage in the year 1977. Therefore, the declaration as made about her paternal address of Binpur-I Block at the time of issuance of the notice inviting applications for selection of the appropriate post dated 17th March, 1999 is wrongful. As per the last paragraph of such notice, the candidature of the candidate is liable to be cancelled for giving false information of address. There is no doubt that the petitioner participated in the selection process along with the respondent No. 9 by appearing in the written test and viva voce/oral test etc. The viva voce/oral test was held on 4th May, 2000. According to the petitioner, he challenged the candidature of the candidate on the following date of holding the viva voce/oral test. To establish the case, the petitioner annexed the Invitation Card of the marriage which speaks the date of marriage i.e. on 8th May, 1997. According to the petitioner by the ratio of the judgment reported in Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another, where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. According to the petitioner, the date of advertisement i.e. 17th March, 1999 gave last date of submission of applications on 14th April, 1999 which is to be declared as cut off date for the purpose of due consideration of eligibility criteria. Therefore, when admittedly the marriage solemnized long before, the petitioner cannot be said to be a resident of the Block for which the selection was made. Hence, having such false declaration, the selection of the first empanelled candidate should be cancelled. A further point raised by the petitioner saying that for the purpose of obtaining job, the respondent No. 9 practiced fraud upon the court by making a joint petition for divorce and got a decree to that extent. It appears from the record that the marriage solemnized on 8th May, 1997 when the separation took place on 10th August, 1998. The learned Counsel for the petitioner contended that when the marriage appeared to have been registered sometime in the year 2000 how the separation could be taken place long before ? By citing a further judgment reported in AIR 1987 Orissa 1 (Puspalaia Rout vs. Damodar Rout) he wanted to submit that if a decree is obtained by exercising fraud upon the Court, the judgment and decree are liable to be recalled in exercise of its inherent power of the Court. However, the decree as passed by a competent Civil Court on 5th February, 2001 speaks that the joint petition for divorce was filed on 21st July, 2000 and from evidence it appears that there was no collusion in filing the application. According to me, the Writ Court can not sit on appeal over a decree of the Civil Court. Moreover, the writ petition was filed on a date i.e. 12th May. 2000 prior to the filing of the suit and obtaining decree. Detection of fraud has to be brought to the notice of such Court which passed the decree. After passing such decree about two years elapsed. No one made any allegation of fraud as yet in that court. Therefore, mere apprehension of fraud from the mouth of a third party cannot be regarded as good ground of defence. In further the registration of marriage ipso facto cannot be the marriage but a governmental recognition of marriage which had taken place on 8th May, 1997. The only requirement of the court is a justifiable answer. She has stated so in paragraph 4 of the affidavit-in-opposition affirmed on 23rd April, 2003. She said to avoid any future complication when registration became compulsory such step was taken. However, even such step was taken before filing of the suit in the appropriate Civil Court. Therefore, it can safely be presumed that all such questions were available before the Civil Court at the time of adjudication and passing the decree. The learned Counsels appearing for the State and the respondent No. 9 vehemently opposed the submissions made on behalf of the petitioner. According to the State, there is no hard and fast rule for the lady to reside with the husband. Therefore, the submission on the part of the petitioner that by virtue of her marriage she became the permanent resident of different Block where her husband was residing cannot be acceptable at all. Moreover, the petitioner had participated in the selection process and when became unsuccessful raised his voice about the selection process. This has been repeatedly deprecated by the different Courts of law. The learned Counsel appearing for the State further submitted that when the objection was raised, the same was enquired and investigated by the concerned District Magistrate and found the case of the respondent No. 9 is genuine. Even after adopting the submissions of the State, the respondent No. 9 proceeded further and raised a question about genuinely of the candidature of the petitioner. According to her, the affidavit as well as copy of the identity card of the Employment Exchange being Annexure - ''A'' to the writ petition do not speak that as on 1st January. 1999, the petitioner''s age was in between 18 and 37 years as per the terms of notice calling applications. In defending the case factually the learned Counsel appearing for the respondent further contended that the husband of the respondent No. 9 remarried to another lady and even thereafter if the decree of the Civil Court is shown as fraudulent, it has to be regarded as an unfortunate situation.

The crux of the case is that whether the respondent No. 9 being the lady candidate having been married to her husband loses her identity to become a member of her parents'' family or not. However, concepts are not very clear as yet, therefore, a legal debate, is obvious. After promulgation of the Hindu Succession Act, a lady member of the family even after her marriage is entitled to the share of her parent''s properly. On the other hand, when I take note of the social obligations at the paternal house I find that lady members, after marriage, are not similarly placed with male members of that family. Can you think they can not perform religious right at the time of death of father or mother similarly with the male members i.e. brothers etc.-- Is it not disgraceful? According to me, even till this date they are the oppressed class. Therefore, certain privileges are required to be given to them to balance the social position. Unless and until they are given room for the purpose of focusing themselves in the main stream of life within the parameter of the Constitution, they will remain oppressed for years together. To that extent, the law courts have its own duty and that duty is to be performed not only by the specific prescription of law but also with the guidance of equity which is always rotating on the periphery of law. Lex aliquando sequit''s acquitatem i.e. law sometimes follows equity. This is one of such cases

The problem is with our basic thinking. As soon as a female child is born the parents start carrying impression that she will be given in marriage to a different family which will be her actual family. Therefore, such impression carries tremendous mental pressure and agony upon the parents and the growing baby. As if birth of female child is a curse. Therefore, if we start thinking that a female child is also the real member of both the families either by birth or by law there can not be any problem. She will feel much more secure, free and comfortable. The right upon the father''s property is legal right but right as prescribed above is the religious and social right in which a female child should not feel oppressed. She should feel that she is free from any oppression and mental blockage. By such process society at large will be benefited. Although we have man power of 100 crore but maximum woman power of the country is unutilized because of various obstacles and as such human resources are in great danger. This is one of such examples. In the instant case. a lady, after having been married in the year. 1997 came back to her father''s family in the year 1998 before the publication of advertisement of service requiring candidates from the particular block, therefore, she cannot lose her identity of being member of her father''s family. In accordance with law she has a right over the property which is greater right than the right to use the address. Therefore, when one has greater right she can not be deprived from smaller right. Greater includes smaller. In tills way, parents of a female child will, at least, get mental peace that their daughter is not absolutely excluded from the family. This will also be a tremendous mental support to a lady after marriage when she normally feels lonely. Moreover, the residence of her husband or her actual residence cannot be equated at all. She may reside with her husband. She may reside with her parents. She may reside elsewhere. Therefore, when a dispute cropped up and ultimately settled down at the stage of executive level upon verifying the necessary documents, the question cannot be reopened until and unless the alleged fraud is established before the Civil Court. It is not to be out of place to mention that the Civil Court was very much specific on the basis of evidence that no collusion has been made by the parties before the court. That apart, even after marriage of a lady with her husband cannot automatically extinguish her ''daughterhood'' in her parents'' family. She is free to live as per her sweet will. A question then arises that whether she is entitled to use her paternal surname even after marriage? My answer would be ''yes'' by necessary implication. Use of husband''s title is no more than custom or usage. There is no hard and fast rule. What is expected both from men and women that there should be observation of the rules of decorum, decency, modesty, politeness and courtesy in every sphere of life.

Part IV of the Constitution deals with the directive principles of State policy. If Article 39 and Clause (a) therein are properly seen it will be known that the State shall, in particular, direct its policy towards securing (a) that the citizens, men and women equally, have the right to an adequate means to livelihood. Part IVA of the Constitution deals with fundamental duties. This is new insertion to the Constitution with effect from 3rd January. 1977. Article 51A and part of Clause (c) says that it will be the duty of every citizen of India to renounce practices derogatory to the dignity of women. Part III of the Constitution deals with fundamental rights. Article 14 of the Constitution speaks about equality before law i.e. the State shall not deny to any person equality the law or the equal protection of the laws within the territory of India.

Therefore, what is import of comprehensive reading ? Anything other than the discussion made above? By parting with. I want to wash my hands. Now it is for you the society to think about the same.

However, totality of the case goes in favour of the respondent No. 9 and not in favour of the petitioner. Therefore, with the above observation, the writ petition stands dismissed. There will be no order as to costs. The authority concerned is entitled to proceed to fill up the posts in terms of the result of the selection process.

Prayer for stay of operation of the order is made, considered and refused. Let urgent Xerox certified copy of this order, if applied for, be given to the ld. Counsel for the parties within the period of a fortnight from the date of putting the requisites.