Eligibility criteria for a specific category in a recruitment process must be met based on the requirements stated in the notification, and a nuptial relationship for Hindus can only be annulled by a decree of divorce granted by a competent court.

JUDGMENT

Dinesh Mehta, J. - By way of present writ petition, the petitioner has challenged exclusion of her name from the category of divorcee .

2. The facts apropos the case in hands are that the petitioner vied for the post of Community Health Officer, pursuant to recruitment notification dated 31.08.2020.

3. At the time of submitting her application form on 16.09.2020, the petitioner showed herself to be a divorcee and staked her claim against the seats reserved for divorcee .

4. The basis of claiming herself to be a divorcee was, an agreement said to have been executed between the petitioner and her husband on 08.04.2017.

5. Mr. Solanki, learned counsel for the petitioner submitted that respondents have erred in not considering petitioner as a divorcee inasmuch as the petitioner had produced before the respondents a copy of the agreement dated 08.04.2017, whereby her marriage has been dissolved with mutual consent.

6. It was also submitted by Mr. Solanki that by the time of document verification, petitioner had filed an application for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955 (for short, the Act of 1955 ) and during the course of verification of documents, she had showed copy of said application, thus the petitioner ought to have been considered as divorcee . It was without prejudice to his basic argument that the customary divorce/Talaknama duly reduced into writing on 08.04.2017, was enough to establish that petitioner was a divorcee .

7. Heard and perused the record.

8. It is noteworthy that in the above agreement, labelled as Talaknama , the petitioner and her husband themselves have stated that they contracted marriage as per the Hindu (Bishnoi) rituals. Thus, there cannot be any denial of the fact that they are Hindus.

9. Petitioner who is indisputably a Hindu (may be belonging from a Backward Class), is governed by the provisions of the Act of 1955.

10. A matrimony of a Hindu can be brought to an end or marriage of a Hindu male or female can be dissolved only by a decree granted under Section 13/13-B of the Act of 1955.

11. All Hindus including Vishnois, the community from which petitioner belongs, are governed by the Act of 1955. Members of Scheduled Tribe alone, are immune from the applicability of provisions of the Act of 1955. That too, because of the exclusionary provision contained in sub-section (2) of Section 2 of the Act. Sub-Section (2) of Section 2 of the Act of 1955 reads thus:

"(2) Notwithstanding anything contained in subsection (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs."

12. Section 4 of the Act of 1955 reads thus:

"4. Overriding effect of Act.-- Save as otherwise expressly provided in this Act,

(a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act."

13. A combined reading of the provisions quoted above, namely, Section 2(2) and 4 of the Act of 1955 leaves no manner of doubt that a nuptial relationship cannot be annulled, except by a decree of divorce granted by a competent Court. Any custom or usage to dissolve the marriage has no sanctity of law so far as Hindus (other than a member of Scheduled Tribe) are concerned.

14. It has been held by Hon ble the Supreme Court in Subramani and Ors. Vs. M. Chandralekha, (2005) 9 SCC 407, as under:-

"15. Though no issue was framed on this point the appellants did examine DWs. 2 to 5 to show that in their community marriage could be dissolved under the customary law. We have gone through t