How does marriage affect a woman's standing? High Courts challenge status quo in cases of compassionate appointment

Over the last two decades, the status of women in India has witnessed a significant metamorphosis, with the country’s judiciary playing a meaningful role in ensuring that their fundamental rights are protected.

In a new stream of jurisprudence that has developed through the High Courts, judgments have begun to question the status quo regarding a woman’s standing in her paternal home after she is married.

In one of the most recent decisions of this nature, the Karnataka High Court observed that the marriage of a woman does not change her status as a daughter. This observation was part of a judgment that struck down the words "till married" in guidelines for grant of identity cards to dependents of ex-servicemen.

“If the son remains a son, married or unmarried; a daughter shall remain a daughter, married or unmarried. If the act of marriage does not change the status of the son; the act of marriage cannot and shall not change the status of a daughter," Justice M Nagaprasanna said.

Similarly, the Himachal Pradesh High Court held that not counting a daughter as a family member for assessing annual income was discriminatory and amounted to perpetuating gender inequality.

"In case the criteria so fixed by the Government is given the stamp of approval by the Court, then the Court will also become a party to this gender inequality, being practiced by the State," the judge had emphasised.

These recent opinions reflect a change in the position of women within familial and social structures. In this context, there is a stream of decisions across courts that discuss the law surrounding compassionate appointments.

What is the prevailing law on compassionate appointment?

The Central government's Scheme for Compassionate Appointments, updated in August 2022, is meant to grant appointment on compassionate grounds to a dependent family member of a government servant who dies before retirement or retires on medical grounds, leaving their family without any means of livelihood.

According to the Centre, a dependent family member includes a spouse, son, daughter, brother, or sister (if the government servant was unmarried). However, state governments have formulated individual rules governing the grant of compassionate appointment.

While interpreting the law surrounding this issue, the Supreme Court recently held that a married daughter was not a dependent, and thus, would not be entitled to appointment on compassionate grounds.

Here, it is also important to note that no such distinction has been drawn in relation to the entitlement of a son to similar appointments.

In the most recent judgment of its kind, a Bench of Justices MR Shah and Krishna Murari held that a married daughter cannot be said to be dependent on her deceased mother for the purposes of entitlement to compassionate appointment.

In 2021 as well, in the case of Director of Treasuries in Karnataka v V Somyashree, the apex court held that a married daughter could not be considered a dependent.

The 2020 decision of the Supreme Court in the case of NC Santhosh v. State of Karnataka continues to hold the field and is cited by every subsequent decision of the Supreme Court.

The Court in NC Santhosh held that a dependent does not have a vested right of appointment on the death of a government employee, and can only demand consideration of their application for compassionate appointment.

Interestingly, the judgment also says that appointment on compassionate ground is an exception to the well-settled principle that for all government vacancies, equal opportunity should be provided to all aspirants, in line with Articles 14 and 16 of the Constitution.

On the contrary, High Courts across the country have taken a different view while holding that married daughters are, in fact, entitled to compassionate appointment.

The polarity in approaches taken by High Courts and the Supreme Court shows that the latter has chosen a literal interpretation of policy and rules framed by state governments relating to the issue. High Courts, on the other hand, have opted for a purposive interpretation and have taken a liberal view in a bid to balance the scales.

A few examples of this follow:

1. Most recently, in January this year, the Punjab & Haryana High Court held that the exclusion of a married daughter from compassionate appointment is arbitrary and discriminatory.

It was opined that rejection of compassionate appointment to a married daughter, simply on the ground of gender, was violative of Articles 14 and 15 of the Constitution. 

“...a married daughter is shut out from even applying as she would not come within the zone of consideration whether she is dependent or not but exclusion is only on account of gender and it would be patently discriminatory,” the Court held. 

2. In September 2022, a Full Bench of the Rajasthan High Court held that leaving out "married daughter" from the definition of dependents under the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 was clearly discriminatory.

The Court noted that the assumption that a married daughter would invariably not be dependent on the government servant was based on surmises, oblivious of present-day social realities.

"At the same time including a dependent married son, while leaving out a dependent married daughter from the definition, is clearly discriminative," the High Court held in its judgment.

3. Similarly, the Tripura High Court also struck down a government notification that excluded married daughters from such appointments last year, while holding that it had no rationale.

A Division Bench of the Court opined that marriage does not break the bond between a daughter and her parents, in the same manner that the bond between a son and his parents remains unaffected.

“A crisis in the family of her parents equally worries a married daughter. As such, there is no rationale behind exclusion of a married daughter from the scheme,” the Court further explained.

4. A decision with the same reasoning was rendered by the Karnataka High Court in December 2020, while allowing a petition moved by a daughter against denial of appointment on compassionate grounds to her deceased father's job on account of her being married.

“Marriage does not determine the continuance of the relationship of a child with the parent, whether son or a daughter. Son continues to be a son both before and after marriage and a daughter also should continue to be a daughter both before and after marriage,” Justice Nagaprasanna held.

In addition, a Full Bench of the Madhya Pradesh High Court has also found that a policy which took out married daughters from the right of consideration for compassionate appointment was unconstitutional.

The Court held that the policy which deprives married women from the right to be considered for compassionate appointment violates the equality clause and could not be countenanced.

"There is no condition imposed while considering a son relating to marital status. Adjective/condition of "unmarried" is affixed for the daughter. This condition is without there being any justification and; therefore, arbitrary and discriminatory in nature."

5. In 2019, the Calcutta High Court stayed an amendment to the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 which excluded married daughters from availing compassionate appointment. The Court also made a critical note of the patriarchal arguments made by the counsel defending the amendment.

“The socio-economic-cultural argument canvassed by Mr. Bandyopadhyay, in my view, is a patriarchal argument bordering on misogyny and cannot be accepted by this Court. No distinction can be made on the basis of the factum of marriage of a woman. Such a classification clearly is in violation of Article 14 of the Constitution of India,” Justice Shekhar B Saraf had said in his judgment.

(Note: According to the Calcutta High Court website this case was disposed of on November 28, 2019. No order was uploaded.)

6. The Uttarakhand High Court also held that exclusion of a dependent married daughter, while including a dependent married son in the definition of a family in rules relating to compassionate appointment, amounted to gender discrimination.

A Full Bench of the Court elaborated that accepting the archaic paternalistic notions of a married daughter ceasing to be a part of her parents family after marriage, and ignoring her identity as distinct from that of her husband, was not in tune with the current times.

"This misogynous posture is a hangover of the masculine culture of manacling the weaker sex," the Court had said.

In 2018, the Jharkhand High Court also held that the exclusion of a daughter solely on the basis of her marital status was not reasonable.

"The manner in which the appellant wants the aforesaid provision to be interpreted would render it invalid as there can be no justification for not qualifying the son's eligibility on the basis of marital status whereas a daughter has been placed under restriction on that count. Such discrimination is not based on any reasonable or rational criteria", said a division bench of the court.

Pertinently, none of these High Court decisions make a reference to the 2021 judgment of the Supreme Court in the case of Director of Treasuries in Karnataka.

This apparent discord between recent judgments of the top court and those of the High Courts gives rise to a legal quandary as to how the position of a married woman ought to be evaluated while considering grant of compassionate appointment.

An unequal policy that distinguishes between sons and daughters on the sole consideration of their marital status would surely struggle to stand the test of Article 14 of the Constitution, which ensures equality before law.

However, an unequivocal decision in this regard can only be taken by the top court, which will put the dissonance to rest.