Pascal @ Pasco Kinny Vs. Cilina Sybil Kinny and anr.

Pascal @ Pasco Kinny vs Cilina Sybil Kinny and anr.

Type Court Judgment Court Mumbai Decided Nov 01, 1996

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Citation: sooperkanoon.com/363093
Court: Mumbai High Court
Judge: K.K. Baam, J.
Decided On: Nov 01, 1996
Case Number: M.J. Suit No. 926 of 1996
Subject: Family

Case Summary

AI-generated summary - not the official court judgment text.

- Section 10: [Swatanter Kumar, C.J., A.P. Deshpande & Smt. Nishita Mhatre, JJ] Admission to professional colleges - Technical courses - Publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges Held, For ensuring adherence to p...

Key legal issue: Family
Acts & sections: Indian Divorce Act, 1869 - Sections 10

Parties & Advocates

Appellant / Petitioner

Pascal @ Pasco Kinny

Advocate S.F. Rego and ;N.J. D'Monte, Advs.

Respondent

Cilina Sybil Kinny and anr.

Advocate None

Legal References

Acts: Indian Divorce Act, 1869 - Sections 10
Reported In: I(1997)DMC93

Excerpt

.....the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the..........under section 10 of the indian divorce act. notice has been served upon the respondent and co-respondent. though served, none of them cared to remain present before the court. affidavit proving service has been filed.2. in view of the fact that respondent and co-respondent have, despite service, not cared to file any reply nor engaged any advocate to represent them, the matter was placed on board for ex-parte. even today when the matter was called out, neither the respondent nor co-respondent was present in the court nor represented by any advocate. hearing of the petition is, therefore, proceeded ex parte.3. the petitioner has examined himself on oath. from his uncontroversial evidence it transpires that the marriage between the petitioner and respondent was solemnised on february 14,1982 in the church of our lady of perpetual succour, manori, bombay according to christian rites. the certificate of marriage is annexed to the petition as exhibit a.the evidence of the petitioner reveals that there are three issues of the marriage namely savio, terence and james who are in the care and custody of the petitioner. the evidence of the petitioner further reveals that the petitioner and the respondent resided together after their marriage at their family house at manori. till 1985, the respondent's behaviour was normal towards the petitioner and in the year 1986 she became friendly with one shaukat in the vicinity and he became a regular visitor to their house in the absence of the petitioner.4. the evidence of the petitioner further reveals that in april, 1986, he returned home early at about 3.00 p.m. and was shocked to find the respondent and co-respondent in a compromising situation. the petitioner was annoyed and tried to catch hold of said shaukat but he ran away and then die respondent was taken to task by petitioner chasing her out of the house but she also ran away to her father's place at pahchghar, manori.5. the evidence of the petitioner further.....

Full Judgment

K.K. Baam, J.

1. This suit for divorce has been filed by the petitioner/husband Under Section 10 of the Indian Divorce Act. Notice has been served upon the respondent and co-respondent. Though served, none of them cared to remain present before the Court. Affidavit proving service has been filed.

2. In view of the fact that respondent and co-respondent have, despite service, not cared to file any reply nor engaged any Advocate to represent them, the matter was placed on Board for ex-parte. Even today when the matter was called out, neither the respondent nor co-respondent was present in the Court nor represented by any Advocate. Hearing of the petition is, therefore, proceeded ex parte.

3. The petitioner has examined himself on oath. From his uncontroversial evidence it transpires that the marriage between the petitioner and respondent was solemnised on February 14,1982 in the Church of Our Lady of Perpetual Succour, Manori, Bombay according to Christian rites. The certificate of marriage is annexed to the petition as Exhibit A.

The evidence of the petitioner reveals that there are three issues of the marriage namely Savio, Terence and James who are in the care and custody of the petitioner. The evidence of the petitioner further reveals that the petitioner and the respondent resided together after their marriage at their family house at Manori. Till 1985, the respondent's behaviour was normal towards the petitioner and in the year 1986 she became friendly with one Shaukat in the vicinity and he became a regular visitor to their house in the absence of the petitioner.

4. The evidence of the petitioner further reveals that in April, 1986, he returned home early at about 3.00 p.m. and was shocked to find the respondent and co-respondent in a compromising situation. The petitioner was annoyed and tried to catch hold of said Shaukat but he ran away and then die respondent was taken to task by petitioner chasing her out of the house but she also ran away to her father's place at Pahchghar, Manori.

5. The evidence of the petitioner further reveals that through the intervention of the relations and friends, the respondent apologies for her misconduct with an assurance that she will behave nicely and give up her improper behaviour and association and came back to reside with the petitioner. The evidence also reveals that thereafter once again the respondent became friendly with the co-respondent which was in 1994 and when the petitioner questioned her, she denied of having any such relationship. However, on November 10, 1994 when the petitioner returned home early from work, he was shocked to find the respondent in bed with the co-respondent. On seeing the petitioner, the co-respondent ran away and even so far as the respondent is concerned, she also ran away through the back door.

6. The evidence further reveals that thereafter he tried to see the respondent at her mother's place of residence but the respondent was not found there and on enquiries, petitioner came to know that respondent and the co-respondent are living together.

7. The evidence of the petitioner further reveals that on March 3, 1995, when the respondent returned home, reconciliation was brought about by the Priest. Till March 21,1995 she resided with the petitioner when she left the matrimonial home. Thereafter the respondent did not make any efforts to return home. The evidence of the petitioner further reveals that the respondent and co-respondent are living together. On this count, the evidence of the petitioner is not challenged nor controverted. I, therefore, hold that the respondent is leading adulterous life with the co-respondent. I further hold that there is no collusion or connivance between the petitioner and the respondent with regard to subject-matter of the petition and the petitioner has not condoned the acts of the respondent. I, therefore, pass the following order.

ORDER

Decree nisi in terms of prayer (a). Petition made absolute in terms of prayer (a).

C.C. expedited.

Same Court & Year Mumbai · 1996 Same Parties Pascal @ Pasco Kinny vs Cilina Sybil Kinny and anr. Same Subject Family Same Judge K.K. Baam, J. Acts & Sections Indian Divorce Act, 1869 - Sections 10

Family