Savita Arun Kadu Vs. Arun Ranganath Kadu - Court Judgment

Excerpt:
family courts act, - hindu marriage act -petition under section 13(1)(ia) and (ib) - wife having filed written statement sought permission for engaging advocate and an application was pending - on next date wife absent - family court proceeded ex parte against wife without giving further opportunity the ex parte judgment set aside.;the family court ought not to have proceeded with the case when the application submitted by the wife for permission to represent her case through advocate was not disposed off. - 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 proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as 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 internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses.d.k. trivedi, j.1. the appellant-original respondent wife has filed this appeal challenging the judgment and decree passed by the learned principal judge, family court, bombay dated 26.4.1994 wherein the learned judge has allowed the petition filed by the husband. as per the decree of the family court, the marriage solemnised between the appellant and respondent dated 22.1.1990 was stand dissolved and decree for divorce under section 13(1)(ia) and (ib) of the hindu marriage act, 1955 was passed and while granting the decree, the petitioner-husband was directed to pay rs. 400/- per month as permanent maintenance to the respondent-wife and daughter.2. the main contention in the present appeal highlighted by the appellant is to the effect that no opportunity was given to the appellant-wife and the family court has proceeded with the petition filed by the husband ex parte and the court has granted petition for divorce in favour of the appellant-husband. accordingly the appellant's grievance is to the effect that the trial court has committed error in granting decree for divorce as prayed for by the respondent-husband. as the family court has proceeded with the petition ex-parte, the appellant prays that the said judgment and decree be set aside and the appellant permitted to lead evidence and the family court be directed to decide the matter in accordance with law.3. the learned counsel appearing on behalf of the respondent-husband is not in a position to assail the judgment of the trial court and submitted that necessary directions be given to the family court to decide the matter expeditiously in accordance with law.4. the learned advocate appearing on behalf of the appellant took us through the record and also the roznama of the case. we have perused the petition for divorce filed by the respondent-husband and the written statement filed by the wife. as reflected from the record that the marriage of the appellant and the respondent were solemnised on 22.2.1990. out of the said wedlock the appellant gave birth to a female child named akanksha on 20.1.1991. the respondent-husband has filed the petition before the family court at bombay on 4.2.1993 praying for divorce and the petition under section 13(1)(ia) and (ib) of the hindu marriage act, 1955 was presented.5. as per the petition, the petitioner-husband and also prayed for the custody of a minor child akanksha aged about 2 years. on 15.2.1993 the family court has issued summons in favour of the petitioner by registered post a.d. the matter was notified before the family court on 3.4.1993 where both the parties were present and the matter was referred to for conciliation before mrs. desai. on behalf of the respondent-wife and application, exhibit-3 was submitted to file written statement and the matter was adjourned by the family court on 12.5.1993. on behalf of the respondent-wife written statement, exhibit-4 was submitted and the report of mrs. desai was received at exhibit-5 and the court kept the matter for framing issues on 7.8.1993. as can be seen from the roznama, on 7.8.1993 the parties were present. however, the matter was adjourned for framing issue and the matter was kept on 7.10.1993. even on the adjourned date i.e. on 7.10.1993, though the parties were present the family court adjourned the matter to 28.12.1993 for framing issues. thereafter on 28.12.1993 the presiding officer was on leave. though the parries were present, the matter was adjourned for framing issues to 2.2.1994. on 2.2.1994 the issues were framed atexhibit-6 and the matter was kept for hearing on 15.3.1994. on 15.3.1994, the parties were present before the court and application, exhibit-7 was submitted by the petitioner-husband for an adjournment and application, exhibit-8wassubmitted by the respondent-wife for permission for representing the case through advocate. as per the request of the appellant-husband, the adjournment was granted and the matter was kept for hearing on 26.4.1994. on that day i.e. on 26.4.1994, the petitioner-husband was present. however the wife was absent. on behalf of the petitioner-husband vakalatnama on shri n.n. walawalkar was filed and the family court has proceeded ex-parte and the evidence of the appellant-husband was recorded at exhibit-10 and on the very day the family court has granted petition for divorce filed by the husband.6. the evidence of the respondent-original petitioner arun raghunath kadu recorded at exhibit-10 shows that their marriage took place on 22.1.1990 at ghatkopar according to hindu vedic rites and from the beginning the appellant-original respondent was saying that she did not want to live with the parents of the husband and she was not behaving properly. she also used to give filthy abuses to him and also to his parents. she is insisting that the parents should do begging and purchase a room for him. according to the husband, she used to insult him in the presence of neighbours and she used to go to her parents house without informing the husband. he has narrated the incident which took place on 6.5.1990 when the parents of the wife came at 11.30p.m. and wanted to take the wife with them as there was some marriage and they quarrelled with the husband and took the wife at 11.45 p.m. and the wife took her all ornaments and clothes. since that day the respondent-wife is staying with her parents and she need not come back to the matrimonial home. even the efforts were made to bring her back. however, she refused. even the friend of the husband one vilas ghag was sent to bring her. however, she had refused. on 20.11.1990 the wife delivered a daughter viz. akanksha. there was a joint meeting on 30.12.1990 and in the said meeting her parents had agreed to send her. however, she did not come and accordingly the petition for divorce was filed. the petitioner-husband is working in the pay and accounts office, akashwani as a peon and gets rs. 1,550/-. according to the husband, the respondent was doing some job and he has also shown his willingness to pay rs. 400/- as permanent maintenance to the respondent and her daughter.7. as stated earlier, that the court has proceeded with the case in the absence of respondent-wife though the application, exhibit-8 was filed by the respondent-wife for seeking permission for appearance of the advocate. it is also to be seen that the application for adjournment filed by the husband at exhibit-7 was granted. even on behalf of the petitioner-husband on 26.4.1994 vakalatnama of advocate mr. walawalkar was filed and the court has proceeded with recording of the evidence of the petitioner-husband. written statement, exhibit-4 was filed by the wife in detail denying the allegations made in the petition by the husband. it is the case of the appellant-wife that no opportunity was given to lead evidence and even the evidence of the respondent-husband was recorded in her absence and the court was proceeded with the judgment on the very day when the evidence-in-chief was completed on 26.4.1994. as reflected in the judgment at paragraph-3, the court has observed that the court has fixed the matter for hearing and the respondent remained absent and proceeded further ex-parte against her. thereafter the presiding officer has proceeded while appreciating the evidence of the petitioner-husband and observed that the conduct of the respondent-wife was grossly excessive and observed that it was sufficient to destroy the legitimate end and object of the matrimony and held that the respondent-husband treated the petitioner with cruelty. the court has further observed that the contention of cruelty does not arise as the parties are living separate. as observed by the learned judge that the respondent-wife lived with her parents since 6.5.1990 and the evidence does not show that she has any reasonable cause to live separately from the husband and recorded the finding that the respondent-wife has deserted the petitioner-husband. the court has accordingly granted decree of divorce as prayed for by the husband and granted maintenance at the rate of rs. 400/- per month by way of permanent maintenance to the wife and daughter. during to hearing the learned advocate appearing on behalf of the appellant-wife has submitted that as can be seen from the written statement, exhibit-4 the wife has denied the allegations made by the husband in his petition. he submitted that when an application for permission to engage an advocate was submitted and when the matter was kept for hearing as the appellant-wife was absent, the court ought to have granted time by adjourning the matter and even on that day on behalf of the respondent-husband vakalatnama of the advocate was filed. the court has thereafter proceeded with the recording of the evidence of the husband at exhibit-10. as the appellant-wife was not present, the husband was not cross-examined and the family court on the very day has granted the petition in favour of the husband while granting divorce.8. on reading the judgment and the pleadings, we are of the view that as can be seen and as we have demonstrated hereinabove that the petition for divorce was filed before the family court on 4.2.1994 and after the service in favour of the wife she appeared in a proceeding and written statement was submitted on 12.5.1993 denying the allegations made in the petition. even when the matter was adjourned from time to time she always used to remain present before the family court. as can be seen that even after filing of the written statement on 12.5.1993 when the court had kept the matter for framing issues, the family court had not framed the issues till 2.2.1994.9. in our view, the family court ought not to have proceeded with the case on 26.4.1996 when the family court granted application submitted by the wife, exhibit-a for permission to represent her case through advocate. considering the pleadings of the judgment and the family court, we are of the view that the family court has while proceeding with the case was recorded an order ex-parte and proceeded further with the recording of the evidence of the respondent-husband. it is very clear that the appellant-wife has been deprived of representing her case when she has denied the allegations made by the husband, as can be seen from the written statement, exhibit-4.10. in our view, the judgment and decree of the trial court which proceeded ex-parte, deserves to be set aside. as the family court proceeded ex-parte without giving opportunity to the appellant-wife, it is necessary that the family court to proceed with the case by giving opportunity to the parties and dispose of the same afresh in accordance with law. we may make it clear that we are not expressing any opinion on the merits of the matter and accordingly the appeal is allowed. we are told that as per the order passed by this court on 16.2.1995, the respondent-husband was directed to pay the maintenance amount as granted by the family court and the same is being paid by the husband. as we are setting aside the ex-parte decree, it will be in the interest of justice that the family court is directed to dispose of the case afresh in accordance with law and the same be disposed of by the end of august, 1997.11. the parties are at liberty to adduce evidence afresh. the appeal is allowed. there will be no order as to costs. the parties are directed to appear before the family court on 7.4.1997 and the family court is accordingly directed to proceed with the case and dispose of the same by the end of august, 1997.the office is directed to send back the records and proceedings forthwith. parties to co-operate.