Karim Abdul Rehman Shaikh Vs. Shehnaj Karim Shaikh - Court Judgment

Excerpt:
criminal procedure code, 1973 - section 125 and the muslim women (protection of right of divorce) act, 1986 section 54 - can a family court hear an application filed by a divorced muslim woman under section 125 of the cr.p.c. claiming post-ideate period maintenance against her former husband - point referred to full bench for consideration. - 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.v.h. bhairavia, j.1. this petition is preferred against the order of awarding maintenance dated 5.5.1995 passed under section 125 of the criminal procedure code by the family court, pune, in petition e.no. 652 of 1994.2. the petition in the family court was filed by the respondent no. 1, a divorced muslim woman, under section 125 of the criminal procedure code for maintenance. the family court has allowed the said application, and awarded maintenance to respondent no. 1- wife and her two minor children. mr. mulla, learned counsel for the petitioner-husband, has submitted that the aforesaid ruling is contrary to the object and spirit of the muslim women (protection of right of divorce) act, 1986, under which act, the right of a divorced muslim woman to claim maintenance from her former husband under section 125 of the criminal procedure code for the post-ideate period, has been repealed. therefore, if she wants to claim post-ideate period maintenance, she has to apply under section 4 of the said act before the learned magistrate. in the instant case, application under section 125 of the criminal procedure code was filed before the family court and the family court, relying on the ruling of this court in allabuksh karim shaikh v. noorjahan allabuksh shaikh and anr. : (1994)96bomlr761 allowed the said application. this court in paragraph 8 of its said judgment has observed thus:as we rend the relevant provisions of chapter ix of the code of criminal procedure, of the family courts act, 1984, and the muslim women act, 1986, the position appears to us to be as hereunder. a muslim divorced woman may apply for maintenance before a magistrate under section 5 of the muslim women act payable to her only during the period of iddat. she may, thereafter, if still unable to maintain herself, apply for maintenance for the post-ideate period also, before a magistrate, where no family court has been constituted, under chapter ix of the code of criminal procedure and such application shall be governed and disposed of in accordance with the provisions of chapter ix only if both the divorced woman and her former husband declared under section 5 of the muslim women act and choose to be so governed. a divorced woman in need for maintenance for the post-ideate period, may also, if she so chooses, apply to a magistrate under section 4 of the muslim women act for maintenance to be paid lo her from such of her relatives as would be entitled to inherit her properly on her death, or, that failing, by the wakf board. but where a family court has been constituted, such a divorced woman, intending to apply for maintenance under chapter ix of die code of criminal procedure, shall have to apply for maintenance under that chapter in and before the family court and the family court shall have to dispose of such application in accordance with the provisions of that chapter ix. notwithstanding anything in the muslim women act of 1986. for the post-ideate period maintenance, therefore, the divorced muslim woman has clear option either to move a magistrate under section 4 of the muslim women act or lo apply to the family court, if there is one. for maintenance under chapter ix of the code of criminal procedure. it may be noted that while under chapter ix of the code of criminal procedure, there is an upper limit fixed and not exceeding rs. 500/- per month, under section 4 of the muslim women act there is no such limit fixed.therefore, now the question arises for my consideration is:is the family court empowered to entertain an application under section 125 of the criminal procedure code filed by a divorced woman against her former husband for post-ideate period maintenance?3. having gone through the various authorities on this point, the consistent view of the various courts is that since the act came into force, a muslim woman is entitled lo claim post-ideate period maintenance tinder section 4 of the said act and not under section 125 of the criminal procedure code. the view taken by this court in the ease of allabuksh v. noorjahan (supra) is that the family court has power to entertain an application under section 125 of the criminal procedure code by a divorced muslim woman. i have my own doubts in accepting this ruling. therefore, in the interests of fair justice, this matter requires to be referred lo full bench for decision.in this view of the matter, this matter be referred to full bench to decide the following issue:can a, family court hear an application filed by a divorced muslim woman under section 125 of the criminal procedure code, claiming post-ideate period maintenance against her former husband?4. however, since the execution of the order granting maintenance passed by the family court is stayed pending this petition, respondent no. 1- wife is not getting anything towards maintenance from the petitioner-husband. in my view, pending the reference, respondent no. 1- wife should not be kept without any maintenance. in view of this, it is ordered that the said slay is vacated and the petitioner-husband is directed to pay the maintenance as per the order of the family court till the full bench decides the aforesaid issue. however, the order regarding maintenance awarded to the children is confirmed.certified copy is expedited.