Patnam Vehedullah Khan Vs. P. Ashia Khatoon and anr. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 9. the submission of the learned counsel is well-founded. the full bench clearly laid down that the provisions under section 125, cr. section 3 of the said act clearly envisages that the magistrate can take cognizance of such petition. if the legislature wanted to invest jurisdiction to the family court they would have clearly mentioned that fact in section 3 of the act 25 of 1986. the legislature purposely used the word 'magistrate'.certainly, in respect of mahr and other properties of divorced muslim woman, only the magistrate can adjudicate and the family court has no jurisdiction.k.b. siddappa, j. 1. this revision is filed against the order dated 19.2.1999 passed in m.c. no. 129 of 1998 on the file of the family court, vijayawada.2. the lower court dismissed the m.c. with a direction to the husband to deposit maintenance amount of rs. 2,075/- for iddat period of three months from 19.2.1998 to 18.5.1998, rs. 1,025/- towards mahr amount and costs of rs. 2,500/-were also granted to the wife under sub-section (3) of section 125, cr.p.c. the said amounts were directed to be deposited within a period of one month from the date of the order.3. the above order of the family court is questioned in this revision.4. admittedly, the respondent here is a divorced muslim woman of the petitioner in the revision. the application was filed under section 125, cr.p.c. before the family court with the following prayer :'therefore, the petitioner prays the hon'ble court may be pleased to pass orders directing the respondent to pay rs. 500/- per month from the month of september, 1998 arid also direct the respondent to pay future maintenance at the rate of rs. 500/- per month in the interest of justice and equity.'as stated earlier, as against this prayer the relief mentioned above is granted.5. the learned counsel appearing for the petitioner-husband submitted that there was no prayer for granting most of the reliefs given by the lower court. therefore, the items of relief cannot be sustained.6. in addition to that, the main contention is that the family court has no jurisdiction to entertain the application for grant of maintenance under section 125, cr.p.c. after passing of the muslim women (protection of rights on divorce) act, 1986 (for short, 'the act'). section 3 of the said act now governs the payment of maintenance. the section starts with non-obstante clause. the magistrate is empowered to investigate in the matter. the family court has no jurisdiction to entertain the application.7. for this proposition, reliance was placed on the full bench judgment of this court reported in usman khan bahamani v. fathimunnisa begum, : air1990ap225 . in this case it was decided that the liability of husband to pay maintenance for and during the period of iddat is limited. a divorced muslim woman cannot claim maintenance under section 125, cr.p.c. after passing of the act 25 of 1986.however, the parties can exercise their option for applicability of sections 125 - 128 of the code of criminal procedure under section 5 of the act 25 of 1986.8. the learned counsel submitted that in the case on hand no such application is filed under section 5 of the act. therefore, the provisions of sections 125 - 128, cr.p.c. are not applicable to the facts of this case.9. the submission of the learned counsel is well-founded. the full bench clearly laid down that the provisions under section 125, cr.p.c. are not applicable unless the option was exercised by both the parties under section 5 of the act. therefore, the wife resorting to section 125, cr.p.c. is not correct. the family court cannot entertain application filed under section 125, cr.p.c. section 3 of the said act clearly envisages that the magistrate can take cognizance of such petition. therefore, the family court cannot step in and assume jurisdiction, even though the family court has jurisdiction to entertain application under chapter ix of cr.p.c. by virtue of section 7(2)(a) of the family courts act, 1984 in respect of parties other than the divorced muslim woman.10. the learned counsel also relied upon the bench judgment of kerala high court reported in edavalath avaran koya v. kunnoth mariyam, 1993 crl.lj 1118. the bench after distinguishing the judgment of bombay high court reported in : air1990bom299 , and relying upon the judgment of allahabad high court reported in : air1992all322 , held 'the jurisdiction of judicial first class magistrate cannot in any way be affected by establishment of family court. the provision is complete in itself and does not depend on any other enactment for its enforcement, meaning that provisions in the act have overriding effect on all provisions contained in earlier enactments including family courts act, 1984'11. reliance was also placed on the bench judgment of allahabad high court referred to above in which it was dearly held mat the concerned magistrate has jurisdiction to entertain the application filed by a divorced muslim woman claiming mahr or dowr, and the family court cannot entertain such application and that section 7 of the family courts act cannot be invoked.12. the ratio of the above judgments is quite clear. i am in respectable agreement with the interpretation given to section 3 of the act 25 of 1986. the family courts act was an earlier enactment. if the legislature wanted to invest jurisdiction to the family court they would have clearly mentioned that fact in section 3 of the act 25 of 1986. the legislature purposely used the word 'magistrate'. certainly, in respect of mahr and other properties of divorced muslim woman, only the magistrate can adjudicate and the family court has no jurisdiction.13. in this case as earlier stated that there is no application by both the parties under section 5 of the act, 1986. in such a case, the provision of section 125, cr.p.c. is not applicable and the family court has no jurisdiction to pass the order impugned in this revision. therefore, the order is set aside and the revision is allowed.14. mr. c. padmanabha reddy and mr. venugopal rao learned counsel have assisted this court to come to the above decision. the court acknowledges their assistance with thanks.