Mrs. Hazel May Murphy Vs. L.E. Murphy - 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]. - 2. we have read the evidence recorded in the trial court and are satisfied that the findings of the learned district judge that the respondent has deserted the petitioner and committed adultery as is alleged in the petition are correct. the matter turns upon the proper interpretation of the words 'where the husband and wife reside or last resided together' in sub-section (1) (j)*of section 3, divorce act, and the question is whether the word 'together' governs the word 'reside' as well as the words 'last resided'.we are of opinion that the better construction is to restrict the operation of the word 'together' to the immediately preceding words 'last resided' for as was pointed out by marten j.mootham, j.1. this is a petition under section 17, divorce act for confirmation of a decree of the learned district judge of saharanpur dissolving the marriage of the petitioner with the respondent on the ground of the latter's adultery and desertion. the suit was not defended and there is no appearance for the respondent in this court.2. we have read the evidence recorded in the trial court and are satisfied that the findings of the learned district judge that the respondent has deserted the petitioner and committed adultery as is alleged in the petition are correct.3. the parties were married at rawalpindi in 1943 and it appears that it was there that they last resided together. certainly there is no evidence that, the place where they last resided together was in this state. it is however not in dispute that both the petitioner and the respondent were residing, though not together, at mussoorie at the time the petition was filed, and the question therefore arises whether the learned district judge of saharanpur had jurisdiction to hear this petition. the matter turns upon the proper interpretation of the words 'where the husband and wife reside or last resided together' in sub-section (1) (j)*of section 3, divorce act, and the question is whether the word 'together' governs the word 'reside' as well as the words 'last resided'. we are of opinion that the better construction is to restrict the operation of the word 'together' to the immediately preceding words 'last resided' for as was pointed out by marten j. in d. a. borgonha v. w. c. borgonha, 44 bom. 924 : (a. i. r. (7) 1920 bom. 245):' . . . one very cogent reason for not making the word 'together' govern the word 'reside' is that one can hardly imagine any case in which the husband and wife would be residing together at the date of the presentation of a divorce petition. for one thing to do so would almost inevitably raise the strongest suspicion of collusion or connivance, and lead to the petition being dismissed. for instance, a wife's petition must depend on adultery plus either desertion or cruelty. obviously in no petition founded on desertion could the parties be living together at the date of the petition. and it is difficult to imagine any ease in which a wife who is charging her husband with adultery and cruelty, would still be residing with him.' that case has become the leading authority on the subject and has been followed, so far as we are aware, by all the high courts in india which have had to consider this question. it was followed by a single judge of this court in the case of dora ina eates v. eric nevel eates : air1949 all421 in which most of the earlier authorities are cited. learned counsel has also drawn our attention to two other cases m. m. robey v. a. v. robey : air1931 cal121 and t. a. kershaw v. a. c. kershaw a. i. r. (17) 1930 lah. 916 : (12 lah. 214) in which the same view has been taken by the calcutta and lahore high courts. we are of opinion, therefore, that as both the petitioner and the respondent resided within the jurisdiction of the court of the learned district judge of saharanpur at the date upon which the petition was filed that court had jurisdiction to hear and determine the petition.4. we accordingly confirm the decree of the learned district judge.