Sm. Sheopiari Vs. Devi Prasad - Court Judgment

Excerpt:
criminal - maintainability of maintenance application - section 488 of criminal procedure code, 1898 - wife made application for maintenance - magistrate dismissed the application on grounds that the applicant had instituted a suit for restitution of conjugal rights - reference before the sessions judge - held, inquiry is essential to ascertain whether wife had been living separately by mutual consent and mere institution of suit for restitution of conjugal rights not sufficient to decline maintenance application. - 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]. orderr. singh, j.1. this is a reference by the sessions judge of lucknow recommending that the order of sri v. n. vidyant, magistrate first class, refusing to entertain an application under section 488 cr. p. c. on behalf of shrimati sheopiari be set a'side and the proceedings be transferred to some other competent court.2. it appears that shrimati sheopiari made an anplication against devi prasad for maintenance under section 488, cr. p. c. before the additional city magistrate, lucknow. in the mean time one rameshwar dayal had sued shrimati sheopiari for restitution of conjugal rights in the civil court. an ex parte decree was passed in his favour and the additional city magistrate dismissed her application for maintenance on the ground that there stood a decree for restitution of conjugal rights in favour of one rameshwar dayal against the lady and as such she could not maintain an application for an order of maintenance under section 488, cr. p. c.3. the ex parte decree passed in favour of rameshwar dayal was subsequently set aside and after the decree had been set aside shrimati sheopiari made a second application for maintenance under section 488, cr. p. c., which came up for hearing before sri v. n. vidyant, magistrate first class. the magistrate refused to entertain this application for maintenance on the ground that a similar application made before the additional city magistrate had already been dismissed. srimati sheopiari went in revision to the sessions judge. the sessions judge is of opinion that the mere fact that a suit for restitution of conjugal rights had been instituted by one rameshwar dayal should be no ground for throwing out the application for maintenance made by shrimati sheopiari.4. it is not disputed on behalf of the opposite party in this court that shrimati sheopiari was 'originally the wedded wife of devi prasad. his case was that some three years ago shrimati sheopiari left the protection of her husband devi prasad and began to live with rameshwar dayal as his wife and she was, therefore, not entitled to claim maintenance from him.5. the view taken by the learned sessions judge appears to me to be correct. the mere institution of a suit for restitution of conjugal rights should not be enough to throw out the application of shrimati sheopiari. the learned magistrate ought to have recorded a finding on evidence if shrimati sheopiari had been living apart by mutual consent and the remedy under section 488, cr. p. c. was barred to her under section 488 (4), cr. p. c. no such inquiry was, however, made by the learned magistrate and he took the short cut of throwing out the application.6. the reference is, therefore, accepted and the order passed by sri v. n. vidyant is set aside. the proceedings will be reopened at the stage at which they were dismissed and shall be transferred to some other competent magistrate for disposal according to law.

Judgment:
ORDER

R. Singh, J.

1. This is a reference by the Sessions Judge of Lucknow recommending that the order of Sri V. N. Vidyant, Magistrate first class, refusing to entertain an application under Section 488 Cr. P. C. on behalf of Shrimati Sheopiari be set a'side and the proceedings Be transferred to some other competent Court.

2. It appears that Shrimati Sheopiari made an anplication against Devi Prasad for maintenance under Section 488, Cr. P. C. before the Additional City Magistrate, Lucknow. In the mean time one Rameshwar Dayal had sued Shrimati Sheopiari for restitution of conjugal rights in the Civil Court. An ex parte decree was passed in his favour and the Additional City Magistrate dismissed her application for maintenance on the ground that there stood a decree for restitution of conjugal rights in favour of one Rameshwar Dayal against the lady and as such she could not maintain an application for an order of maintenance under Section 488, Cr. P. C.

3. The ex parte decree passed in favour of Rameshwar Dayal was subsequently set aside and after the decree had been set aside Shrimati Sheopiari made a second application for maintenance under Section 488, Cr. P. C., which came up for hearing before Sri V. N. Vidyant, Magistrate first class. The Magistrate refused to entertain this application for maintenance on the ground that a similar application made before the Additional City Magistrate had already been dismissed. Srimati Sheopiari went in revision to the Sessions Judge. The Sessions Judge is of opinion that the mere fact that a suit for restitution of conjugal rights had been instituted by one Rameshwar Dayal should be no ground for throwing out the application for maintenance made by Shrimati Sheopiari.

4. It is not disputed on behalf of the opposite party in this Court that Shrimati Sheopiari was 'originally the wedded wife of Devi Prasad. His case was that some three years ago Shrimati Sheopiari left the protection of her husband Devi Prasad and began to live with Rameshwar Dayal as his wife and she was, therefore, not entitled to claim maintenance from him.

5. The view taken by the learned Sessions Judge appears to me to be correct. The mere institution of a suit for restitution of conjugal rights should not be enough to throw out the application of Shrimati Sheopiari. The learned Magistrate ought to have recorded a finding on evidence if Shrimati Sheopiari had been living apart by mutual consent and the remedy under Section 488, Cr. P. C. was barred to her under Section 488 (4), Cr. P. C. No Such inquiry was, however, made by the learned Magistrate and he took the short cut of throwing out the application.

6. The reference is, therefore, accepted and the order passed by Sri V. N. Vidyant is set aside. The proceedings will be reopened at the stage at which they were dismissed and shall be transferred to some other competent Magistrate for disposal according to law.