STATE OF TAMIL NADU Vs. N SANTHANALAKSHMI

JUDGEMENT

(1.) A subtle as well as an important and interesting question of law arises for our consideration in the above Appeal. The question is as to whether a divorced woman can be said to be a deserted woman so as to entitle her to stake a claim for a seat in the Special Categories reserved for "Deserted Women" in category (ix) of Annexure-I to the prospectus issued for the Tamil Nadu Professional Courses- Medical/Paramedical for 1994-1995.

(2.) (a). The State Government and the Selection Committee for the course in question who were the respondents in the writ petition are the appellants before us. The respondent herein has filed W.P. No. 13987 of 1994 (since reported in 1995-1-L.W. 330 = 1995 Writ L.R. 180) praying for a writ of mandamus, directing the respondents in the writ petition to publish the merit list of selected candidates for the seats reserved for the category of deserted women and allot one seat to her for the M.B.B.S. Course for the academic year 1994-1995. The claim of the respondent before the learned single Judge in the writ petition was that she belonged to a Backward Community, that she was married to one C.P. Easwaramoorty, that on account of his misbehaviour and acts of cruelty she could not continue to live with him and was forced to live away from her husband having been driven out of the family of her husband even within six months from the date of her marriage, that at the time of her marriage she had completed 10th standard only and after she was driven out by her husband she was residing with her parents and continued her studies and successfully passed her Higher Secondary Course (Academic) in the Public Examination held in the year 1994. It was also stated for the respondent that in the meantime, she came to know that her husband got married to one baby and the said lady on her marriage also gave birth through the respondent's husband a female child on 25-10-1993 and since efforts made by the well wishes and parents failed, she was constrained to file H.M.O.P. No. 2 of 1994 on the file of the Court of Subordinate Judge, Sankagiri for divorce and the marriage itself was dissolved by the said Court by granting a Judgment and Decree for divorce on 15-4-1994. (b). It may be stated at this stage that as could be seen from the order of the Sub-Court, dated 15-4-1994 in H.M.O.P. No. 2 of 1994 that the divorce was sought for under Section 13(1)(i) of the Hindu Marriage Act, 1955, that both parties were present before Court, that the respondent to the said petition (the husband of the respondent before us) made an endorsement on the Petition stating that he had no objection is allow the petition filed by his wife and that, therefore, the petition filed by the wife was allowed as prayed for. This aspect has to be specifically referred to on account of the conflicting claims made by the parties appearing on either side regarding the ground of claim or the basis for the grant of a decree for divorce. No doubt, a perusal of the copy of the Petition doubt, a perusal of the copy of the Petition filed before the Sub-Court in H.M.O.P. No. 2 of 1994, made available in the typed set of papers filed on behalf of the respondent before us, would also show that Petition was filed under Section 13(1)(i) of the Hindu Marriage Act, 1955 though it is found stated at the end of paragraph VIII of the Petition that the petitioner therein (respondent herein) has come forward with the said Petition for divorce on the ground of desertion and second marriage. Section 13(1)(i) of the Hindu Marriage Act, 1955 reads "has after the soleminisation of the marriages had voluntary sexual intercourse with any person other than his or her spouse,". During the course of hearing of the appeal before us, we have informed the counsel to first make their submissions on the assumption and footing, without need for adjudicating specifically on the issue, that the decree for divorce was sought both on the grounds of desertion and adultery and obtained as prayed for, for the purpose of testing the legality and propriety of her claim as deserted women, even after the dissolution of the marriage by the grant of a decree for divorce on 15-4-1994, to enable her to be considered as against the special category of seats reserved for "deserted women". (c). Clause 3.5 (vii) of the prospectus reads as hereunder: "Seats reserved for the category of deserted women : No. of seats reserved in M.B.B.S4 The candidate claiming admission against the Category of Deserted Women should produce a Certificate from the Tahsildar of the area that she is a married woman deserted by her husband." As a matter of fact, the respondent produced a Certificate issued by the Tahsildar, Tiruchengode, dated 21-7-1994, which as per the true translated copy furnished on behalf of the respondent reads as hereunder:- CERTIFICATE "Mrs. Santhanalakshmi, daughter of K.P. Nachimuthu, residing at 23-A, Erumaikattuthurai, Komarapalayam Village, Tiruchengode Taluk was married to Thiru. P. Easwaramoorthy, son of Perumal Gounder, residing at Chinniampalayampudur, Bhavani Taluml Periyar District. On enquiry, it was found that Mrs. Santhanalakshmi after obtaining a divorce decree in H.M.O.P. No. 2/94 dated 15-4-1994 on the file of Sub-Court, Sankagiri from P. Easwaramoorthy is now living separately and it is certified that Mrs. Santhanalakshmi is a woman deserted by her husband." The question is as to whether even on the facts stated in the very certificate, the Tahsildar could have certified the respondent to be or the respondent could claim that she is a "deserted Woman" for the purpose of claiming a seat reserved in the special category for "deserted women". (d). The counter affidavit filed on behalf of the 2nd appellant (2nd respondent in the writ petition) discloses that the respondent before us has secured 241.10 marks out of 300 marks (Academic reduced as per formula and Entrance Exam), that the merit list for Special Categories was published on 24-10-1994, that when the respondent submitted her application for admission she did not enclose the Tahsildar's Certificate, that, therefore, her claim could not be considered as against the Special Category an d the only decree copy which was enclosed revealed that she herself sought divorce from her husband and obtained the same and, therefore, she could not be considered against the category of "deserted women". It was also contended for the appellants (respondents in W.P.) among other things, that the four seats earmarked for the special category in question were distributed already to other category in the absence of eligible candidates qualified and were filled up and there was no vacancy available for seats under the category of "deserted women".

(3.) AGGRIEVED, the appellants have filed the above Appeal. As noticed supra, the learned counsel appearing on either side, proceeded at the first instance to make submissions even on the assumption that the decree for divorce be treated as one also on the ground of desertion. Mr. N. Jothi, learned Special Government Pleader for the appellants contended that once the marriage was dissolved by a decree for divorce, even it be on the ground of desertion, on and after the date of dissolution of the marriage, t he respondent cannot be considered to be a "deserted woman" in law or on facts so as to entitle her claim to be considered as against the special category of seats reserved for "deserted women" and that the learned Judge was not right in sustaining the claim of the respondent in this regard. It was also contended for the appellants that at any rate, there was no justification to issue a direction to the appellants to grant a seat to the respondent during the next academic year 1995-1996 since such a dir ection is either likely to prejudice the genuine claim of a candidate for Special Category during the next academic year for no fault of her or that there may not be any reservation also during next academic year since the reservation for special categories are considered every year and allocation made depending upon exigencies of situation as per dictates of policy for that year. Mr. N.R. Chandran, learned Senior Counsel for the respondent, while adopting the reasoning of the learned single Judge in order to sustain the claim on behalf of the respondent, contended that the view taken by the learned single Judge is quite in accordance with law and in as much as justice has been rendered to a deserving candidate no interference is called for in the appeal. The decision reported in A.I.R. 1989 S.C. 1972 (Council of Scientific and Industrial Research v. K.G.S. Bhatt was relied upon in this regard.