LAW FOR ALL

Thursday, July 5, 2012

Whether once permission had been granted under Section 10A of the Act, it would amount to grant of recognition and, thereafter, the medical college/institution, was free to enhance the number of seats without the permission either of the Council or the Central Government. 50. We, therefore, have no hesitation in setting aside the judgments, both of the learned Single Judge as also that of the Division Bench of the High Court, and the directions given to increase the number of seats from 100 to 150 in the MBBS course run by the writ petitioners. Since the 2000 Regulations provide for a newly-established medical college/institution to seek permission each year to continue with the MBBS course till the first batch of the students graduated, in our view, the position is quite clear that the recognition referred to in Sections 10B and 11 of the 1956 Act would have to relate to the grant of recognition to a medical institution under Section 11 for the purpose of recognition of its qualifications as a medical degree, which would entitle the holder thereof to practise medicine. 51. Consequently, upon setting aside the judgments of the learned Single Judge and the Division Bench and the directions contained therein, we also make it clear that this will not prevent the medical colleges/institutions from applying for increase in the number of students, provided such application fulfils the conditions and criteria of Section 10A and the Regulations framed thereunder by the Medical Council of India. 52. The appeals arising out of SLP(C)Nos.28996 and 30332 of 2011, preferred by the Medical Council of India and the appeal arising out of SLP(C)No.30338 of 2011, preferred by the Board of Governors, against the judgment and order dated 13th October, 2011, passed by the Delhi High Court in Letters Patent Appeal Nos. 820, 819 and 816 of 2011 respectively, along with the appeal arising out of SLP(C)No.3732 of 2012, preferred by the Medical Council of India against the judgment and order dated 14th November, 2011, passed by the Punjab and Haryana High Court in Civil Writ Petition No.16235 of 2011, are allowed. The impugned judgments and orders passed by the Delhi High Court, as also the Punjab and Haryana High Court, are set aside. 53. Consequently, Writ Petition (C) No.457 of 2011, filed by the School of Medical Sciences & Research, Sharda University; Writ Petition (C) No.458 of 2011, filed by Teerthanker Mahaveer Institute of Management & Technology Society, Moradabad; and Writ Petition (C) No.489 of 2011, filed by Dashmesh Educational Charitable Trust, are dismissed, as the reliefs prayed for therein are in direct conflict with the provisions of Section 10A of the 1956 Act and Regulation 8(3) of the 1999 Regulations. 54. Having regard to the facts involved, all the parties in each of the matters will bear their own costs.

|REPORTABLE |

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4911 OF 2012
(Arising out of SLP(C)No.28996 of 2011)

1 Medical Council of India … Appellant

Vs.

2 Rama Medical College Hospital &

3 Research Centre, Kanpur & Anr. … Respondents

WITH

CIVIL APPEAL NO.4909 OF 2012
(Arising out of SLP(C)No.30332 of 2011)

AND

CIVIL APPEAL NO.4910 OF 2012
(Arising out of SLP(C)No.30338 of 2011)

AND

CIVIL APPEAL NO.4912 OF 2012
(Arising out of SLP(C)No.3732 of 2012)

AND

WRIT PETITION (CIVIL) NOS.457, 458 AND 489 OF 2011

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The Indian Medical Council Act, 1956, hereinafter referred to as the
“1956 Act”, was enacted, inter alia, to provide for the reconstitution of
the Medical Council of India and the maintenance of a Medical Register for
India and for matters connected therewith. Section 3 of the Act empowered
the Central Government to constitute a Council, which as per Section 4(1)
means the Medical Council of India, hereinafter referred to as the “Medical
Council”, constituted under the 1956 Act.

3. In these matters, we are mainly concerned with the interpretation of
Sections 10A and 11 of the 1956 Act. Section 10A of the 1956 Act, which
provides for permission for establishment of new medical colleges and new
courses of study, is extracted hereinbelow :

“10A. Permission for establishment of new medical college, new course
of study.- (1) Notwithstanding anything contained in this Act or any
other law for the time being in force:-

a) no person shall establish a medical college; or

b) no medical college shall –

(i) open a new or higher course of study or training (including
a post-graduate course of study or training) which would
enable a student of such course or training to qualify
himself for the award of any recognised medical
qualification; or

(ii) increase its admission capacity in any course of study or
training (including a post-graduate course of study or
training),

except with the previous permission of the Central Government obtained
in accordance with the provisions of this Section.

Explanation 1.-For the purposes of this Section, "person"
includes any University or a trust but does not include the Central
Government.

Explanation 2.- For the purposes of this Section "admission
capacity" in relation to any course of study or training (including
post-graduate course of study or training) in a medical college, means
the maximum number of students that may be fixed by the Council from
time to time for being admitted to such course or training.

(2) (a) Every person or medical college shall, for the purpose
of obtaining permission under sub-Section (1), submit to the Central
Government a scheme in accordance with the provisions of clause (b)
and the Central Government shall refer the scheme to the Council for
its recommendations.
(b) The scheme referred to in clause (a) shall be in such form
and contain such particulars and be preferred in such manner and be
accompanied with such fee as may be prescribed.

(3) On receipt of a scheme by the Council under sub-Section (2)
the Council may obtain such other particulars as may be considered
necessary by it from the person or the medical college concerned, and
thereafter, it may, -

a) if the scheme is defective and does not contain any
necessary particulars, give a reasonable opportunity to the
person or college concerned for making a written
representation and it shall be open to such person or
medical college to rectify the defects, if any, specified
by the Council;

b) consider the scheme, having regard to the factors referred
to in sub-Section (7), and submit the scheme
together with its recommendations thereon to the Central
Government.

(4) The Central Government may, after considering the scheme
and the recommendations of the Council under sub-Section (3) and after
obtaining, where necessary, such other particulars as may be
considered necessary by it from the person or college concerned, and
having regard to the factors referred to in sub-Section (7), either
approve (with such conditions, if any, as it may consider necessary)
or disapprove the scheme and any such approval shall be a permission
under sub-Section (1):

Provided that no scheme shall be disapproved by the Central
Government except after giving the person or college concerned a
reasonable opportunity of being heard:

Provided further that nothing in this sub Section shall prevent
any person or medical college whose scheme has not been approved by
the Central Government to submit a fresh scheme and the provisions of
this Section shall apply to such scheme, as if such scheme has been
submitted for the first time under sub-Section (2).

(5) Where, within a period of one year from the date of
submission of the scheme to the Central Government under sub-Section
(2), no order passed by the Central Government has been communicated
to the person or college submitting the scheme, such scheme shall be
deemed to have been approved by the Central Government in the form in
which it had been submitted, and accordingly, the permission of the
Central Government required under sub-Section (1) shall also be deemed
to have been granted.

(6) In computing the time-limit specified in sub-Section (5),
the time taken by the person or college concerned submitting the
scheme, in furnishing any particulars called for by the Council, or by
the Central Government, shall be excluded.

(7) The Council, while making its recommendations under clause
(b) of sub-Section (3) and the Central Government, while passing an
order, either approving or disapproving the scheme under sub-Section
(4), shall have due regard to the following factors, namely:-

a) whether the proposed medical college or the existing medical
college seeking to open a new or higher course of study or
training, would be in a position to offer the minimum
standards of medical education as prescribed by the Council
under Section 19A or, as the case may be, under Section 20
in the case of post-graduate medical education;

b) whether the person seeking to establish a medical college
or the existing medical college seeking to open a new or
higher course of study or training or to increase its
admission capacity has adequate financial resources;

c) whether necessary facilities in respect of staff, equipment,
accommodation, training and other facilities to ensure
proper functioning of the medical college or conducting the
new course or study or training or accommodating the
increased admission capacity, have been provided or would
be provided within the time-limit specified in the scheme;

d) whether adequate hospital facilities, having regard to the
number or students likely to attend such medical college or
course of study or training or as a result of the increased
admission capacity, have been provided or would be provided
within the time-limit specified in the scheme;

e) whether any arrangement has been made or programme drawn to
impart proper training to students likely to attend such
medical college or course of study or training by persons
having the recognised medical qualifications;

f) the requirement of manpower in the field of practice of
medicine; and

g) any other factors as may be prescribed.

(8) Where the Central Government passes an order either
approving or disapproving a scheme under this Section, a copy of the
order shall be communicated to the person or college concerned.”

4. It would be seen from the above that after the promulgation of the
1956 Act, no person would be entitled to establish a Medical College except
in the manner provided in Section 10A, which, in addition provides that no
medical college shall open a new or higher course of study or training,
including a post-graduate course of training, which would enable a student
of such course or training to qualify himself for the award of recognised
medical qualification, except with the previous permission of the Central
Government. The said prohibition also extends to the increase in admission
capacity in any course of study or training, including post-graduate study
or training, except with such previous permission of the Central
Government. Sub-Section (2) categorically provides that every person or
medical college shall, for the purpose of obtaining permission under Sub-
Section (1), submit to the Central Government a scheme in accordance with
the provisions of Clause (b) and the Central Government shall refer the
scheme to the Medical Council for its recommendations. The said Council
has been authorized to scrutinize the scheme and make such suggestions, as
may be necessary, to rectify any defect and, thereafter, to forward the
same, together with its recommendations, to the Central Government. Sub-
Section (7) provides that the Council while making its recommendations
shall take into consideration the factors mentioned therein.
5. In other words, although, the Central Government is the authority to
grant sanction to the establishment of a medical college, it is the Medical
Council of India which plays a major role in deciding whether such sanction
could be given by the Central Government.

6. Section 11 of the 1956 Act deals with recognition of medical
qualifications granted by universities or medical institutions in India.
The same also being relevant to the facts of this case, is reproduced
hereinbelow :

“11. Recognition of medical qualifications granted by Universities or
medical institutions in India.- (1) The medical qualifications granted
by any University or medical institution in India which are included
in the First Schedule shall be recognised medical qualifications for
the purposes of this Act.

(2) Any University or medical institution in India which grants a
medical qualification not included in the First Schedule may apply to
the Central Government to have such qualification recognised, and the
Central Government, after consulting the Council, may, by notification
in the Official Gazette, amend the First Schedule so as to include
such qualification therein, and any such notification may also direct
that an entry shall be made in the last column of the First Schedule
against such medical qualification declaring that it shall be a
recognised medical qualification only when granted after a specified
date.”

7. In addition to the aforesaid provisions, Section 10-B of the 1956 Act
is also of significance as it deals with non-recognition of medical
qualifications in certain cases. For the sake of reference, the same is
also extracted hereinbelow :-

“10-B. Non-recognition of medical qualifications in certain cases.– (1)
Where any medical college is established except with the previous
permission of the Central Government in accordance with the provision
of Section 10A, no medical qualification granted to any student of such
medical college shall be a recognised medical qualification for the
purposes of this Act.

(2) Where any medical college opens a new or higher course of study
or training (including a post-graduate course of study or training)
except with the previous permission of the Central Government in
accordance with the provisions of Section 10A, no medical qualification
granted to any student of such medical college on the basis of such
study or training shall be a recognised medical qualification for the
purposes of this Act.

(3) Where any medical college increases its admission capacity in
any course of study or training except with the previous permission of
the Central Government in accordance with the provision of Section 10A,
no medical qualification granted to any student of such medical college
on the basis of the increase in its admission capacity shall be a
recognised medical qualification for the purposes of this Act.

Explanation – For the purposes of this Section, the criteria for
identifying a student who has been granted a medical qualification on
the basis of such increase in the admission capacity shall be such as
may be prescribed.”

8. It is amply clear from Section 10B that if a Medical College is
established, except with the previous permission of the Central Government,
as provided under Section 10A, no medical qualification granted to any
student of such medical college shall be recognized as a medical
qualification for the purposes of the Act.

9. At this juncture, reference may be made to the “Establishment of
Medical College Regulations, 1999”, framed by the Medical Council of India
in exercise of powers conferred under Section 10A read with Section 33 of
the 1956 Act, and notified on 30th July, 1999. The same came into force on
their publication in the Official Gazette on 28th August, 1999, and is
hereinafter referred to as the “1999 Regulations”.

10. Regulation 4 of the 1999 Regulations, inter alia, provides that
applications for permission to set up Medical Colleges are to be submitted
to the Secretary (Health), Ministry of Health and Family Welfare,
Government of India, along with a non-refundable application fee of Rs.3.5
lakhs in the form of a demand draft/pay order in favour of the Medical
Council of India for Central and State Government Colleges and Rs.7 lakhs
for private sector medical colleges and institutions. Regulation 5
provides that applications received by the Ministry of Health and Family
Welfare are to be referred to the Medical Council for registration and
evaluation and recommendations. Regulations 6 and 7 provide that after
evaluation, the Council shall send a factual report to the Central
Government with its recommendations to issue or not to issue Letters of
Intent. Regulation 8 of the 1999 Regulations is the provision for grant of
permission and since it is of considerable significance to the issue
involved in these proceedings, the same is reproduced hereinbelow :

“8. GRANT OF PERMISSION:

(1) The Central Government on the recommendation of the Council may
issue a Letter of Intent to set up a new medical college with
such conditions or modifications in the original proposal as
may be considered necessary. This letter of Intent will also
include a clear cut statement of preliminary requirements to
be met in respect of buildings, infrastructural facilities,
medical and allied equipments, faculty and staff before
admitting the first batch of students. The formal permission
may be granted after the above conditions and modifications
are accepted and the performance bank guarantees for the
required sums are furnished by the person and after
consulting the Medical Council of India.

(2) The formal permission may include a time bound programme for the
establishment of the medical college and expansion of the
hospital facilities. The permission may also define annual
targets as may be fixed by the Council to be achieved by the
person to commensurate with the intake of students during the
following years.

(3) The permission to establish a medical college and admit students
may be granted initially for a period of one year and may be
renewed on yearly basis subject to verification of the
achievements of annual targets. It shall be the
responsibility of the person to apply to the Medical Council
of India for purpose of renewal six months prior to the
expiry of the initial permission. This process of renewal of
permission will continue till such time the establishment of
the medical college and expansion of the hospital facilities
are completed and a formal recognition of the medical college
is granted. Further admissions shall not be made at any stage
unless the requirements of the Council are fulfilled. The
Central Government may at any stage convey the deficiencies
to the applicant and provide him an opportunity and time to
rectify the deficiencies.

(4) The council may obtain any other information from the proposed
medical college as it deems fit and necessary.”

11. The above Regulation makes it clear that irrespective of whether the
applicant is the Central Government or a State Government or a private
person, the Central Government may, on the recommendation of the Medical
Council, issue a Letter of Intent to set up a new medical college and
formal permission may be granted initially for a period of one year and may
be renewed on yearly basis subject to verification of the achievements of
annual targets, once the conditions and modifications indicated in the
Letter of Intent are accepted and after consulting the Medical Council of
India. Sub-regulation (3) is important for our purpose as it also related
to certain other Regulations published by the Medical Council in 2000. It
provides, without any ambiguity that the provision to establish a medical
college and to admit students may be granted initially for a period of one
year and may be renewed on yearly basis subject to verification of the
achievement of annual targets. It may be noted that Section 10A speaks of
permission and not recognition on a year to year basis. Recognition
follows once the newly-established medical colleges/institutions
satisfactorily complete five years with the graduation of the first batch
of students admitted to the institution when initial permission is granted.
It also provides with complete clarity that it shall be the responsibility
of the applicant to apply to the Medical Council for renewal of permission
six months before the expiry of the initial permission and that the process
of renewal of permission will continue till all the required formalities
are completed and a formal recognition of the medical college is granted.

12. From the aforesaid provisions it is very clear that recognition to a
degree awarded by a newly-established medical college can be given only
after all the requirements for the establishment of the medical college and
expansion of the hospital facilities are completed. It has also been
stipulated that further admissions shall not be made at any stage unless
the requirements of the Council are fulfilled.

13. Reference may also be made to the Regulations framed by the Medical
Council of India relating to opening of higher courses of study and
increase of admission capacity in medical colleges and published by the
Medical Council of India under notification dated 14th August, 2000. The
same are known as “The Opening of a New or Higher Course of Study or
Training (including Post-Graduate Course of Study or Training) and Increase
of Admission Capacity in any Course of Study or Training (including a Post-
Graduate Course of Study Or Training) Regulations, 2000”, hereinafter
referred to as “the 2000 Regulations”, which came into force on 7th
October, 2000. Thereafter, Regulation 3, which provides for permission for
establishment of a new or higher course of study, etc., reads as follows :-

“(3) The permission for establishment of a new or higher course of
study, etc. -

No medical college, shall –

a) open a new or higher course of study or training (including a
post-graduate course of study or training) which would enable a
student of such course or training to qualify himself for the
award of any recognized medical qualification; or

b) increase admission capacity in any course of study or training
(including a post-graduate course of study or training); except
after obtaining the previous permission of the Central
Government by submitting Scheme annexed to these regulations.”

14. Regulation 3 of Part I of the said Regulations sets out the
“Qualifying Criteria” which provides as follows :

“QUALIFYING CRITERIA :

The medical college/institution shall qualify for opening a New
or Higher Course of Study or Training (including a Post-graduate
Course of Study or Training) in the medical colleges/institutions if
the following conditions are fulfilled :

1. (1) The medical college/institution must be recognised by the
Medical Council of India for running Bachelor of Medicine and Bachelor
of Surgery/Post-graduate Course; however, the medical
college/Institute which is not yet recognised by the Medical Council
of India for the award of MBBS Degree may apply for starting of a Post-
Graduate Course in pre-clinical and para-clinical subjects of Anatomy,
Physiology, Biochemistry, Pharmacology, Pathology, Microbiology,
Forensic Medicine and Community Medicine at the time of third renewal
– i.e. along with the admission of fourth batch for the MBBS Course”;

[Emphasis Supplied]

15. Regulation 3 of Part II of the Regulations, dealing with
Qualification Criteria initially provided that a medical
college/institution would qualify to apply for increasing the number of
admissions in MBBS/PG Diploma/Degree/Higher Speciality Course in the
existing medical college/institution, if it fulfilled certain conditions,
one of which was that the medical college/Institution had been recognized
by the Medical Council of India as being capable of running such courses.
The aforesaid paragraph was, subsequently substituted by the following :

“The medical college/institution must be recognized by the Medical
Council of India for running Bachelor of Medicine and Bachelor of
Surgery/Post-Graduate Course; however, the Medial College/Institute
which is not yet recognized by the Medical Council of India for the
award of MBBS Degree may apply for starting of a Post-Graduate Course
in pre-clinical and para-clinical subjects of Anatomy, Physiology,
Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine
and Community Medicine at the time of fourth renewal – i.e. along with
the admission of fifth batch for the MBBS Course.”
[Emphasis Supplied]

16. It is in the aforesaid background that the Medical Council of India
filed Special Leave Petition (Civil) No.28996 of 2011, and two other
Special Leave Petitions, which are being heard along with three Writ
Petitions filed by private institutions claiming the right to increase
their admission capacity.

17. Appearing on behalf of the Medical Council of India, Mr. Nidhesh
Gupta, learned Senior Advocate, referred to the relevant provisions of the
1956 Act, which have been referred to and reproduced hereinabove. Mr. Gupta
relied heavily on the requirements to be fulfilled by the Applicant
colleges for obtaining Letter of Intent and Letter of Permission for
establishment of new medical colleges and yearly renewals under Section 10A
of the Indian Medical Council Act, 1956, published by the Medical Council
of India and approved by the Central Government in its Ministry of Health &
Family Welfare vide letter dated 13th October, 2009. Laying stress on the
requirements to be fulfilled for yearly renewals under Section 10A of the
1956 Act, Mr. Gupta also referred to the 2000 Regulations, with particular
reference to Regulation 3 of Part I of the Regulations dealing with
Qualification Criteria as set out hereinabove. Mr. Gupta submitted that it
would be clear from the substituted Sub-Regulation (1) of Regulation 3 that
it was always the intention of the Central Government and the Medical
Council of India that for the purpose of increase in the number of
admissions in the different courses, the medical college/institution had to
be recognized by the Medical Council of India of being capable of running
Bachelor of Medicine and Bachelor of Surgery/Post-Graduate Courses. Mr.
Gupta urged that the said clause also provides that even in cases of
medical colleges and institutes, which were not yet recognized by the
Medical Council of India for the award of MBBS degree, they could also
apply for increase of intake in the Post-Graduate Courses at the time of
fourth renewal i.e. along with the admission of the fifth batch for the
MBBS Course. Mr. Gupta submitted that the said provision makes it very
clear that degrees awarded by medical colleges and institutions could not
be recognized prior to the completion of the five year course and that only
at the time of the fourth renewal, namely, for the final year course, could
an application be made for such purpose along with the admission of the
fifth batch for the MBBS Course, or in other words, with the admission of
the final year students of the MBBS Course. Mr. Gupta submitted that the
said provisions unambiguously indicate that without completion of the five-
year course and the graduation of the first batch of MBBS students, a
medical college or institution could not be recognized for the purposes of
Section 10A or 11 of the 1956 Act.

18. In addition to what has been mentioned hereinabove, Mr. Gupta laid
special stress on Regulation 8 of the 1999 Regulations relating to grant of
permission for setting up of a new medical college. He laid special stress
on Sub-Regulation 3, extracted hereinbefore, which provides that the
permission to establish a medical college and admit students may be granted
initially for a period of one year and may be renewed on yearly basis,
subject to verification of the achievements of annual targets. The said
Regulation further provides that, for the purpose of renewal, an
application would have to be made to the Medical Council of India at least
six months prior to the expiry of the initial permission and that the
process of renewal of permission would continue till such time as the
establishment of the medical college and expansion of the hospital
facilities are not completed and a formal recognition of the medical
college is not granted. Mr. Gupta also laid stress on the further
provision contained in the said Regulation to the effect that further
admissions would not be made at any stage, unless the requirements of the
Council are fulfilled. The said submissions were made in the light of
Regulation 3 of Part II dealing with the question of “qualification
criteria”, whereunder it has been provided that the medical
college/institution must be recognised by the Medical Council of India for
running Bachelor of Medicine and Bachelor of Surgery/Post-Graduate Courses.
The said Regulation further provides for fourth renewal, along with the
admission of the fifth batch for the MBBS Course. Mr. Gupta submitted that
the aforesaid provisions were sufficient to prove his case that recognition
of the degree awarded by the newly-established medical college could only
be given by the Central Government after the first batch of students of the
MBBS Course had completed the said Course and recommendations had been made
by the Medical Council to grant such recognition.

19. In support of his submissions, Mr. Gupta referred to and relied upon
several decisions of this Court. Referring to the three-Judge Bench
decision of this Court in the case of Medical Council of India Vs. State of
Karnataka & Ors. [(1998) 6 SCC 131], Mr. Gupta submitted that one of the
questions which fell for decision in the said case was the extent of the
powers of the Medical Council of India to fix the admission capacity in the
medical colleges/institutions and its role in regard to the increase in
number of admissions in such institutions. One other question which also
fell for consideration was with regard to the status of the regulations
framed by the Medical Council under the 1956 Act.

20. On the first issue, one question which was raised was whether the
directions given by the Medical Council under the Regulations framed by it
were mandatory or directory in character. In this connection, this Court
had occasion to consider its decision in State of M.P. Vs. Nivedita Jain
[(1981) 4 SCC 296], in which it had, inter alia, been held that all the
Regulations framed by the Medical Council of India under the 1956 Act, were
directory in nature. While considering the matter, this Court held that
the Indian Medical Council Act is relatable to Entry 66 of List I and
prevails over any State enactment to the extent the State enactment is
repugnant to the provisions of the said Act, even though the State Act may
be relatable to Entry 25 or 26 of the Concurrent List. This Court further
held that Regulations framed under Section 33 of the 1956 Act, with the
previous sanction of the Central Government, are statutory and had been
framed to carry out the purposes of the Act and for various other purposes
mentioned in Section 33. This Court further held that if a Regulation
falls within the purposes referred to under Section 33 of the Act, it would
have statutory force. It was ultimately held that the State Acts, and in
the said case, the Karnataka Universities Act and the Karnataka Capitation
Fee Act, would have to give way to the Indian Medical Council of India Act,
1956, which was a Central Act.

21. The next case referred to by Mr. Gupta is a decision of the
Constitution Bench in several writ petitions in which the lead writ
petition, being No.290 of 1997, was filed by Dr. Preeti Srivastava & Anr.
against the State of M.P. & Ors. [(1999) 7 SCC 120]. Some of the questions
which fell for the determination of the Constitution Bench were similar to
those which had been taken up and decided in Nivedita Jain’s case (supra).
While 4 out of 5 Judges were unanimous on the issue that by virtue of Entry
66 of List I and Entry 25 of List III, the State’s competence to control or
regulate higher education is subject to the standards so laid down by the
Union of India, the dissenting view taken by one of the Hon’ble Judges was
that while the Parliament was competent to authorize the Medical Council of
India to prescribe basic standards of eligibility and qualification for
admission to the Post-Graduate Courses under the Medical Council Act, the
States were fully competent to control admission to Post-Graduate Medical
Courses in the absence of any central legislation on these aspects. The
majority view was similar to the view expressed in the decision in the
Medical Council of India case (supra). It was further held that in view of
Entry 66 of List I, a State has the right to control education, including
medical education, so long as the field is not occupied by any Union List
entry. Secondly, the State, cannot, by controlling education in the State,
encroach upon the standards in institutions for higher education, because
the same was exclusively within the purview of the Union Government.
Distinguishing various earlier decisions of this Court in the cases of
Minor P. Rajendran Vs. State of Madras [AIR 1968 SC 1012]; Chitra Ghosh Vs.
Union of India [(1969) 2 SCC 228]; State of A.P. Vs. Lavu Narendranath
[(1971) 1 SCC 607]; and Ambesh Kumar (Dr.) Vs. Principal, L.L.R.M. Medical
College [(1986) Supp. SCC 543], the Constitution Bench criticized the
decision rendered in Nivedita Jain’s case (supra). Apart from the above,
the majority view was that the power vested in the Medical Council under
Section 20 of the 1956 Act, to prescribe the minimum standards for Post-
Graduate education, was not merely advisory in nature, but that the
universities were bound to abide by the standards prescribed. It was also
the majority view that the norms had to be laid down by the Medical Council
for determining reservation of seats for SCs/STs/OBCs and minimum
qualifying marks for the candidates had also to be prescribed.

22. In his dissenting judgment, Justice S.B. Majmudar held that the
provisions of Section 20 read with Section 33 empowers the Medical Council
to lay down basic requirements of quantifications and eligibility
conditions and once the same was done, it was for the States under Entry 25
of List III to control admission and to lay down the criteria for
shortlisting the eligible candidates, since Parliament had not legislated
on this aspect. The Hon’ble Judges representing the majority view made it
clear that under the 1956 Act, the Medical Council had been set up as an
expert body to control the minimum standards of medical education,
including Post-Graduate medical education, and to regulate their
observance. Their Lordships also held that the Council had implicit power
to supervise the qualifications or eligibility standards for admission into
medical institutions and that the Act provided for an overall vigilance by
the Medical Council to prevent sub-standard entrance qualifications for
medical courses. It was further held that the scheme of the 1956 Act did
not give an option to the universities to follow or not to follow the
standards laid down by the Medical Council.

23. Reference was also made to the decision rendered by a Bench of two
Judges in K.S. Bhoir Vs. State of Maharashtra & Ors. [(2001) 10 SCC 264],
which was heard along with some other Civil Appeals, where the issues were
common. The first issue raised and deliberated upon was the proposed one-
time increase in admission capacity in medical colleges. Striking out the
State provision, this Court held that the non-obstante clause contained in
Section 10A(1) means that an increase in admission capacity in a medical
college is prohibited, unless previous permission is obtained from the
Central Government in accordance with the recommendation of the Medical
Council of India. Their Lordships also observed that the entire scheme of
Section 10A of the Act had to be read in consonance with the other Sub-
Sections to further the object behind the amending Act which was to achieve
the highest standard of medical education. Their Lordships observed that
the objective could be achieved only by ensuring that a medical college had
the requisite infrastructure to impart medical education. In the facts of
the said case and in view of Section 10A(1), Their Lordships ultimately
held that the one-time increase proposed by the State Government in the
admission capacity in the various medical colleges, should have been
accompanied by a scheme prepared in accordance with the Act and the
Regulations and submitted to the Central Government. Their Lordships also
held that in the absence of any scheme submitted to the Central Government
in regard to the one-time increase in the admission capacity in the medical
colleges, the Central Government was justified in refusing permission for
the same.

24. The next decision referred to by Mr. Gupta was that rendered in the
case of Govt. of A.P. & Anr. Vs. Medwin Educational Society & Ors. [(2004)
1 SCC 86], wherein the same view, as was expressed in the decision in K.S.
Bhoir’s case, was reiterated. It was reiterated that the decision of the
State Government in the matter was not final, as the final decision had to
be taken by the Central Government on the basis of the recommendations of
the Medical Council under the relevant provisions of the Indian Medical
Council Act, 1956.

25. Mr. Gupta lastly submitted that it is settled law that an individual
State is entitled to legislate on any of the Entries contained in the
Concurrent List even if there was in existence a central law on the said
subject, but in case of repugnancy, the law enacted by the State would have
to give way to the central law. Mr. Gupta urged that the Division Bench of
the High Court had erred in interpreting the use of the expression “formal
recognition” in Sub-Regulation (3) of Regulation 8 of the 1999 Regulations,
and had erroneously held that the same could be preceded by grant of adhoc
recognition, which could subsequently be converted into a formal
recognition, as contemplated by Section 11 of the 1956 Act. Mr. Gupta also
urged that the decision of the Division Bench of the High Court concurring
with the reasoning of the learned Single Judge that the Regulation does not
contemplate that a college must be recognised to award degrees, i.e., it
does not contemplate recognition under Section 11 of the 1956 Act and that
it is permissible in a college to effect increase in the admission
capacity, even at the stage when it has permission/recognition under
Section 10A of the 1956 Act, was wholly erroneous and was liable to be
struck down.

26. Mr. Gupta pointed out from a number of decisions of this Court that
in an extraordinary case the Court may itself pass an order to give
directions which the Government or public authority should have passed or
issued. Mr. Gupta submitted that having held as much, the learned Single
Judge had quite wrongly issued a mandamus to increase the capacity
pertaining to the MBBS course from 100 to 150 seats in each of the three
colleges, thus wandering into the territory of the Medical Council of India
which had the necessary expertise and the authority under the Regulations
to evaluate as to whether the medical institution was capable of catering
to more students than initially envisaged. Mr. Gupta submitted that while
increasing the number of students from 100 to 150, the Court not only acted
beyond its jurisdiction in giving such direction, but it failed to take
into consideration the fact that under the relevant regulations it was only
the Medical Council which could have allowed such increase, once it was
satisfied that the concerned institution had proper facilities to support
such an increase.

27. Mr. Gupta, therefore, urged that since the process adopted by the
learned Single Judge, which was affirmed by the Division Bench of the High
Court, being contrary to the Rules and Regulations in respect of the issues
raised in the appeals, the same could not be sustained and were liable to
be set aside.

28. Mr. T.S. Doabia, learned Senior Advocate, who appeared for the Union
of India, adopted the submissions made by Mr. Nidhesh Gupta and added that
the scheme for granting permission to establish new medical
colleges/institutions and also for granting permission to increase the
number of seats in the institution, made it quite clear that it was only
the Central Government, acting on the recommendation of the Medical Council
of India, which could either grant permission for the establishment of a
new medical institution or grant recognition to the institution itself,
once the first batch of students admitted had completed their fifth year
and had graduated. Mr. Doabia submitted that this was a scheme which had
been framed both under the Act and the Rules and Regulations framed
thereunder and the Medical Council of India and the Union of India had
complete say in the matter. The inclusion of a third party was not
contemplated under the provisions of Sections 10A or 10B of the 1956 Act.
Accordingly, the mandamus issued by the learned Single Judge of the High
Court, which was affirmed by the Division Bench, was liable to be set
aside.

29. Mr. Dushyant Dave, learned Senior Advocate appearing for the School
of Medical Sciences and Research, Sharda Education Trust, the Respondent
No.1 in SLP(C)No.30338 of 2011, raised the question as to whether it could
have been the intention of the legislature to grant year to year
recognition when a medical college was newly-established, till the first
batch of students graduated therefrom after five years. Questioning the
reasonability of such a view, Mr. Dave submitted that once permission was
granted to a medical college/institution to commence classes, it would be
quite absurd to accept the reasoning that such permission would have to be
renewed annually, since after being satisfied that the institution was
capable of running a medical course, permission had been granted to
commence the classes for the first year.

30. Referring to Sections 10A(1)(b) and (4), Mr. Dave pointed out that
the said provisions contemplated a one-time recognition and a citizen’s
inherent right to establish medical colleges cannot be curtailed by the
provisions for grant of year to year recognition. Mr. Dave also urged that
under the garb of exercising its powers under Section 19 of the 1956 Act,
the Council could not assert that it could also regulate the manner in
which the recognition was to be granted.

31. Mr. Dave submitted that the provisions of Section 19A could not be
read into the provisions of Section 10A for permission to establish a new
medical college or new course of study, as otherwise the grant of
recognition from year to year would deter students from taking admissions
in the medical college on account of the uncertainty of being able to
continue the MBBS course in the event recognition was not granted for the
subsequent year.

32. Mr. Dave, however, confined his submissions only to the question of
increase in the number of students, in respect whereof he submitted that
there could not be any fetters. Mr. Dave contended that the curtailment of
the right of an institution to increase its admission capacity in any
course of study or training, including a Post-Graduate Course of study or
training, except with the previous permission of the Central Government,
was in violation of the provisions of Article 19(1)(g) of the Constitution,
as such prohibition was not only illogical, but was unreasonable also. Mr.
Dave submitted that if permission could be granted to admit 100 students,
there could be no logical reason as to why, in order to increase the number
of students/seats, an institution would have to wait for five years before
recognition was granted to the institution by the Central Government on the
recommendation of the Medical Council.

33. Drawing an analogy with the provisions of Order XXXIX Rules 1, 2 and
3 of the Code of Civil Procedure, 1908, Mr. Dave submitted that it would
always be prudent to look into the matter at length before granting ad-
interim orders. According to Mr. Dave, before imposing conditions
regarding grant of recognition from year to year, it would be more
pragmatic to think over the matter with greater intensity before uniformly
contending that a newly-established medical college/institution would have
to seek fresh permission/recognition each year, before being finally
granted recognition after the fifth year, when the first batch of students
would graduate from the institution.

34. In support of his submission, Mr. Dave firstly referred to the
decision of this Court in Shiv Kumar Chadha Vs. Municipal Corporation of
Delhi [(1993) 3 SCC 161], in which a three-Judge Bench of this Court, while
considering the provisions of Order XXXIX Rule 3 C.P.C. and the proviso
thereto held that the proviso had been introduced in order to compel the
Court to give reasons as to why the provisions relating to notice was being
dispensed with. Mr. Dave contended that instead of prohibiting the
creation of new seats in the medical college/institution, the concerned
authorities should sit and ponder over the matter to come to a conclusion
as to whether such a bar was necessary when the institution was already
running a medical course with a sizable number of students.
35. Mr. Dave urged that the doctrine of proportionality has been
introduced by the Courts to ensure that the action taken against any
individual did not transgress the constitutional provisions relating to the
right of an individual to establish medical colleges/institutions as a
concomitant of the right contained in Article 19(1)(g) of the Constitution.
Mr. Dave concluded his submissions by urging that the attempt to impose
extra-constitutional obstructions to a person’s right to establish a
medical college/ institution, could not have been the intention of the
framers of the Constitution, who all were in favour of the right to
practise any profession or trade and included the same as a fundamental
right under Part III of the Constitution.

36. While endorsing the submissions advanced by Mr. Dave, Dr. Abhishek
Manu Singhvi, learned Senior Advocate, who appeared for the Respondent
No.1, Rama Medical College, in SLP(C)No.28996 of 2011, submitted that there
was a waste of human resources by denying admission to deserving students
who wanted to pursue a medical course, although, the required facilities
were available, only on the ground that such increase had not been
sanctioned by the concerned authorities. Referring to the provisions of
Sections 10A and 11(2) of the 1956 Act, Dr. Singhvi submitted that an
interpretation of Section 10 of the aforesaid Act, as was being sought to
be given, was entirely illogical, particularly when there was no specific
legislation to the contrary. Dr. Singhvi urged that when facilities had
been found to be sufficient for 100 students, facilities providing for 150
students, would have to be presumed to be sufficient as well.

37. Dr. Singhvi submitted that it is Section 10A of the 1956 Act which
deals with setting up of new medical colleges/institutions or enhancement
of numbers. According to learned counsel, Section 11 of the 1956 Act had
been wrongly pressed into service, since it concerns the Centre’s power to
recognize degrees. Expressing himself idiomatically, Dr. Singhvi urged that
trying to read Section 11 with Section 10A was like trying to mix chalk and
cheese and an attempt to do so would lead to absurdity. In this connection,
Dr. Singhvi referred to a three-Judge Bench decision in Mridhul Dhar Vs.
Union of India [(2005) 2 SCC 65], in which among several issues, one issue
which fell for consideration was about not taking into consideration, for
determining All-India quota, those seats which were created under Section
10A of the Act. The Hon’ble Judge recorded that according to the Medical
Council of India, only seats recognised under Section 11 are taken into
consideration and not the seats which are permitted under Section 10A of
the Act. The provisions of Regulation 8(3) of the 1999 Regulations were
also noted.

38. Having considered the said Regulation and the effect of Section 10A
and Section 11 of the 1956 Act, Their Lordships gave various directions,
including a direction that the States, through the Chief Secretaries/Health
Secretaries, should file a report in regard to admissions with the Director
General of Health Services, by 31st October, 2004, with the DGHS giving
details about adhering to the time schedule and the number of admissions
granted as per the prescribed quota. Dr. Singhvi urged that the non-
utilization of available resources was not intended by the legislature and
the same also amounted to violation of the provisions of Article 21 of the
Constitution.

39. Mr. Pradip K. Ghosh, learned Senior Advocate, who appeared for the
Respondent No.1 in SLP(C)No.30332 of 2011, briefly reiterated the
submissions already made. Referring to the writ petition filed by the
Teerthankar Mahaveer Institute of Management and Technology, Moradabad,
which was the petitioner in Writ Petition (C) No. 5763 of 2011, Mr. Ghosh
urged that the society was running a large number of educational
institutions in which about 8,500 students were pursuing their respective
courses. Mr. Ghosh submitted that in 2008, the said society was granted the
status of a private university and since it had all the required
facilities, it moved the said writ petition for a mandamus on the
respondents to grant permission to the writ petitioner college to admit 150
MBBS students, instead of 100, for the academic year 2011-12.

40. Mr. Kunal Cheema, learned Advocate, who appeared for the petitioner
in Writ Petition (C) No.489 of 2011, Dashmesh Educational Charitable Trust,
introduced a new dimension in the submissions by indicating that the
expression “recognition” had not been used by the legislature in Section
10A of the Act. It talks of permission to establish a medical
college/institution but the said expression finds place in the Regulations
framed by the Medical Council under Section 10A(7)(g) read with Sections
33(fa) and 66 of the Act. According to Mr. Cheema, the permission granted
to establish a medical college must be held to be sufficient for allowing
the medical college/institution to deal with the problems relating to
increase in the number of students in a given year for the medical course.

41. Mr. Mukesh Giri, learned Advocate, adopted the submissions made by
the learned counsel before him and also questioned the stand taken on
behalf of the appellants that the Regulations contemplated a situation
where before the Section 11 stage is reached, an institution could not
apply for increase in the number of students, even when the other
conditions relating to infrastructure were fulfilled.

42. As indicated at the beginning of this judgment, in these matters we
are mainly concerned with the interpretation of Sections 10A and 11,
together with Sections 10 and 33 of the Indian Medical Council Act, 1956.
The Division Bench of the High Court, while considering the decision of the
learned Single Judge, has laid undue stress on the expression “recognition
by the Medical Council of India”, used in the 2000 Regulations, since such
expression has been used in a completely different sense other than
granting recognition to a medical college/institution for the purposes of
Sections 10B and 11 of the 1956 Act. The said expression has to be read
and understood as meaning that the concerned medical college/institution
was recognised by the Medical Council of India as having the capacity to
run such an institution. It is amply clear from Section 10A that what is
contemplated thereunder is permission for establishing a new medical
college, which is to be granted by the Central Government upon the
recommendation of the Council. The use of the expression “recognition” in
the Regulation does not affect or alter the intention of the legislature
expressed in unambiguous terms in Section 10A as well as in Sections 10B
and 11 of the 1956 Act. Both the 1956 Act and the Regulations framed by
the Medical Council make it very clear that while the Central Government
has the authority to recognize the degree awarded by a newly-established
medical college/institution, it does so on the evaluation made by the
Medical Council and its subsequent recommendation.

43. By pursuing the line of reasoning adopted by the learned Single
Judge, the Division Bench allowed itself to be led into the error of coming
to a finding that once permission/recognition was granted under Section 10A
of the 1956 Act, it gave the grantee permission to run a complete course.
The Division Bench led itself further into the quagmire created by it by
dividing Regulation 3(1) into two parts in the following manner :

a) The medical college/institution must be recognised by the
Medical Council of India for running Bachelor of Medicine and
Bachelor of Surgery/Post Graduate Course;

however

b) The medical college/institute which is not yet recognised by the
Medical Council of India for the award of MBBS degree may apply for
increase of intake in Post Graduate courses in pre-clinical and para-
clinical subjects of Anatomy, Physiology, Biochemistry, Pharmacology,
Pathology, Microbiology, Forensic Medicine & Community Medicine at the
time of 4th renewal i.e. along with the admission of 5th Batch for the
MBBS Course.

44. The interpretation sought to be given to Regulation 3(1) in the
manner aforesaid portrays a totally wrong understanding of the scheme of
the Act itself and the all-pervading presence of the Medical Council of
India in the process of grant of recognition for running of medical
colleges/ institutions. The said reasoning has also led the Division Bench
to misconstrue the provisions of Sections 10B and 11 of the 1956 Act as to
the right given to a medical college/institution, which has been
established without the permission of the Central Government as provided in
Section 10A of the Act, to increase its admission capacity. Following the
reasoning of the Single Judge, the Division Bench failed to see that
Regulation 3(1) of the 2000 Regulations made it amply clear that those
institutions which were yet to be recognised could apply for a Post-
Graduate Course in subjects which were not part of the regular Post-
Graduate Courses which were available to those who were in possession of a
recognised MBBS degree. Both the Single Judge and the Division Bench of
the High Court seem to have ignored the provisions of the 1999 and 2000
Regulations, framed by the Medical Council of India under the provisions of
Sections 10A and 33, of the 1956 Act. It may be of interest to note that
Section 33, which empowers the Medical Council to frame Regulations,
provides in Sub-Sections (fa) and (fb), the right to the Medical Council to
frame a scheme in terms of Sub-Section (2) of Section 10A and also in
regard to any other factors under Clause (g) of Sub-Section (7) of Section
10A. It is quite clear that the legislature has given the Medical Council
of India wide authority to take all steps which are necessary to ensure
that a medical institution, either at the time of establishment, or later
at the time of applying for increase in the number of seats, has the
capacity and the necessary infrastructure, not only to run the college, but
also to sustain the increase in the number of seats applied for. To that
extent, since the Act is silent, the Regulations which have statutory force
will be applicable to the scheme as contemplated under the Act. We repeat
that by allowing itself to get confused with the use of the expression
“recognition” in Regulation 3(1) of the 2000 Regulations, both the learned
Single Judge and the Division Bench of the High Court came to the erroneous
conclusion that once permission had been granted under Section 10A to
establish a new medical college/institution, the question of having to take
fresh permission each year for any subsequent steps to be taken after grant
of such permission till the fifth year of the course was completed, did not
arise.

45. The aforesaid position would be doubly clear from the provisions of
Sub-Section (3) of Section 10B, which, in no uncertain terms, provide that
where any medical college increases its admission capacity in any course of
study or training, except with the previous permission of the Central
Government in accordance with the provisions of Section 10A, no medical
qualification granted to any student of such medical college on the basis
of the increase in its admission capacity, shall be a recognised medical
qualification for the purposes of the Act. In other words, without the
previous permission of the Central Government within the scheme, as
prescribed under Section 10A, i.e., without the recommendation of the
Medical Council, any degree granted would not be recognised as a medical
degree which would entitle such degree holder to function as a medical
practitioner.

46. There is no getting away from the fact that Section 10A lays down the
criteria for grant of permission for establishment of a new medical college
and that Section 10B supplements the same by making it clear that even
while increasing the number of seats in a medical college/institution, the
procedure indicated in Section 10A, and in particular Section 10A(2), would
have to be followed. At every stage, it is the Council which plays a very
important role in either the grant of permission to establish a new medical
college or to increase the number of seats. Furthermore, on account of the
Regulations of 1999 and 2000, the norms relating to eligibility criteria,
as set out in the 1999 Regulations, as also in the 2000 Regulations, have
to be complied with, either for the purpose of grant of permission for
establishing a new medical college or for introducing a new course of study
along with the intention of increasing the number of students in the
medical institution.

47. In Part II of the 2000 Regulations, which deals with the scheme for
obtaining the permission of the Central Government to increase the
admission capacity in any course of study or training, including Post
Graduate course of study or training, in the existing medical colleges/
institutions, another set of “qualification criteria” has been set out in
Regulation 3(1) which has created some confusion in the minds of the
learned Judges in the High Court by use of the expression “recognised by
the Medical Council of India”. As indicated hereinbefore, what it seeks to
indicate is that for the purpose of applying for increase in the number of
seats, the medical college must be one which, in the opinion of the Medical
Council, was capable of running the Bachelor of Medicine and Bachelor of
Surgery/Post-graduate Course. It also provides that the medical
college/institute which is not yet recognised by the Medical Council for
the award of MBBS degree, may also apply for increase of intake in Post
Graduate Course in pre-clinical and para-clinical subjects such as Anatomy,
Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic
Medicine and Community Medicine, at the time of fourth renewal, i.e, along
with the admission of the fifth batch for the MBBS Course, which are
courses not connected with the regular course of study. In fact, the
controversy which surfaced in Nivedita Jain’s case (supra) that the
Regulations framed by the Medical Council of India under Section 10A read
with Section 33 of the 1956 Act, were directory in nature, was subsequently
set at rest by the Constitution Bench decision in Dr. Preeti Srivastava’s
case (supra), wherein the view expressed in Nivedita Jain’s case was
overruled.

48. In view of the decision of the Constitution Bench, it is not
necessary for us to refer to the other decisions cited both on behalf of
the Medical Council of India and the respondents, since, in our view, the
position is quite clear that in terms of the scheme of the Act and the
Regulations framed by the Medical Council of India, it is the Central
Government which is empowered to grant recognition to a medical college or
institution on the recommendation made by the Medical Council of India.
The role of the Medical Council of India in the grant of recognition to a
medical college/institution is recommendatory and the Council has no power
to grant recognition to a medical institution. Such power lies with the
Central government. As pointed out by Mr. Cheema, no provision is
available under the Act relating to grant of recognition of a medical
college/institution, since Section 10A speaks only of permission and not
recognition. The same has been supplemented by the provisions of the 1999
and 2000 Regulations for the purpose of Section 10A(7)(g) of the Act.

49. For the reasons aforesaid, we are unable to agree with the reasoning
of either the learned Single Judge or the Division Bench of the High Court
in arriving at the finding that once permission had been granted under
Section 10A of the Act, it would amount to grant of recognition and,
thereafter, the medical college/institution, was free to enhance the number
of seats without the permission either of the Council or the Central
Government.

50. We, therefore, have no hesitation in setting aside the judgments,
both of the learned Single Judge as also that of the Division Bench of the
High Court, and the directions given to increase the number of seats from
100 to 150 in the MBBS course run by the writ petitioners. Since the 2000
Regulations provide for a newly-established medical college/institution to
seek permission each year to continue with the MBBS course till the first
batch of the students graduated, in our view, the position is quite clear
that the recognition referred to in Sections 10B and 11 of the 1956 Act
would have to relate to the grant of recognition to a medical institution
under Section 11 for the purpose of recognition of its qualifications as a
medical degree, which would entitle the holder thereof to practise
medicine.

51. Consequently, upon setting aside the judgments of the learned Single
Judge and the Division Bench and the directions contained therein, we also
make it clear that this will not prevent the medical colleges/institutions
from applying for increase in the number of students, provided such
application fulfils the conditions and criteria of Section 10A and the
Regulations framed thereunder by the Medical Council of India.

52. The appeals arising out of SLP(C)Nos.28996 and 30332 of 2011,
preferred by the Medical Council of India and the appeal arising out of
SLP(C)No.30338 of 2011, preferred by the Board of Governors, against the
judgment and order dated 13th October, 2011, passed by the Delhi High Court
in Letters Patent Appeal Nos. 820, 819 and 816 of 2011 respectively, along
with the appeal arising out of SLP(C)No.3732 of 2012, preferred by the
Medical Council of India against the judgment and order dated 14th
November, 2011, passed by the Punjab and Haryana High Court in Civil Writ
Petition No.16235 of 2011, are allowed. The impugned judgments and orders
passed by the Delhi High Court, as also the Punjab and Haryana High Court,
are set aside.

53. Consequently, Writ Petition (C) No.457 of 2011, filed by the School
of Medical Sciences & Research, Sharda University; Writ Petition (C) No.458
of 2011, filed by Teerthanker Mahaveer Institute of Management & Technology
Society, Moradabad; and Writ Petition (C) No.489 of 2011, filed by Dashmesh
Educational Charitable Trust, are dismissed, as the reliefs prayed for
therein are in direct conflict with the provisions of Section 10A of the
1956 Act and Regulation 8(3) of the 1999 Regulations.

54. Having regard to the facts involved, all the parties in each of the
matters will bear their own costs.

………………………………………………………J.
(ALTAMAS KABIR)

………………………………………………………J.
(J. CHELAMESWAR)
New Delhi
Dated : 4.7.2012
-----------------------
65

“The court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures.” 40. Regard being had to the aforesaid, we have to evaluate the instances. In our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. The conduct and circumstances make it graphically clear that the respondent-wife had really humiliated him and caused mental cruelty. Her conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband. She had publicised in the newspapers that he was a womaniser and a drunkard. She had made wild allegations about his character. She had made an effort to prosecute him in criminal litigations which she had failed to prove. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious. It can be stated with certitude that the cumulative effect of the evidence brought on record clearly establish a sustained attitude of causing humiliation and calculated torture on the part of the wife to make the life of the husband miserable. The husband felt humiliated both in private and public life. Indubitably, it created a dent in his reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity. Thus analysed, it would not be out of place to state that his brain and the bones must have felt the chill of humiliation. The dreams sweetly grafted with sanguine fondness with the passage of time reached the Everstine disaster, possibly, with a vow not to melt. The cathartic effect looked like a distant mirage. The cruel behaviour of the wife has frozen the emotions and snuffed out the bright candle of feeling of the husband because he has been treated as an unperson. Thus, analysed, it is abundantly clear that with this mental pain, agony and suffering, the husband cannot be asked to put up with the conduct of the wife and to continue to live with her. Therefore, he is entitled to a decree for divorce. 41. Presently, we shall deal with the aspect pertaining to the grant of permanent alimony. The court of first instance has rejected the application filed by the respondent-wife as no decree for divorce was granted and there was no severance of marital status. We refrain from commenting on the said view as we have opined that the husband is entitled to a decree for divorce. Permanent alimony is to be granted taking into consideration the social status, the conduct of the parties, the way of living of the spouse and such other ancillary aspects. During the course of hearing of the matter, we have heard the learned counsel for the parties on this aspect. After taking instructions from the respective parties, they have addressed us. The learned senior counsel for the appellant has submitted that till 21.2.2012, an amount of Rs.17,60,000/- has been paid towards maintenance to the wife as directed by the courts below and hence, that should be deducted from the amount to be fixed. He has further submitted that the permanent alimony should be fixed at Rs.25 lacs. The learned counsel for the respondent, while insisting for affirmance of the decisions of the High Court as well as by the courts below, has submitted that the amount that has already been paid should not be taken into consideration as the same has been paid within a span of number of years and the deduction would affect the future sustenance. He has emphasised on the income of the husband, the progress in the business, the inflation in the cost of living and the way of life the respondent is expected to lead. He has also canvassed that the age factor and the medical aid and assistance that are likely to be needed should be considered and the permanent alimony should be fixed at Rs.75 lacs. 42. In our considered opinion, the amount that has already been paid to the respondent-wife towards alimony is to be ignored as the same had been paid by virtue of the interim orders passed by the courts. It is not expected that the respondent-wife has sustained herself without spending the said money. Keeping in view the totality of the circumstances and the social strata from which the parties come from and regard being had to the business prospects of the appellant, permanent alimony of Rs.50 lacs (rupees fifty lacs only) should be fixed and, accordingly, we so do. The said amount of Rs.50 lacs (rupees fifty lacs only) shall be deposited by way of bank draft before the trial court within a period of four months and the same shall be handed over to the respondent-wife on proper identification. 43. Consequently, the appeal is allowed, the judgments and decrees of the courts below are set aside and a decree for divorce in favour of the appellant is granted. Further, the husband shall pay Rs.50 lacs (rupees fifty lacs only) towards permanent alimony to the wife in the manner as directed hereinabove. The parties shall bear their respective costs.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4905 OF 2012
(Arising out of S.L.P. (Civil) No. 16528 of 2007)

Vishwanath S/o Sitaram Agrawal .....……..Appellant

Versus

Sau. Sarla Vishwanath Agrawal ………Respondent

J U D G M E N T

DIPAK MISRA, J.

Leave granted.

2. The marriage between the appellant and the respondent was solemnized
on the 30th of April, 1979 as per the Hindu rites at Akola. In the
wedlock, two sons, namely, Vishal and Rahul, were born on 23.9.1982 and
1.11.1984 respectively. As the appellant-husband felt that there was total
discord in their marital life and compatibility looked like a mirage, he
filed a petition for divorce under Section 13(1) (ia) of The Hindu Marriage
Act, 1955 (for brevity ‘the Act’).

3. It was the case of the appellant before the court of first instance
that the respondent-wife did not know how to conduct herself as a wife and
daughter-in-law and despite persuasion, her behavioural pattern remained
unchanged. The birth of the children had no impact on her conduct and
everything worsened with the efflux of time. The behaviour of the
respondent with the relatives and guests who used to come to their house
was far from being desirable and, in fact, it exhibited arrogance and lack
of culture and, in a way, endangered the social reputation of the family.
That apart, she did not have the slightest respect for her mother-in-law.
Despite the old lady being a patient of diabetes and hyper tension, it
could not invoke any sympathy from the respondent and hence, there was
total absence of care or concern.

4. As pleaded, in the month of March, 1990, there was a dacoity in the
house where the appellant was staying and, therefore, they shifted to the
ginning factory and eventually, on 17.3.1991, shifted to their own three
storeyed building situate in Gandhi Chowk. Even with the passage of time,
instead of bringing maturity in the attitude of the respondent, it brought
a sense of established selfishness and non-concern for the children. Whim
and irrationality reigned in her day-to-day behaviour and frequent quarrels
became a daily affair. As misfortune would have it, on 23.1.1994, the
mother of the appellant died and the freer atmosphere at home gave immense
independence to the respondent to make the life of the appellant more
troublesome. The appellant and his father were compelled to do their
personal work as the entire attention of the servants was diverted in a
compulsive manner towards her. Her immature perception of life reached its
zenith when on certain occasions she used to hide the keys of the
motorcycle and close the gate so that the appellant could not go to the
office of the factory to look after the business. Frequent phone calls
were made to the factory solely for the purpose of abusing and causing
mental agony to the appellant. As asserted, the appellant and his sons
used to sleep on the second floor whereas the respondent used to sleep in
the bedroom on the third floor and their relationship slowly but constantly
got estranged. As the cruelty became intolerable, the appellant visited his
in-laws and disclosed the same but it had no effect on her behaviour.
Eventually, on 1.5.1995, the respondent was left at the house of her
parents at Akola and the appellant stayed in his house with the two sons.
As the factual matrix would unveil, on 24.7.1995, a notice issued by her
advocate was published in the daily “Lokmat” stating, inter alia, that the
appellant is a womaniser and addicted to liquor. On 11.10.1995, at 4.00
p.m., the respondent came to the house of the appellant at Gandhi Chowk and
abused the father, the children and the appellant. She, in fact, created a
violent atmosphere in the house as well as in the office by damaging the
property and causing mental torture to the appellant and also to the family
members which compelled the appellant to lodge a complaint at the Police
Station, Chopda. It was alleged that she had brought gundas and certain
women to cause that incident. The said untoward incident brought the
A.S.P., Jalgaon, to the spot. The publication in the newspaper and the
later incident both occurred during the pendency of the divorce petition
and they were incorporated by way of amendment. On the aforesaid basis, it
was contended that the respondent had treated the appellant with cruelty
and hence, he was entitled to a decree for divorce.

5. The asseverations made in the petition were controverted by the
respondent stating that she was always respectful and cordial to her in-
laws, relatives and the guests as was expected from a cultured daughter-in-
law. They led a happy married life for 16 years and at no point of time
she showed any arrogance or any behaviour which could remotely suggest any
kind of cruelty. She attended to her mother-in-law all the time with a
sense of committed service and at no point of time there was any
dissatisfaction on her part. She disputed the allegation that she had
hidden the keys of the motorcycle or closed the gate or repeatedly called
the appellant on phone at the office to abuse him or to disturb him in his
work. It is her stand that the appellant owns an oil mill, ginning factory
and a petrol pump at Chopda and had sold certain non-agricultural land by
demarcating it into small plots. The appellant, as alleged, joined the
computer classes which were run by one Neeta Gujarathi in the name and
style of “Om Computer Services” and gradually the appellant started
spending much of his time at the computer centre instead of attending to
his own business in the factory. When the respondent became aware of the
intimacy, she took serious objection to the same and therefrom their
relationship became bitter.

6. It was alleged by the respondent that she was disturbed after knowing
about the involvement of the appellant with another lady despite having an
established family life and two adolescent sons and, therefore, she was
compelled to make phone calls to make enquiries about his whereabouts. As
the interference by the respondent was not appreciated by the appellant, he
took the respondent on 1.5.1995 to Akola and left her at her parental house
and never cared to bring her back to her matrimonial home. Her willingness
to come back and stay with the husband and children could not get
fructified because of the totally indifferent attitude shown by the
appellant. Her attempts to see the children in the school became an
exercise in futility, as the husband, who is a trustee of the school,
managed to ensure that the boys did not meet her. It was further alleged
that the said Neeta lived with him as his mistress and when the respondent
came to know about it, she went to Chopda to ascertain the same and coming
to know that Neeta was in the house of the appellant, she made an effort to
enter into the house but she was assaulted. This resulted in gathering of
people of the locality and the appellant-husband, as a counter-blast,
lodged a complaint at the police station. The Deputy Superintendent of
Police arrived at the scene and found that Neeta was inside the house and
thereafter she was taken back to her house by the police. Because of the
involvement of the appellant with the said Neeta, he had concocted the
story of cruelty and filed the petition for divorce.

7. The learned trial Judge framed as many as four issues. The two vital
issues were whether the appellant had been able to prove the alleged
cruelty and whether he was entitled to take disadvantage of his own wrong.
The appellant, in order to prove the allegation of cruelty, examined ten
witnesses and on behalf of the respondent, eight witnesses were examined.
The learned trial Judge, analysing the evidence on record, came to hold
that there was conjugal relationship till 1.5.1995; that there was no
substantial material on record to demonstrate that the respondent had
behaved with immaturity immediately after marriage; that in the absence of
cogent evidence, it was difficult to hold that the respondent had troubled
the husband and his parents; that the evidence of PW-3, Ramesh, was not
worthy of acceptance as he is close and an interested witness; that the
allegation that whenever she used to go to her parental home, she was
granting leave to the servants was not acceptable; that the appellant
should have examined some of the servants including the maid servant but
for some reason or other had withheld the best evidence; that the plea that
the respondent was not looking after her mother-in-law who was suffering
from paralysis from 1984 has not been proven; that the allegation that the
respondent was hiding the uniforms of the children and not treating them
well had not been proven because the version of Vishal could not be
accepted as he was staying with the father and, therefore, it was natural
for him to speak in favour of the father; that the stand that the
respondent was hiding the keys of the motorcycle and crumpling the ironed
clothes of the appellant did not constitute mental cruelty as the said
acts, being childish, were enjoyed by the appellant-husband; that the
factum of abuse by the respondent on telephone had not been established by
adducing reliable evidence; that the respondent and the appellant were
sleeping on the third floor of the house and hence, she was sleeping with
him in the bedroom and the allegation that he was deprived of sexual
satisfaction from 1991 was unacceptable; that from the witnesses cited on
behalf of the respondent, it was demonstrable that her behaviour towards
her sons and in-laws was extremely good; that even if the allegations made
by the appellant were accepted to have been established to some extent, it
could only be considered as normal wear and tear of the marital life; that
the plea of mental cruelty had not been proven as none of the allegations
had been established by adducing acceptable, consistent and cogent
evidence; that the notice published in the daily “Lokmat” on 28.7.1995 and
the later incident dated 11.10.1995 being incidents subsequent to the
filing of the petition for divorce, the same were not to be taken into
consideration.

8. The learned trial Judge further returned the finding that the
appellant was going to learn computer and taking instructions from Neeta
Gujarathi and the plea that she was engaged as a Computer Operator in his
office was not believable as no appointment letter was produced; that the
stand that she was paid Rs.1200/- per month was not worthy of any credence
as she was operating a computer centre; that from the evidence of the
witnesses of the respondent, namely, RW-3 to RW-5, it was clear that Neeta
Gujarathi was living with the appellant in his house and he had developed
intimacy with her and, therefore, the subsequent events, even if analysed,
were to be so done on the said backdrop; that the allegation that there was
a gathering and they were violent and broke the windows was really not
proven by adducing credible evidence; that the testimony of the witnesses
of the respondent clearly reveal that Neeta was inside the house of the
appellant and effort was made to bring her out from the house and no damage
was caused to the property; that on that day, the police had come in the
mid night hours and taken out Neeta from the house of the appellant and
left her at her house; that the notice which was published in “Lokmat” was
to protect the interest of the sons in the property and basically pertained
to the appellant’s alienating the property; that the public notice was not
unfounded or baseless and the question of defaming him and thereby causing
any mental cruelty did not arise; that the allegations made in the
application for grant of interim alimony that the appellant is a womaniser
and is addicted to liquor cannot be considered for the purpose of arriving
at the conclusion that the husband was meted with cruelty; that the
allegations made in the written statement having been found to be truthful,
the same could not be said to have caused any mental cruelty; that the
cumulative effect of the evidence brought on record was that no mental
cruelty was ever caused by the respondent; and that the husband could not
take advantage of his own wrong. Being of this view, the learned trial
Judge dismissed the application with costs and also dismissed the
application of the respondent-wife for grant of permanent alimony.

9. Grieved by the aforesaid decision, the appellant-husband preferred
Civil Appeal No. 23 of 1999. The first appellate court appreciated the
evidence, dealt with the findings returned by the trial court and
eventually came to hold that the cumulative effect of the evidence and the
material brought on record would go a long way to show that the appellant
had failed to make out a case of mental cruelty to entitle him to obtain a
decree for divorce. The aforesaid conclusion by the appellate court
entailed dismissal of the appeal.

10. Being dissatisfied with the judgment and decree passed by the learned
appellate Judge, the husband preferred Second Appeal No. 683 of 2006 before
the High Court. The learned single Judge of the High Court came to hold
that there were concurrent findings of fact and no substantial question of
law was involved. However, the learned single Judge observed that the sons
of the parties had grown up and have been married; that the parties had no
intention to patch up the matrimonial discord; and that the marriage had
been irretrievably broken but that could not be considered by the High
Court but only by the Apex Court under Article 142 of the Constitution.
Expressing the aforesaid view, he did not admit the appeal and dismissed
the same.

11. We have heard Mr. Arvind V. Sawant, learned senior counsel for the
appellant-husband, and Mr. Vivek C. Solshe, learned counsel for the
respondent-wife.

12. At the very outset, we would like to make it clear that though the
learned single Judge of the High Court has expressed the view that the
parties are at logger heads and have shown no inclination to patch the
matrimonial rupture and the sons have grown up and got married and with the
efflux of time, the relationship has been further shattered and hence, the
marriage is irretrievably broken and only this Court can grant divorce in
exercise of power under Article 142 of the Constitution, yet we are not
going to take recourse to the same and only address ourselves whether a
case for divorce has really been made out.

13. At this juncture, we may note with profit that the learned senior
counsel for the appellant exclusively rested his case on the foundation of
mental cruelty. It is his submission that if the evidence of the husband
and other witnesses are scrutinized in an apposite manner along with the
stand and stance taken in the written statement, it will clearly reveal a
case of mental cruelty regard being had to the social status of the
appellant. It is urged by him that the trial court as well as the
appellate court have not given any credence to the evidence of some of the
witnesses on the ground that they are interested witnesses though they are
the most natural witnesses who had witnessed the cruel behaviour meted to
the appellant.

14. It is the submission of the learned senior counsel for the appellant
that the court of first instance as well as the appellate court have failed
to take into consideration certain material aspects of the evidence and the
appreciation of evidence being absolutely perverse, the High Court would
have been well advised to scan and scrutinize the same but it declined to
admit the appeal on the ground that there are concurrent findings of fact.
It is canvassed by him that this Court, in exercise of power under Article
136 of the Constitution, can dislodge such concurrent findings of facts
which are perverse, baseless, unreasonable and contrary to the material on
record.

15. The learned counsel for the respondent, resisting the aforesaid
submissions, contended that the view expressed by the High Court cannot be
found fault with as the courts below have, at great length, discussed the
evidence and appreciated the same with utmost prudence and objectivity and
there is nothing on record to show that any material part of the evidence
has been ignored or something extraneous to the record has been taken into
consideration. It is highlighted by him that the stand put forth by the
wife in her written statement having been established, the same cannot be
construed to have constituted mental cruelty. Lastly, it is put forth that
the appellant has created a dent in the institution of marriage and made a
maladroit effort to take advantage of his own wrong which should not be
allowed.

16. First, we shall advert to what actually constitutes ‘mental cruelty’
and whether in the case at hand, the plea of mental cruelty has been
established and thereafter proceed to address whether the courts below have
adopted an approach which is perverse, unreasonable and unsupported by the
evidence on record and totally unacceptable to invite the discretion of
this Court in exercise of power under Article 136 of the Constitution to
dislodge the same.

17. The expression ‘cruelty’ has an inseparable nexus with human conduct
or human behaviour. It is always dependent upon the social strata or the
milieu to which the parties belong, their ways of life, relationship,
temperaments and emotions that have been conditioned by their social
status. In Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan and
another[1], a two-Judge Bench approved the concept of legal cruelty as
expounded in Sm. Pancho v. Ram Prasad[2] wherein it was stated thus: -

“Conception of legal cruelty undergoes changes according
to the changes and advancement of social concept and standards
of living. With the advancement of our social conceptions, this
feature has obtained legislative recognition that a second
marriage is a sufficient ground for separate residence and
separate maintenance. Moreover, to establish legal cruelty, it
is not necessary that physical violence should be used.

Continuous ill-treatment, cessation of marital
intercourse, studied neglect, indifference on the part of the
husband, and an assertion on the part of the husband that the
wife is unchaste are all factors which may undermine the health
of a wife.”

It is apt to note here that the said observations were made while
dealing with the Hindu Married Women’s Right to Separate Residence and
Maintenance Act (19 of 1946). This Court, after reproducing the passage,
has observed that the learned Judge has put his finger on the correct
aspect and object of mental cruelty.

18. In Shobha Rani v. Madhukar Reddi[3], while dealing with ‘cruelty’
under Section 13(1)(ia) of the Act, this Court observed that the said
provision does not define ‘cruelty’ and the same could not be defined. The
‘cruelty’ may be mental or physical, intentional or unintentional. If it
is physical, the court will have no problem to determine it. It is a
question of fact and degree. If it is mental, the problem presents
difficulty. Thereafter, the Bench proceeded to state as follows: -

“First, the enquiry must begin as to the nature of the cruel
treatment. Second, the impact of such treatment on the mind of
the spouse. Whether it caused reasonable apprehension that it
would be harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by taking
into account the nature of the conduct and its effect on the
complaining spouse. There may, however, be cases where the
conduct complained of itself is bad enough and per se unlawful
or illegal. Then the impact or the injurious effect on the
other spouse need not be enquired into or considered. In such
cases, the cruelty will be established if the conduct itself is
proved or admitted.”

19. After so stating, this Court observed about the marked change in life
in modern times and the sea change in matrimonial duties and
responsibilities. It has been observed that when a spouse makes a
complaint about treatment of cruelty by the partner in life or relations,
the court should not search for standard in life. A set of facts
stigmatized as cruelty in one case may not be so in another case. The
cruelty alleged may largely depend upon the type of life the parties are
accustomed to or their economic and social conditions. It may also depend
upon their culture and human values to which they attach importance. Their
Lordships referred to the observations made in Sheldon v. Sheldon[4]
wherein Lord Denning stated, “the categories of cruelty are not closed”.
Thereafter, the Bench proceeded to state thus: -

“Each case may be different. We deal with the conduct of human
beings who are not generally similar. Among the human beings
there is no limit to the kind of conduct which may constitute
cruelty. New type of cruelty may crop up in any case depending
upon the human behaviour, capacity or incapability to tolerate
the conduct complained of. Such is the wonderful (sic) realm of
cruelty.

These preliminary observations are intended to emphasise that
the court in matrimonial cases is not concerned with ideals in
family life. The court has only to understand the spouses
concerned as nature made them, and consider their particular
grievance. As Lord Ried observed in Gollins v. Gollins[5] :

In matrimonial affairs we are not dealing with
objective standards, it is not a matrimonial offence to
fall below the standard of the reasonable man (or the
reasonable woman). We are dealing with this man or this
woman.”

20. In V. Bhagat v. D. Bhagat (Mrs.)[6], a two-Judge Bench referred to
the amendment that had taken place in Sections 10 and 13(1)(ia) after the
Hindu Marriage Laws (Amendment) Act, 1976 and proceeded to hold that the
earlier requirement that such cruelty has caused a reasonable apprehension
in the mind of a spouse that it would be harmful or injurious for him/her
to live with the other one is no longer the requirement. Thereafter, this
Court proceeded to deal with what constitutes mental cruelty as
contemplated in Section 13(1)(ia) and observed that mental cruelty in the
said provision can broadly be defined as that conduct which inflicts upon
the other party such mental pain and suffering as would make it not
possible for that party to live with the other. To put it differently, the
mental cruelty must be of such a nature that the parties cannot reasonably
be expected to live together. The situation must be such that the wronged
party cannot reasonably be asked to put up with such conduct and continue
to live with the other party. It was further observed, while arriving at
such conclusion, that regard must be had to the social status, educational
level of the parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they are already
living apart and all other relevant facts and circumstances. What is
cruelty in one case may not amount to cruelty in another case and it has to
be determined in each case keeping in view the facts and circumstances of
that case. That apart, the accusations and allegations have to be
scrutinized in the context in which they are made. Be it noted, in the
said case, this Court quoted extensively from the allegations made in the
written statement and the evidence brought on record and came to hold that
the said allegations and counter allegations were not in the realm of
ordinary plea of defence and did amount to mental cruelty.

21. In Praveen Mehta v. Inderjit Mehta[7], it has been held that mental
cruelty is a state of mind and feeling with one of the spouses due to
behaviour or behavioural pattern by the other. Mental cruelty cannot be
established by direct evidence and it is necessarily a matter of inference
to be drawn from the facts and circumstances of the case. A feeling of
anguish, disappointment, and frustration in one spouse caused by the
conduct of the other can only be appreciated on assessing the attending
facts and circumstances in which the two partners of matrimonial life have
been living. The facts and circumstances are to be assessed emerging from
the evidence on record and thereafter, a fair inference has to be drawn
whether the petitioner in the divorce petition has been subjected to mental
cruelty due to the conduct of the other.

22. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate[8], it has
been opined that a conscious and deliberate statement levelled with
pungency and that too placed on record, through the written statement,
cannot be so lightly ignored or brushed aside.

23. In A. Jayachandra v. Aneel Kaur[9], it has been ruled that the
question of mental cruelty has to be considered in the light of the norms
of marital ties of the particular society to which the parties belong,
their social values, status and environment in which they live. If from
the conduct of the spouse, it is established and/or an inference can
legitimately be drawn that the treatment of the spouse is such that it
causes an apprehension in the mind of the other spouse about his or her
mental welfare, then the same would amount to cruelty. While dealing with
the concept of mental cruelty, enquiry must begin as to the nature of cruel
treatment and the impact of such treatment in the mind of the spouse. It
has to be seen whether the conduct is such that no reasonable person would
tolerate it.

24. In Vinita Saxena v. Pankaj Pandit[10], it has been ruled that as to
what constitutes mental cruelty for the purposes of Section 13(1)(ia) will
not depend upon the numerical count of such incident or only on the
continuous course of such conduct but one has to really go by the
intensity, gravity and stigmatic impact of it when meted out even once and
the deleterious effect of it on the mental attitude necessary for
maintaining a conducive matrimonial home.

25. In Samar Ghosh v. Jaya Ghosh[11], this Court, after surveying the
previous decisions and referring to the concept of cruelty, which includes
mental cruelty, in English, American, Canadian and Australian cases, has
observed that the human mind is extremely complex and human behaviour is
equally complicated. Similarly, human ingenuity has no bound, therefore,
to assimilate the entire human behaviour in one definition is almost
impossible. What is cruelty in one case may not amount to cruelty in the
other case. The concept of cruelty differs from person to person depending
upon his upbringing, level of sensitivity, educational, family and cultural
background, financial position, social status, customs, traditions,
religious belief, human values and their value system. Apart from this,
the concept of mental cruelty cannot remain static; it is bound to change
with the passage of time, impact of modern culture through print and
electronic media and value system, etc. etc. What may be mental cruelty
now may not remain mental cruelty after a passage of time or vice versa.
There can never be any straitjacket formula or fixed parameters for
determining mental cruelty in matrimonial matters. The prudent and
appropriate way to adjudicate the case would be to evaluate it on its
peculiar facts and circumstances.

26. In Suman Kapur v. Sudhir Kapur[12], after referring to various
decisions in the field, this Court took note of the fact that the wife had
neglected to carry out the matrimonial obligations and further, during the
pendency of the mediation proceeding, had sent a notice to the husband
through her advocate alleging that he had another wife in USA whose
identity was concealed. The said allegation was based on the fact that in
his income-tax return, the husband mentioned the “Social Security Number”
of his wife which did not belong to the wife, but to an American lady. The
husband offered an explanation that it was merely a typographical error and
nothing else. The High Court had observed that taking undue advantage of
the error in the “Social Security Number”, the wife had gone to the extent
of making serious allegation that the husband had married an American woman
whose “Social Security Number” was wrongly typed in the income-tax return
of the husband. This fact also weighed with this Court and was treated
that the entire conduct of the wife did tantamount to mental cruelty.

27. Keeping in view the aforesaid enunciation of law pertaining to mental
cruelty, it is to be scrutinized whether in the case at hand, there has
been real mental cruelty or not, but, a significant one, the said scrutiny
can only be done if the findings are perverse, unreasonable, against the
material record or based on non-consideration of relevant materials. We
may note here that the High Court has, in a singular line, declined to
interfere with the judgment and decree of the courts below stating that
they are based on concurrent findings of fact. The plea of perversity of
approach though raised was not adverted to.

28. It is worth noting that this Court, in Kulwant Kaur v. Gurdial Singh
Mann (dead) by L.Rs. and others[13], has held that while it is true that in
a second appeal, a finding of fact, even if erroneous, will generally not
be disturbed but where it is found that the findings stand vitiated on
wrong test and on the basis of assumptions and conjectures and resultantly
there is an element of perversity involved therein, the High Court will be
within its jurisdiction to deal with the issue. An issue pertaining to
perversity comes within the ambit of substantial question of law. Similar
view has been stated in Govindaraju v. Mariamman[14].

29. In Major Singh v. Rattan Singh (Dead) by LRs and others[15], it has
been observed that when the courts below had rejected and disbelieved the
evidence on unacceptable grounds, it is the duty of the High Court to
consider whether the reasons given by the courts below are sustainable in
law while hearing an appeal under Section 100 of the Code of Civil
Procedure.

30. In Vidhyadhar v. Manikrao and another[16], it has been ruled that the
High Court in a second appeal should not disturb the concurrent findings of
fact unless it is shown that the findings recorded by the courts below are
perverse being based on no evidence or that on the evidence on record, no
reasonable person could have come to that conclusion. We may note here
that solely because another view is possible on the basis of the evidence,
the High Court would not be entitled to exercise the jurisdiction under
Section 100 of the Code of Civil Procedure. This view of ours has been
fortified by the decision of this Court in Abdul Raheem v. Karnataka
Electricity Board & Ors. [17].

31. Having stated the law relating to mental cruelty and the dictum of
this Court in respect of the jurisdiction of the High Court where
concurrent findings of fact are assailed, as advised at present, we will
scan the evidence whether the High Court has failed to exercise the
jurisdiction conferred on it despite the plea of perversity being raised.
Any finding which is not supported by evidence or inferences is drawn in a
stretched and unacceptable manner can be said to be perverse. This Court
in exercise of power under Article 136 of the Constitution can interfere
with concurrent findings of fact, if the conclusions recorded by the High
Court are manifestly perverse and unsupported by the evidence on record.
It has been so held in Alamelu and another v. State, Represented by
Inspector of Police[18] and Heinz India Pvt. Ltd. & Anr. v. State of U.P. &
Ors.[19]

32. Presently, to the core issue, viz, whether the appellant-husband had
made out a case for mental cruelty to entitle him to get a decree for
divorce. At this juncture, we may unhesitantly state that the trial court
as well as the first appellate court have disbelieved the evidence of most
of the witnesses cited on behalf of the husband on the ground that they are
interested witnesses. In a matrimonial dispute, it would be inappropriate
to expect outsiders to come and depose. The family members and sometimes
the relatives, friends and neighbours are the most natural witnesses. The
veracity of the testimony is to be tested on objective parameters and not
to be thrown overboard on the ground that the witnesses are related to
either of the spouse. Exception has been taken by the courts below that
the servants of the house should have been examined and that amounts to
suppression of the best possible evidence. That apart, the allegations
made in the written statement, the dismissal of the case instituted by the
wife under Section 494 of the Indian Penal Code, the non-judging of the
material regard being had to the social status, the mental make-up, the
milieu and the rejection of subsequent events on the count that they are
subsequent to the filing of the petition for divorce and also giving flimsy
reasons not to place reliance on the same, we are disposed to think,
deserve to be tested on the anvil of “perversity of approach”. Quite apart
from the above, a significant question that emerges is whether the reasons
ascribed by the courts below that the allegations made in the written
statement alleging extra marital affair of the appellant-husband with Neeta
Gujarathi has been established and, therefore, it would not constitute
mental cruelty are perverse and unacceptable or justified on the basis of
the evidence brought on record. These are the aspects which need to be
scrutinized and appositely delved into.

33. The appellant-husband, examining himself as PW-1, has categorically
stated that the wife used to hide the pressed clothes while he was getting
ready to go to the factory. Sometimes she used to crumple the ironed
clothes and hide the keys of the motorcycle or close the main gate. In the
cross-examination, it is clearly stated that the wife was crumpling the
ironed clothes, hiding the keys of the motorcycle and locking the gate to
trouble him and the said incidents were taking place for a long time. This
being the evidence on record, we are at a loss to find that the courts
below could record a finding that the appellant used to enjoy the childish
and fanciful behaviour of the wife pertaining to the aforesaid aspect.
This finding is definitely based on no evidence. Such a conclusion cannot
be reached even by inference. If we allow ourselves to say so, even
surmises and conjectures would not permit such a finding to be recorded.
It is apt to note here that it does not require Solomon’s wisdom to
understand the embarrassment and harassment that might have been felt by
the husband. The level of disappointment on his part can be well
visualised like a moon in a cloudless sky.

34. Now we shall advert to the allegation made in the written statement.
The respondent-wife had made the allegation that the husband had an illicit
relationship with Neeta Gujarathi. The learned trial Judge has opined that
the said allegation having been proved cannot be treated to have caused
mental cruelty. He has referred to various authorities of many High
Courts. The heart of the matter is whether such an allegation has actually
been proven by adducing acceptable evidence. It is worth noting that the
respondent had filed a complaint, RCC No. 91/95, under Section 494 of the
Indian Penal Code against the husband. He was discharged in the said
case. The said order has gone unassailed. The learned trial Judge has
expressed the view that Neeta Gujarathi was having a relationship with the
husband on the basis that though the husband had admitted that she was
working in his office yet he had not produced any appointment letter to
show that she was appointed as a computer operator. The trial Judge has
relied on the evidence of the wife. The wife in her evidence has stated in
an extremely bald manner that whenever she had telephoned to the office in
the factory, the husband was not there and further that the presence of
Neeta Gujarathi was not liked by her in-laws and the elder son Vishal. On
a careful reading of the judgment of the trial court, it is demonstrable
that it has been persuaded to return such a finding on the basis of the
incident that took place on 11.10.1995. It is worth noting that the wife,
who examined herself as RW-1, stated in her evidence that Vishal was
deposing against her as the appellant had given him a scooter. The learned
trial Judge has given immense credence to the version of the social worker
who, on the date of the incident, had come to the house of the appellant
where a large crowd had gathered and has deposed that she had seen Neeta
going and coming out of the house. The evidence of the wife, when
studiedly scrutinized, would show that there was more of suspicion than any
kind of truth in it. As has been stated earlier, the respondent had made
an allegation that her son was influenced by the appellant-husband. The
learned trial Judge as well as the appellate court have accepted the same.
It is germane to note that Vishal, the elder son, was approximately 16
years of age at the time of examination in court. There is remotely no
suggestion to the said witness that when Neeta Gujarati used to go to the
house, his grandfather expressed any kind of disapproval. Thus, the whole
thing seems to have rested on the incident of 11.10.1995. On that day, as
the material on record would show, at 4.00 p.m., the wife arrived at the
house of the husband. She has admitted that she wanted to see her father-
in-law who was not keeping well. After she went in, her father-in-law got
up from the chair and went upstairs. She was not permitted to go upstairs.
It is testified by her that her father-in-law came down and slapped her.
She has deposed about the gathering of people and publication in the
newspapers about the incident. Vishal, PW-5, has stated that the mother
had pushed the grandfather from the chair. The truthfulness of the said
aspect need not be dwelled upon. The fact remains that the testimony of
the wife that the father-in-law did not like the visit of Neeta does not
appear to be true. Had it been so, he would not have behaved in the manner
as deposed by the wife. That apart, common sense does not give consent to
the theory that both, the father of the husband and his son, Vishal,
abandoned normal perception of life and acceded to the illicit intimacy
with Neeta. It is interesting to note that she has deposed that it was
published in the papers that the daughter-in-law was slapped by the father-
in-law and Neeta Gujarathi was recovered from the house but eventually the
police lodged a case against the husband, the father-in-law and other
relatives under Section 498A of the Indian Penal Code. We really fail to
fathom how from this incident and some cryptic evidence on record, it can
be concluded that the respondent-wife had established that the husband had
an extra marital relationship with Neeta Gujarathi. That apart, in the
application for grant of interim maintenance, she had pleaded that the
husband was a womaniser and drunkard. This pleading was wholly unwarranted
and, in fact, amounts to a deliberate assault on the character. Thus, we
have no scintilla of doubt that the uncalled for allegations are bound to
create mental agony and anguish in the mind of the husband.

35. Another aspect needs to be taken note of. She had made allegation
about the demand of dowry. RCC No. 133/95 was instituted under Section
498A of the Indian Penal Code against the husband, father-in-law and other
relatives. They have been acquitted in that case. The said decision of
acquittal has not been assailed before the higher forum. Hence, the
allegation on this count was incorrect and untruthful and it can
unhesitatingly be stated that such an act creates mental trauma in the mind
of the husband as no one would like to face a criminal proceeding of this
nature on baseless and untruthful allegations.

36. Presently to the subsequent events. The courts below have opined
that the publication of notice in the daily “Lokmat” and the occurrence
that took place on 11.10.1995 could not be considered as the said events
occurred after filing of the petition for divorce. Thereafter, the courts
below have proceeded to deal with the effect of the said events on the
assumption that they can be taken into consideration. As far as the first
incident is concerned, a view has been expressed that the notice was
published by the wife to safeguard the interests of the children, and the
second one was a reaction on the part of the wife relating to the
relationship of the husband with Neeta Gujrathi. We have already referred
to the second incident and expressed the view that the said incident does
not establish that there was an extra marital relationship between Neeta
and the appellant. We have referred to the said incident as we are of the
considered opinion that the subsequent events can be taken into
consideration. In this context, we may profitably refer to the
observations made by a three-Judge Bench in the case of A. Jayachandra
(supra) :-

“The matter can be looked at from another angle. If acts
subsequent to the filing of the divorce petition can be looked
into to infer condonation of the aberrations, acts subsequent to
the filing of the petition can be taken note of to show a
pattern in the behaviour and conduct.”

37. We may also usefully refer to the observations made in Suman Kapur
(supra) wherein the wife had made a maladroit effort to take advantage of a
typographical error in the written statement and issued a notice to the
husband alleging that he had another wife in USA. Thus, this Court has
expressed the opinion that the subsequent events can be considered.

38. Keeping in view the aforesaid pronouncement of law, we shall first
appreciate the impact of the notice published in the “Lokmat”. The
relevant part of the said notice, as published in the newspaper, reads as
follows: -

“Shri Vishwanath Sitaram Agrawal is having vices of womanizing,
drinking liquor and other bad habits. He is having monthly
income of Rs.10 lacs, but due to several vices, he is short of
fund. Therefore, he has started selling the property. He has
sold some properties. My client has tried to make him
understand which is of no use and on the contrary, he has beaten
my client very badly and has driven her away and dropped her to
Akola at her parent’s house.

In the property of Shri Vishwanath Sitaram Agrawal my
client and her two sons are having shares in the capacity of
members of joint family and Shri Vishwanath Sitaram Agrawal has
no right to dispose of the property on any ground.”

Immense emphasis has been given on the fact that after publication of the
notice, the husband had filed a caveat in the court. The factual matrix
would reveal that the husband comes from a respectable family engaged in
business. At the time of publication of the notice, the sons were quite
grown up. The respondent-wife did not bother to think what impact it would
have on the reputation of the husband and what mental discomfort it would
cause. It is manifest from the material on record that the children were
staying with the father. They were studying in the school and the father
was taking care of everything. Such a publication in the newspaper having
good circulation can cause trauma, agony and anguish in the mind of any
reasonable man. The explanation given by the wife to the effect that she
wanted to protect the interests of the children, as we perceive, is
absolutely incredible and implausible. The filing of a caveat is wholly
inconsequential. In fact, it can decidedly be said that it was mala fide
and the motive was to demolish the reputation of the husband in the society
by naming him as a womaniser, drunkard and a man of bad habits.

39. At this stage, we may fruitfully reminisce a poignant passage from
N.G. Dastane v. S. Dastane[20] wherein Chandrachud, J. (as his Lordship
then was) observed thus: -

“The court has to deal, not with an ideal husband and an
ideal wife (assuming any such exist) but with the
particular man and woman before it. The ideal couple or a
near-ideal one will probably have no occasion to go to a
matrimonial court for, even if they may not be able to
drown their differences, their ideal attitudes may help
them overlook or gloss over mutual faults and failures.”

40. Regard being had to the aforesaid, we have to evaluate the instances.
In our considered opinion, a normal reasonable man is bound to feel the
sting and the pungency. The conduct and circumstances make it graphically
clear that the respondent-wife had really humiliated him and caused mental
cruelty. Her conduct clearly exposits that it has resulted in causing
agony and anguish in the mind of the husband. She had publicised in the
newspapers that he was a womaniser and a drunkard. She had made wild
allegations about his character. She had made an effort to prosecute him
in criminal litigations which she had failed to prove. The feeling of deep
anguish, disappointment, agony and frustration of the husband is obvious.
It can be stated with certitude that the cumulative effect of the evidence
brought on record clearly establish a sustained attitude of causing
humiliation and calculated torture on the part of the wife to make the life
of the husband miserable. The husband felt humiliated both in private and
public life. Indubitably, it created a dent in his reputation which is not
only the salt of life, but also the purest treasure and the most precious
perfume of life. It is extremely delicate and a cherished value this side
of the grave. It is a revenue generator for the present as well as for the
posterity. Thus analysed, it would not be out of place to state that his
brain and the bones must have felt the chill of humiliation. The dreams
sweetly grafted with sanguine fondness with the passage of time reached the
Everstine disaster, possibly, with a vow not to melt. The cathartic effect
looked like a distant mirage. The cruel behaviour of the wife has frozen
the emotions and snuffed out the bright candle of feeling of the husband
because he has been treated as an unperson. Thus, analysed, it is
abundantly clear that with this mental pain, agony and suffering, the
husband cannot be asked to put up with the conduct of the wife and to
continue to live with her. Therefore, he is entitled to a decree for
divorce.

41. Presently, we shall deal with the aspect pertaining to the grant of
permanent alimony. The court of first instance has rejected the
application filed by the respondent-wife as no decree for divorce was
granted and there was no severance of marital status. We refrain from
commenting on the said view as we have opined that the husband is entitled
to a decree for divorce. Permanent alimony is to be granted taking into
consideration the social status, the conduct of the parties, the way of
living of the spouse and such other ancillary aspects. During the course
of hearing of the matter, we have heard the learned counsel for the parties
on this aspect. After taking instructions from the respective parties,
they have addressed us. The learned senior counsel for the appellant has
submitted that till 21.2.2012, an amount of Rs.17,60,000/- has been paid
towards maintenance to the wife as directed by the courts below and hence,
that should be deducted from the amount to be fixed. He has further
submitted that the permanent alimony should be fixed at Rs.25 lacs. The
learned counsel for the respondent, while insisting for affirmance of the
decisions of the High Court as well as by the courts below, has submitted
that the amount that has already been paid should not be taken into
consideration as the same has been paid within a span of number of years
and the deduction would affect the future sustenance. He has emphasised on
the income of the husband, the progress in the business, the inflation in
the cost of living and the way of life the respondent is expected to lead.
He has also canvassed that the age factor and the medical aid and
assistance that are likely to be needed should be considered and the
permanent alimony should be fixed at Rs.75 lacs.

42. In our considered opinion, the amount that has already been paid to
the respondent-wife towards alimony is to be ignored as the same had been
paid by virtue of the interim orders passed by the courts. It is not
expected that the respondent-wife has sustained herself without spending
the said money. Keeping in view the totality of the circumstances and the
social strata from which the parties come from and regard being had to the
business prospects of the appellant, permanent alimony of Rs.50 lacs
(rupees fifty lacs only) should be fixed and, accordingly, we so do. The
said amount of Rs.50 lacs (rupees fifty lacs only) shall be deposited by
way of bank draft before the trial court within a period of four months and
the same shall be handed over to the respondent-wife on proper
identification.

43. Consequently, the appeal is allowed, the judgments and decrees of the
courts below are set aside and a decree for divorce in favour of the
appellant is granted. Further, the husband shall pay Rs.50 lacs (rupees
fifty lacs only) towards permanent alimony to the wife in the manner as
directed hereinabove. The parties shall bear their respective costs.

............................................J.
[Deepak Verma]

............................................J.
[Dipak Misra]

New Delhi;
July 04, 2012

-----------------------
[1] (1981) 4 SCC 250
[2] AIR 1956 All 41
[3] (1988) 1 SCC 105
[4] (1966) 2 All ER 257
[5] (1963) 2 All ER 966
[6] (1994) 1 SCC 337
[7] AIR 2002 SC 2582
[8] AIR 2003 SC 2462
[9] (2005) 2 SCC 22
[10] (2006) 3 SCC 778
[11] (2007) 4 SCC 511
[12] AIR 2009 SC 589
[13] AIR 2001 SC 1273
[14] (2005) 2 SCC 500
[15] AIR 1997 SC 1906
[16] (1999) 3 SCC 573
[17] AIR 2008 SC 956
[18] AIR 2011 SC 715
[19] (2012) 3 SCALE 607 = (2012) 2 KLT (SN) 64
[20] (1975) 3 SCR 967

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Just for legal information but not form as legal opinion

Thursday, July 5, 2012