A divorced woman cannot be considered a 'deserted woman' for the purpose of claiming a seat reserved for 'deserted women' in professional courses, as the subsistence of marital relationship is a sine qua non for sustaining the plea of desertion.

RAJU, J.

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

2. (a). The State Government and the Selection Committee for the course in question who were the respondents in the writ petition are the appellants before us. The respondent herein has filed W.P. No. 13987 of 1994 (since reported in 1995-1-L.W. 330 = 1995 Writ L.R. 180) praying for a writ of mandamus, directing the respondents in the writ petition to publish the merit list of selected candidates for the seats reserved for the category of deserted women and allot one seat to her for the M.B.B.S. Course for the academic year 1994-1995. The claim of the respondent before the learned single Judge in the writ petition was that she belonged to a Backward Community, that she was married to one C.P. Easwaramoorty, that on account of his misbehaviour and acts of cruelty she could not continue to live with him and was forced to live away from her husband having been driven out of the family of her husband even within six months from the date of her marriage, that at the time of her marriage she had completed 10th standard only and after she was driven out by her husband she was residing with her parents and continued her studies and successfully passed her Higher Secondary Course (Academic) in the Public Examination held in the year 1994. It was also stated for the respondent that in the meantime, she came to know that her husband got married to one baby and the said lady on her marriage also gave birth through the respondents husband a female child on 25-10-1993 and since efforts made by the well wishes and parents failed, she was constrained to file H.M.O.P. No. 2 of 1994 on the file of the Court of Subordinate Judge, Sankagiri for divorce and the marriage itself was dissolved by the said Court by granting a Judgment and Decree for divorce on 15-4-1994.

(b). It may be stated at this stage that as could be seen from the order of the Sub-Court, dated 15-4-1994 in H.M.O.P. No. 2 of 1994 that the divorce was sought for under Section 13(1)(i) of the Hindu Marriage Act, 1955, that both parties were present before Court, that the respondent to the said petition (the husband of the respondent before us) made an endorsement on the Petition stating that he had no objection is allow the petition filed by his wife and that, therefore, the petition filed by the wife was allowed as prayed for. This aspect has to be specifically referred to on account of the conflicting claims made by the parties appearing on either side regarding the ground of claim or the basis for the grant of a decree for divorce. No doubt, a perusal of the copy of the Petition doubt, a perusal of the copy of the Petition filed before the Sub-Court in H.M.O.P. No. 2 of 1994, made available in the typed set of papers filed on behalf of the respondent before us, would also show that Petition was filed under Section 13(1)(i) of the Hindu Marriage Act, 1955 though it is found stated at the end of paragraph VIII of the Petition that the petitioner therein (respondent herein) has come forward with the said Petition for divorce on the ground of desertion and second marriage. Section 13(1)(i) of the Hindu Marriage Act, 1955 reads ‘has after the soleminisation of the marriages had voluntary sexual intercourse with any person other than his or her spouse,”. During the course of hearing of the appeal before us, we have informed the counsel to first make their submissions on the assumption and footing, without need for adjudicating specifically on the issue, that the decree for divorce was sought both on the grounds of desertion and adultery a