Jamshed Framroze Kalyanvala vs Mrs. Zerina Jamshed Kalyanvala on 7 June, 1973

    Jamshed Framroze Kalyanvala vs Mrs. Zerina Jamshed Kalyanvala on 7/6/1973

JUDGMENT

   S.K. Datta, J.

   1. This is an appeal against the order of Salil Kumar Roy Chowdhury, J.,
dated March 30, 1973 on the application of the husband under Section 49 of the
Parsi Marriage and Divorce Act (Act III of 1936). The parties were married
according to Parsi rites on December 6, 1958 and a son, Framroze, also known as
Vip, was born to them on June 22, 1960. Thereafter on September 17, 1962 a
daughter Leena was born to them. On January 4, 1967 the husband filed an
application for restitution of conjugal rights while the wife also thereafter
filed a suit for divorce or in the alternative, for judicial separation. The
wife's suit was decreed on November 15, 1967 by Sushil Kumar Dutta, J., for
judicial separation. Custody of the children was given to the father subject to
some interim orders which were passed in course of those proceedings. It was
directed thereby that the children who were studying as day scholars in St.
Xaviers and Loreto House, Calcutta would spend during the terms of their schools
four days and a half with the mother and two days and a half with the father at
their respective residences and the parents would share the children's company
equally during schools holidays.

   2. The husband's solicitor wrote to the wife's solicitor on April 2, 1969
informing that Framroze had been admitted to Bishop Cotton School, Simla which
was objected to by the wife expressing that he should be admitted to St.
Lawrence School. Coonoor. The husband insisted on Framroze being admitted to the
Bishop Cotton School whereupon the wife filed an application for an order
directing that the boy be admitted and educated at St. Lawrence School. This
application was dismissed by Masud, J., on June 14, 1969 by a judgment reported
in (1970) 74 Cal WN

   51. An appeal therefrom was also dismissed by the appeal court and the
judgment was delivered by my learned brother, reported in (1970) 74 Cal WN 261.
Thereafter the husband made an application for permission to put Framroze as a
boarder of the Bishop Cotton School, a school where the husband had his
education. The permission was given by the court by order dated January 8, 1970,
with direction regarding access of the parents to the boy. On another
application filed by the wife the court did not grant her prayer for admitting
Leena to Loreto Convent, Tara Hall, Simla at that stage giving her liberty to
apply for the same for 1973 session.

   3. The husband took out a notice of motion on March 15, 1973 supported by a
petition affirmed by him on March 14, 1973 for an order to take the children to
Delhi and to educate them in suitable day schools. In the petition it was stated
that there had been some material change of circumstances affecting the career
of the husband which necessitated a variation of the orders passed by the court.
Since June 1972 upto March 1973, the husband was without employment and he
recently got an offer for a suitable job at Delhi which he decided to accept.
This meant closure of his establishment at Calcutta and shifting to Delhi where
he was shortly expecting a decent residence. The results of the son in the Simla
school had been unsatisfactory and his progress had been retarded. He was also
unwilling to continue in the school and desired to go to any other boarding
school and would be happier to be in a day school. Leena was impressed by her
brother's experience in boarding school and was also unwilling to go to any
boarding school. Framroze's studies at Bishop Cotton School were discontinued as
he flatly refused to go there from March 1973. Leena's studies in the Loreto
house were also discontinued from January 1973 for going over to Delhi with the
father. The children were very much attached to each other and they should study
together at Delhi in day schools there, staying at the husband's house to be
looked after by him and his mother which was necessary as the children were
growing up. Along with the petition were annexed, amongst other papers, copies
of the letters of Framroze which according to husband showed his apathy and
disinclination to study at. Bishop Cotton School and preference for a day
school. It was also stated that the school had gone down in standard and most of
the boys were not coming back to the school and the letters also indicated that
the son's result was not satisfactory while his progress was retarded. The son
also made complaints of ragging by senior students. In these circumstances the
husband prayed for an order granting him leave to take the children to Delhi and
to educate them in suitable day schools there.

   4. The wife opposed the application filing an affidavit-in-opposition
affirmed on March 22, 1973 stating inter aha that the application was not bona
fide, nor was it made in the interest or welfare of the minors. The altered
circumstances as alleged were vague and devoid of particulars. It was not stated
if his service was temporary or not. The children being of tender years required
to be looked after, supervised and disciplined during the formative periods of
their lives and particularly a young girl as she grows up requires guidance and
advice of mother or alternatively should be kept in a suitable boarding house.
It was denied that the son was unhappy in his school or his progress was
retarded which was mainly on account of Hindi and Sanskrit which subjects he did
not like. The complaint of bullying by senior students over trifling matters was
not unusual for a young boy of that position and such bullying could not be
avoided. The letters did not indicate that the boy had any preference for living
with the father or that he was not desirous of living in a boarding school. The
action of the husband withdrawing the children from schools was an irresponsible
act, detrimental to their interest and was in violation of the orders of this
Court. As for Leena who was deeply attached to her brother, it was stated that
she should be allowed to live in the same place. Further, a man is not the
proper person to look after the requirements of a growing girl and the husband's
mother was too old to meet the same. It may be mentioned here that the old lady
unfortunately died in the first part of May, 1973, as stated by the husband's
counsel. It was incumbent that the girl should be in a boarding school as
otherwise she would be left along with the son in care and at the mercy of the
attendants and school holidays may not coincide with the husband's free time
while it will not be possible for the husband to be with the children
throughout. The children should accordingly be placed in boarding schools for
being looked after, guided, educated and disciplined in the formative periods of
their lives. The proposal to take the children to Delhi to be brought up there
of their own so long as the husband's employment lasted was not for the welfare
of the children but would be positively to their detriment. The fall in standard
of educational institutions at Simla was due to indisciplined conduct of the
boys and had been a general feature of the country. The wife accordingly prayed
for immediate direction on the husband to place the children in boarding schools
and she also appended to her affidavit a list of reputed public and other
schools. Some letters of the boys were also annexed to the affidavit to give
indication of the boy's mind. The son stated in the letters that some boys were
not going back to school and he would have no friends left while bullying over
food was also continuing. He also disclosed that he would like to leave the
school and wanted to go to Lovedale. It would also appear that his results were
not bad except for Hindi and Sanskrit which brought down his average marks and
position in the class.

   5. The husband filed an affidavit-in-reply affirmed on March 26, 1973,
stating that he did nothing to disentitle himself to the custody of the
children. Now that the son had joined senior school, he should be allowed to
develop his potentiality. It was denied that there was any violation of order of
court. The husband submitted that he had the right to take and maintain his
children according to his circumstances and the custody of children should be
given to him. He had obtained employment at Delhi and there are suitable schools
for schooling children there.

   6. The learned Judge interviewed the children in his chamber and noted that
they were conscious of the broken home and were sad and morose on that account.
It was also apparent that they were deeply attached to each other and would be
very happy if they were allowed to study in one school or at least in one place.
They were charmed with the prospect of living at Delhi, obviously on the
suggestion of the father. The son also indicated that he would not like to be in
a boarding house as he was afraid of ragging and bully-fag by big boys, of which
he had sad experience at Bishop Cotton School at Simla. The learned Judge did
not accede to what he called his "childish desire without experience of life".
He was of opinion that ragging and bullying were common and could not be avoided
in a day or boarding school. Accordingly he was of the view that the court was
required to consider only good boarding schools for both, with opportunity to
them to live and spend holidays with parents in turns, and the order of the
court for sharing company of children by the parents should not be disturbed
until it becomes necessary due to change of circumstances.

   7. After considering the respective contentions of counsel of the parties the
court was of opinion that as the husband's employment at Delhi was not stable,
there was possibility of the children's education being interrupted at Delhi
which would hamper their studies and proper education which again could be
avoided if they were put up in a boarding School. Accepting the contention of
Mrs. Bose learned counsel for the wife that a girl growing into womanhood and
son on the threshold of life should not be kept at Delhi, going to day Schools,
and remaining in charge of servants or old grand mother, the Court was of
opinion that the children should be put in boarding schools and choice was
between Simla and the Nilgiris. But as the husband had objection to co-education
at St. Lawrence School Lovedale, Coonoor : respecting his sentiment, the Court
selected Simla. As to ragging and bullying by big boys the Court was of opinion
that the same could not be avoided anywhere and therefore had to be left out of
consideration. It was accordingly directed that Framroze for his welfare,
benefit and future career should be put back to Bishop Cotton School to continue
his studies there and complete his education. Framroze wanted to be a pilot of
air-craft and that was the more reason that he should continue his studies there
as the background of the School was conducive to the sentiment of the boy and it
was the father who had put him in that School. The Court in coming to its
decision took notice of the notorious fact that the present day situation at
Delhi according to general opinion could not be very conducive to young minds
and growing children. Though opinions might differ, the Court had to take into
account all relevant circumstances, that is, the changing circumstances in the
matter of education, all over the country. Reiterating that the paramount
consideration being the welfare of the children, the court was of opinion, that
it would be beneficial for the children to be put in the schools at Simla,
Framroze to Bishop Cotton School and Leena to Loreto Convent. Tara Hall, Simla.
This arrangement would also mitigate their feeling of loneliness as they would
have opportunity to meet each other. The Court further directed that costs of
education of the daughter should be borne by the wife who was in a favourable
position with her job and the father would bear charges and expenses of the son
as before. The previous order as to ' access to and sharing company of children
was to continue as before and the parties were directed to take immediate steps
for getting children admitted in the schools and till that was done current
arrangement as to their custody was to continue.

   8. As already stated the present appeal is against this order by the husband.

   9. After the appeal was opened by Mr. Sankardas Banerjee (Mr. D. K. De and
Mr. Ajay Nath Ray appearing with him) for the appellant husband Mrs. Manjula
Bose appearing for the respondent wife raised a preliminary objection about the
maintainability of the appeal. Mrs. Bose contended that the appeal to the High
Court against the decision of a court established under the Parsi Marriage and
Divorce Act, 1936--here the trial court -- has been provided under Section 47 in
the said Act. Such appeal is limited only:

     "............ on the ground of the decision being contrary to some law or
usage having force of law, or a substantial error or defect in procedure or
investigation of the case which may have produced error or defect in the
decision of the case upon the merits and on no other ground."

   The trial court came to the decision regarding the place of education and the
upbringing of the children of a wrecked matrimonial home upon materials on
record and on a consideration of relevant circumstances. The question of putting
up the children in boarding schools at Delhi was never under consideration
before the trial court so that it could not be said that the decision under
appeal was the outcome of an error or defect in procedure or investigation, even
if any, in the trial proceeding. The decision under appeal according to Mrs.
Bose is neither contrary to law nor usage nor is there any substantial error or
defect in procedure or investigation which could be said to have caused error or
defect in the decision of the case upon merits. Further the appeal court, it was
contended, should not interfere even if it had a view or opinion different from
the one arrived at by the trial court. It was also stated that the court arrived
at its decision on a consideration of other relevant facts and not merely on its
opinion of the educational atmosphere at Delhi. For all these reasons it was
submitted that no appeal did lie against the impugned order.

   10. Mr. De contended on the other hand that the provisions of Section 47 are
analogous to those of Section 100 of the Code of Civil Procedure as has been
held in Dr. Harmusji M. Kalapesi v. Dinbai H. Kalapesi, where a finding of fact
regarding the quantum of

   alimony arrived at by the trial court without considering additional evidence
on record or its own findings was interfered with in appeal. It was contended
that the finding of the trial court that the atmosphere of Delhi was not
conducive to children's education and upbringing was not based on any evidence
and such an assumption led the court to exclude Delhi from its consideration
altogether. Section 47 was thus directly attracted and an appeal lay from such
decision.

   11. It appears from the judgment that the trial court expressed its opinion
about Delhi in no uncertain terms in respect of education and upbringing of
growing children there. The court took notice of the "notorious fact about
present day situation at Delhi which according to general opinion cannot be said
to be very conducive to young minds and growing children." With great respect to
the learned Judge, this opinion was arrived at without any evidence or
investigation but was based merely on assumption. This was a substantial error
and defect in procedure in complete absence of any investigation in arriving at
a finding of fact. It would further appear that the trial court, on the basis of
this opinion, completely excluded Delhi from its consideration as to its
suitability as a place of the children's education either as day scholars or as
residents of a boarding school. This assumption of the trial court about Delhi
not being conducive to children's education and upbringing produced again a
substantial defect and error in the decision of the trial Court upon merits, as,
as already stated, Delhi never came up for the trial court's consideration after
the formation of the opinion on a relevant aspect of the question at issue.
Accordingly, we are of opinion that the provision; for section 47 are attracted
and the appeal is maintainable in law against the decision based on the
assumption about the suitability of the place regarding children's education.

   12. Mr. Banerjee next contended that the father under the earlier orders of
the Court in connected proceedings between the parties was given the custody of
the children and accordingly and also as father, he had the right to determine
the places and schools in which they would get their education during the
relevant periods. Such right has been recognised and given by the Court to the
petitioner and he had done no act or has never been guilty of any conduct which
would disentitle him to have the primary right to be the guardian and also to
direct the children's education. There is also no scope for presumption that the
husband will not act for the welfare of his children and the proposal made by
the husband in the context of the relevant circumstances ought to have been
accepted by the trial court.

   13. Mrs. Bose on the other hand contended that paramount consideration in
such cases is welfare of the minor which will outweigh the right of the father
to have complete control regarding children's education and upbringing. Even
though father has been given their custody it does not mean or imply that the
children would always be under the complete control of the father as regards
their education and upbringing. Mrs. Bose referred to the decision in Rosy Jacob
v. Jacob A. Chandra Makkal, where in considering the question of custody of

   children under the Guardians and Wards Act 1890 the Court observed as follows
(p. 854-55):--

     "Merely because the father loves his children and is not shown to be
otherwise undesirable cannot necessarily lead to the conclusion that the welfare
of the children would be better promoted by granting their custody to him
against the wife who may also be equally affectionate towards her children and
otherwise equally free from blemish, and, who, in addition, because of her
profession and financial resources, may be in a position to guarantee better
health, education and maintenance for them. The children are not mere chattels:
nor arc they mere play things for their parents. Absolute right of parents over
the destinies and the lives of their children has, in the modern changed social
conditions, yielded to the considerations of their welfare as human beings so
that they may grow up in a normal balanced manner to be useful members of the
society and the guardian court in case of a dispute between the mother and the
father, is expected to strike a just and proper balance between the requirements
of welfare of the minor children and the rights of their respective parents over
them."

   14. Strongly relying on this authority, Mrs. Bose contended even though the
petitioner has been given the custody of the children as their father he does
not have any additional or extra right to determine and decide on his children's
education and upbringing in the formative periods of their lives and the wife is
as much competent to determine and decide the course which will be the best in
the circumstances for the welfare of the children.

   15. There can be no doubt as has been held above that merely because the
father has been given the custody of children and there is nothing against him
so far as the children are concerned, it cannot be said that the husband has any
absolute overriding right in the matter of children against the wife. Section 49
of the Act imposes a duty on the court to make such orders and provisions with
respect to the custody, maintenance and education of the children as the court
may deem just and proper. It is obvious that the welfare of the children is the
paramount consideration in all matters regarding their education, maintenance
and upbringing and the court in the event of a dispute will decide on the best
course for the children on the above principle. We are therefore unable to
accept Mr. Banerjee's contention that the father merely because of his position
as father and the earlier order of the court is entitled to have any absolute
say in such matters. The position will have to be considered in the light of all
the circumstances and in the context of children's welfare.

   16. Mr. Banerjee next contended that in any event the order of the trial
court cannot be sustained as it is beyond the ambit of the application filed by
the husband in so far as it directs the admission of Leena to Tara Hall, Loreto
Convent, Simla. It would however appear to us that this contention, as has been
pointed out by Mrs. Bose, is without basis inasmuch as the husband in his
petition prayed for taking the children to Delhi and to educate them there at
suitable day schools. It is also within the competence of the court to pass, on
such an application, such orders as may be found necessary for the welfare of
the children. Accordingly we are of opinion that order passed by the trial court
does not suffer from the infirmity as contended on behalf of the husband.

   17. Before we consider the case of Framroze, the question of l,eena's
schooling may be taken up for consideration. It is obvious that apart from the
husband, the only female inmate of his house was his mother, who, as we have
already noted, unfortunately died recently. In this situation it is obvious that
Leena cannot be kept in the husband's residence at Delhi in the care of servants
and maid servants during this period of her life. There is no alternative
suggestion before the court and accordingly we are of opinion that the proposal
of the wife to put Leena in Tara Hall Loreto Convent, Simla deserves approval.
The wife has taken pains, which we appreciate, to ensure an accommodation for
Leena in the said institution. In agreement with the trial court, we are of
opinion that this arrangement will be just and proper for the welfare of Leena
and accordingly we affirm the order passed by the trial court in so far as Leena
is concerned. We are also in agreement with the trial court, taking into
consideration the circumstances of the wife and her desire to pay for her
daughter's education, and we direct that expenses for education of Leena be
borne by the wife as ordered by the trial court.

   18. Coming to the question of Framroze in view of the husband's service at
Delhi and his desire to have the boy's schooling there as a day scholar residing
in his own home, the position has to be considered in this context. That is the
natural desire for a father who is of a homely type and it is not suggested that
he is not fond of his children. All these aspects have to be taken into
consideration in coming to a decision about the boy's education and upbringing.
The result of study of the boy at the Simla school does not appear to be
unsatisfactory except for Hindi and Sanskrit, but then again Hindi is the
national language and a compulsory subject. The boy has expressed a strong
dislike for the school. The trial court has disregarded the wishes of the boy.
It is true, as has been pointed out by the learned Judge, that such desire may
not always be the guiding factor to decide his welfare but all the same, that is
a factor to be considered. The trial Court considered the husband's service as
unstable and was apprehensive that the boy's education might be interrupted.
There is however no evidence to indicate that this is so and the letter of
appointment of the husband produced in court before us does not indicate that it
is basically or at all a transferable service. The trial court has also
considered the boy's aspiration to be a pilot officer and has considered Bishop
Cotton School to be suitable for the purpose. We are however unable to agree
with this aspect of the trial court's opinion as the same cannot be a relevant
consideration for determining the boys schooling when other schools may be
equally suitable for that purpose. The boy's complaint against the school about
ragging and bullying was considered by the court but it was held that it was
unavoidable in any school. It however appears to us that there is little scope
for ragging in a day school though a certain amount of bullying by senior
students may be unavoidable in some day schools. The husband's desire to have
Framroze in his residence at Delhi while prosecuting his studies at school
should be given adequate consideration and respect unless the husband has
otherwise disqualified himself by his acts and it can be presumed that a father
would take proper steps for his son's education in a suitable school. The
petitioner has indicated through his counsel his eagerness to put his son in a
suitable school as a day scholar where the session starts in July and we do not
think there is any reason for us to exclude Delhi from OUT consideration as was
done by the Trial Court. The wife's complaint that during his off hours the boy
would be in charge of the servant and husband's free hours may not always
coincide with the free hours of the son and his holidays leaving him in the care
of the servants deserves consideration but this is inevitable in most homes in
the present state of the society where both the husband and the wife happen to
be in employment. We are of opinion that in the existing circumstances the
father's prayer in the matter of education of the boy is not unreasonable. The
above arrangement appears to us to be the best arrangement that can be made for
the welfare and education of the boy in the existing circumstances. In coming to
the above decision we have not been unmindful of the submissions of the learned
counsel of the parties praying that the children in view of their deep
attachment to each other should be kept in the same place if possible. Though we
very much wish that such an arrangement could be made, we do not find it
possible to ensure it. After all, a good education and not each other's society
is the primary consideration.

   19. We accordingly dispose of the appeal by varying the order of the trial
court relating to Framroze while we affirm the order of the trial court as
regards Leena. The father is given liberty to take Framroze with him to Delhi
and to get him admitted into a suitable school there as a day scholar and during
the period of his education Framroze will reside with the petitioner at his
residence at Delhi. As to sharing the children's company by parents we direct
that parents will share Leena's company equally during holidays and about
Framroze the wife will have his company for a period of 2/3rds of the long
holidays more or less the mother having their company in the earlier part of the
holidays.

   20. The appeal is allowed in part and disposed of as above. The parties will
bear their own costs in the appeal. Certified for two counsel.

   S.K. Mukherjea, J.

   I agree.