JAMSHED FRAMROZE KALYANVALA Vs. ZERINA JAMSHED KALYANVALA

JUDGEMENT

(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.