ZERINA JAMSHED KALYANVALA Vs. JAMSHED FRAMROZE KALYANVALA

JUDGEMENT

(1.) THIS appeal is directed against an order by which Masud, J. dismissed an application made by a mother under section 49 of the Parsi Marriage and divorce Act for a direction that her minor son be educated at Larwence school, Lovedale in the Nilgiris. By the said order, the learned Judge in effect refused to interfere with the decision of the boy's father to educate him at bishop Cotton School, Simla. The mother is the appellant before us. In a matrimonial action brought by her against her husband for a decree for dissolution of marriage or judicial separation, S. K. Datta, J. passed a decree for judicial separation and granted the custody of issues of the marriage to the father. There are two issues, a boy and a girl. By an earlier order his lordship had directed that during school terms the boy should reside four days and a half in the week with his mother and two days and a half with his father.

(2.) THE decree was passed on november 15, 1967. By a letter dated April 2, 1969 the father's solicitor intimated to the mother's solicitor that the son had been admitted into the Bishop cotton School, Simla and his fees had been paid. He was to join the school in march 1970. On July 3, 1969 the mother's solicitor promptly replied to the letter and alleged that in 1966, after a discussion with the boy's maternal grandfather, the father had agreed that if the boy could be admitted to lawrence School nothing could be better; that arrangements have been made for his admission into the school, thanks to the exertions of the grandfather; that Lawrence School is a better school than Bishop Cotton School; it is also a co-educational school and therefore if the boy's sister passes the Entrance examination in 1971 she may also go to the same school; in that event, the brother and the sister could be together which would strengthen family ties between the two; and last but not the least, the boy's grandparents have a home at Coonoor, only a few miles from lovedale where he can spend his summer holidays under the care of his grandparents, avoid the heat of calcutta and not be compelled to live in any empty school or go elsewhere on excursion. The boy, it was said, will be lonely at Simla throughout his school years and will have no home to go to; at Coonoor he will have the hospitality of a home during the holidays; a child likes going to a, school as a boarder and not as one who has been banished from home.

(3.) I have given a synopsis of the letter only because it sums up the arguments advanced on behalf of the appellant. The appellant did not wait long for a reply. On the fifth day her solicitors took out a notice of motion and asked for the direction I have spoken of. Her other prayers were : - (i)directions be given for the custody of the boy during the school vacations of the Coonoor School and (ii) his sister be also permitted to go to the Coonoor school when she is eligible to do so. As the learned Judge could not persuade himself to give any direction for the boy's admission into the Coonoor school he did not find it necessary to make any order for custody of the boy during the holidays. As for the other prayer the learned Judge found it unnecessary to give any direction for the girl's education because she is yet to complete her course at Loreto School, calcutta and it will be sometime yet before a school will have to be chosen for her.