ZERINA JAMSHED KALYANVALA Vs. JAMSHED FRAMROZE KALYANVALA

JUDGEMENT

(1.) THE present application has been made after a decree for judicial separation which was passed between the plaintiff and the defendant on November 15, 1967. On or about June 4, 1966 the respondent husband filed a suit in this Hon'ble Court for restitution of conjugal rights and other reliefs against the petitioner. On 17th June 1967 the petitioner filed the present suit against the defendant for a decree of dissolution of the said marriage and also, alternatively, for judicial separation and for other reliefs. The suits were tried one after the other. The learned Judge on the basis of a verdict of the delegates of the Parsi community delivered a judgment on 15th November, 1967 granting a decree for judicial separation. There are two children of the marriage, Framroze, the son, born on June 22, 1960 and leena, the daughter, born on September 17, 1962. The learned Judge, after taking into consideration all the relevant circumstances was pleased to give custody of the said children to the father subject to previous orders of the learned judge whereby the children were allowed to stay with the mother for 5 clays and 2 days with the father in a week. On 2nd April 1969, the father's solicitor wrote to the mother's solicitor intimating that the son had been admitted to the Bishop Cotton School, simla and necessary fees had already been paid to the said school. On 3rd july 1969 the mother's solicitor replied to the letter of the husband's solicitor expressing her desire to have her son admitted to the St. Lawrence School, lavdale in the Nilgiris. Apart from the fact that St. Lawrence is a better school than the Bishop Cotton School it is stated in the said reply that st. Lawrence is a co-educational school where the daughter also can be admitted in proper time so that the brother and sister can study together at the same place and the family ties between the brother and the sister would be deepened. It is also stated there that the St. Lawrence School is situated at a distance of a few miles from Coonoor where the mother's parents have a house and reside there for certain periods of the year. The children during the summer vacation can spend their holidays with the grand-parents and accordingly, it is suggested that the admission in the St. Lawrence School would be for the benefit and welfare of the children. The father, however, insisted that the son should be admitted to the Bishop Cotton School. The petitioner, thereafter, has made the present application on 9th July, 1969 where she has asked for an order, interalia, that Framroze be admitted and educated at the St. Lawrence School.

(2.) MR. B. K. Ghosh, counsel on behalf of the petitioner, has submitted that in the interest and welfare of the child the son should be allowed to have his education at the St. Lawrence school whereas Mr. Sankar Banerjee on behalf of the father has asked me to hold that the father's desire to have his son admitted at the Bishop Cotton school should get preference to the mother's desire to have the son schooled elsewhere.

(3.) I have given thoughtful consideration to all aspects of this matter and it appears to me that there are difficulties in acced ng to the mother's desire to get the son admitted to the St. Lawrence School. Firstly, this is not an interlocutary application in a pending matrimonial suit where considerations of a different nature have to be taken into account. In such a case, the Court should ordinarily preserve the status quo without in any way interfering with the welfare and happiness of the child, which it is well settled, is of paramount importance in all situations. In the present case the two cross-suits have been finally disposed of and Datta, j. , aggreeing with the delegates, came to the conclusion that the specific allegations of the mother against father were not proved; but although the mother could not get decree for dissolution of marriage she was granted judicial separation and naturally the father's suit for restitution of conjugal rights was dismissed. With respect to the custody of the children the learned judge, however, has categorically stat-led as follows : -"hence, there is no question of depriving the father of the custody of the children to which he is only entitled. "