: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5072 OF 2009 Adhip Lal Barua ... Petitioner V/s. Farah Barua ... Respondent Mrs.N.S. Mehta i/b Ms.Ansuya Dutt for Petitioner Mr.P.D. Ghandhy a/w Amruta Pathak i/b Ms.Aarti Sathe for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: 22nd JUNE, 2009 P. C.: 1. This petition raises a short but vexed question as to whether the son of the petitioner and the respondent should be sent to a boarding school to study instead of continuing his education in a school in Mumbai. 2. The undisputed facts in the present case are as follows: The petitioner and the respondent were married on 7.6.1992 under the Special Marriage Act 1954. Their daughter Mihika was born on 16.3.1993 and their son Shanat was born on 18.6.1996. The respondent left the : 2 : matrimonial home along with her children according to the Petitioner on 6.6.2007. Thereafter, on 14.9.2007 she filed a petition for divorce, maintenance for the children, custody, etc. An order for maintenance was passed on 19.4.2008. On 20.4.2008, a further order was passed granting custody to the respondent at the request of the children. At the same time, the petitioner was permitted access to the children. This order continues till today but often Shanat spends more time with his father than with his mother. This fact is not disputed by the respondent and in fact she agrees that there is a good bond between Shanat and his father. However, it appears that although the respondent has been allowing Shanat, at his request, to visit his father more often than permitted by the Court, it has often been preceded by an argument with Shanat. 3. Application No.233 of 2008 was moved by the Petitioner on 24.11.2008 before the Family Court for sending Shanat to a boarding school namely Rishi Valley School at Madanapalle run by the Krishnamurti Foundation, India. In the interim application it was stated that Shanat had visited the school since his cousins were studying there; he liked the atmosphere and, therefore, wanted to study in the same school. Various other reasons were mentioned for seeking permission to send him to a boarding school. 4. The interim application was opposed by the respondent contending that there was no justifiable reason to shift her son from Cathedral and John Connon School where he was studying at present to Rishi Valley School. She : 3 : contended that the boy was asthmatic and requires constant attention and medical treatment and therefore, it was impossible to even think about sending him to a boarding school. She further contended that her son was studying in a premier and prestigious school in Mumbai. He was performing well in school and therefore it was inadvisable to shift him to any other school. She further has stated that besides attending the school and coaching classes she had made arrangements for social activities for the children. She contended that she was giving emotional support to them and, therefore, no purpose would be served by shifting Shanat to a school many hundreds of miles away from Mumbai. During the pendency of that interim application, the petitioner sought permission to take Shanat to the Rishi Valley School to appear for the interview as his application for admission had been accepted by the school on condition that he passed the interview. This application was also opposed by the respondent. On 4.3.2009, an order was passed by the Family Court refusing permission for Shanat to appear for the interview at the Rishi Valley School. Aggrieved by the decision, the petitioner filed a writ petition in this Court. By an order of 9.3.2009, this Court permitted the child to appear for the interview. The learned Single Judge of this Court recorded that the respondent after some resistance had agreed that the child be taken to Rishi Valley School for the interview. The petition was disposed of by recording the terms of agreements between the parties which are as follows: 1. The minor Son-Shanat shall reside at the residence of his father- petitioner tonight. 2. The petitioner has already booked himself and his Son-Shanat : 4 : on the flight to Bangalore leaving Mumbai on 10th March 2009 at 10.30 a.m. The petitioner undertakes to book the respondent on the same flight and also book her return ticket along with the petitioner and the minor- Shanat. The expense of the respondent’s ticket for Mumbai-Bangalore-Mumbai shall be borne by the petitioner. 3. The petitioner shall provide separate accommodation to the respondent at Bangalore, on 10th March, 2009 which will be in the school premises/campus. 4. Minor Shanat shall appear for his interview at the Rishi Valley School on 11th March 2009. 5. After the said interview, parties shall return to Mumbai and the respondent will take charge of the custody of the minor Son – Shanat. 5. The learned Judge made it clear that the order was being passed without prejudice to all the rights and contentions of the parties in the petitions/applications pending before the Family Court including interim application No.233 of 2008. 6. On 30.3.009, the petitioner received a communication from the Rishi Valley School to the effect that Shanat had secured admission in the school to class 8 for the term commencing in June 2009. The school had sought confirmation of the offer of admission by securing the admission fee and the first term fee. The school also informed the petitioner that he should take note of the following: i) Once a student is admitted and given an admission number, the admission fee and fist term fee are not refundable. ii) As has been pointed out in the `Note to Prospective Parents’, not all students flourish in the ambience of this school. In particular, students who have been brought up in a heavily tutored fashion find it difficult to adjust to a more open system of learning wherein much greater responsibility rests with the child. Likewise, students who have been exposed to very affluent life-styles or to high degrees of media entertainment may not take too readily to the quieter atmosphere and the : 5 : comparatively simple standard of living that we value here. It happens to a few students that even after a year or two they are unable to fit into the culture of the school. In such cases, we recommend to the parents that the child be withdrawn. Typically, such a recommendation, if at all, will be made two years after entry into the School. iii) On finishing standard 10, students are admitted into standard 11 (for the ISC-12 course) only if the School judges that they will benefit from the type of education being offered here. Please bear in mind that entry to class 11 will be treated as a fresh admission. 7. The petitioner therefore sought an urgent hearing of the interim application for sending Shanat to a boarding school as it was in the best interest and welfare of the child and in accordance with the child’s wishes. The Family Court thereafter heard the matter and by an order dated 3.6.2009 rejected the application. Aggrieved by this decision the petitioner has approached this Court. 8. The main contentions raised by the learned Counsel for the Petitioner are that the home environment in which Shanat lives is not conducive to his mental, physical and emotional well being. It is submitted that quarrels have erupted between the mother and the son often, only because the mother has at every opportunity tried to control the son unreasonably by refusing him permission to visit his father. It is further submitted that the child who suffers from asthma would be better off in a school where the environment would be unpolluted and friendly and he would not have to face the psychosomatic problems leading to asthma. The learned counsel invited my attention to the order of 20.4.2008 passed by the Family Court under which the custody of the children was handed over to the mother. The : 6 : children wanted to be with their father on the weekends and were accordingly permitted to do so. The Family Court has recorded that the children were willing to meet their father on Tuesday evening for dinner as well. They were allowed to go for a holiday with their father for 15 days in May 2008. The Family Court recorded that this arrangement was worked out specifically with the consent of the children. 9. The learned advocate for the petitioner points out that despite this arrangement, Shanat is increasingly spending more time with his father. However, according to her each day when he wishes to visit the father or stay with him, he has to face an ordeal at home because of the unreasonable restrictions of the mother to visit his father. She then submits that the only reason given by the mother for not consenting to send Shanat to a boarding school is that, being an asthmatic patient he requires constant attention and monitoring of his medication. The learned counsel feels that this problem can be dealt with adequately in Rishi Valley where she submits that the frequency of the attacks would be reduced because of the psychosomatic problems which the child faces in Mumbai would be absent. She points out that if asthma was such a problem for Shanat, the respondent would not have suggested that she take him for a holiday to Laddakh in May 2009 where due to the rarified atmosphere breathing is a problem even for a non asthmatic person. She also points out that assuming such an attack was to occur in Rishi Valley, there are medical facilities available on the campus to grapple with this problem. The school has oxygen cylinders and nebulisers which are required for patients suffering : 7 : from asthma. The learned Counsel then submits that the atmosphere and environment in Rishi Valley School would allow the child to blossom into an intelligent, emotionally stable, confident and good citizen. 10. The learned Counsel for the respondent submits that the writ petition should be rejected as there is no perversity in the order passed by the trial Court. He submits that the writ jurisdiction of this Court can be exercised only in circumstances where the petitioner is able to show that there is an error apparent on the face of the record or there is some perversity in the order or the order has been passed contrary to the settled principles of law. He submits that not one of the aforesaid ingredients is attracted in the present case and, therefore, the petition should be rejected. 11. The learned Counsel then submits that sending Shanat to a boarding school is not in his best interest as he has been studying in a premier school in Mumbai since the age of 5 and no cogent or germane reasons have been given by the Petitioner to disturb him in class 8. According to the learned Counsel, the child is doing very well academically as well as in extracurricular activities. He submits that the respondent is a member of a prominent gymkhana in Mumbai which is close to the residence and the school and therefore the child is able to avail of the sports facilities of the gymkhana. The learned Counsel points out that the child enjoys an affluent lifestyle and would be unable or in any case would find it hard to adjust to the life in a boarding school. The learned counsel then submits that due to the two visits to the school, the child may have got enamoured by the : 8 : environment of the school, but, that would not be an informed decision of the child. He further submits that the school cannot be changed merely at the whim of the child or the petitioner, especially when it entails sending the child to a boarding school where he would be bereft of the company of his parents and his sister. The learned Counsel then brings to my notice the child’s school reports to demonstrate that he is doing well in school and therefore should not be disturbed at all in class 8 when he is just 2 years away from the board exams. The learned Counsel draws my attention to the prospectus of the school and submits that Shanat can be admitted to the school even in standard 11 when he would be much older and stronger, both emotionally and physically. He then submits that the monsoon is approaching which could result in Shanat suffering from heavy breathing, wheezing or at the worst an asthmatic attack. In such circumstances, according to the learned Counsel, it is imperative that the child stay in Mumbai in the company of his parents where his medication can always be monitored. The learned Counsel then points out that the fees of Rishi Valley are inordinately high and therefore it is surprising that the petitioner wants to send the child to that school when he has stated in his reply to the application for interim maintenance that he could not afford the fees of the Cathedral school. The learned counsel submits that the petitioner’s insistence on sending the child to a boarding school is only to deprive the mother of the custody of her son. 12. While dealing with such cases, there are certain settled principles which the Court must bear in mind. The welfare of the child and not a : 9 : statutory right of the parents is of paramount consideration. The Court must ascertain the child’s wishes and consider whether the child is old enough to form an intelligent preference. Further, the Court must bear in mind the emotional support which the child needs at this tender age. Such a petition cannot be treated in a cut and dry manner as other writ petitions as the Court is faced with a human problem as to whether to uproot the child from the environment where he or she is living at present and to send the child to a boarding school. The court must take into consideration whether the family environment is full of tension, stress and strain which causes a disruption in the normal and mental growth of the child, consequently affecting the child’s education. The court must also bear in mind that it exercises parens patriae jurisdiction and it must give due weightage to the child’s ordinary comfort, contentment, health, education, intellectual development and favourable surrounding. Thus while dealing with such matters the court has to approach the problem humanely and cannot adopt a pedantic or doctrinaire attitude. 13. Bearing the aforesaid principles in mind, I will now proceed to deal with the matter. The first issue which arises is whether it is necessary to uproot Shanat from the environment in which he lives today and to send him to a boarding school. I had interviewed him in my Chambers both before and after the arguments were heard. I found him to be an intelligent child capable of knowing his own mind and showing an intelligent preference. However, he did appear to be nervous, possibly overawed by the situation. While talking to him, I found that he loved both his parents : 10 : dearly and would ideally love to stay with both of them. But he realises the predicament in which he is in and is trying to make the best of the situation. However, he did mention to me that his desire to go to a boarding school is only in order to avoid the constant bickering with his mother when he desires to go to his father’s residence. He mentioned to me that going to a boarding school would avoid these confrontations with his mother on almost each day, enabling him to have peace of mind. I wondered whether these statements were due to “indoctrination by the father” as Mr.Ghandhy, the learned Counsel for the Respondent chooses to call it. However, this was not so. He had cogent reasons for wanting to go to the boarding school and the prime reason being that he wanted to avoid conflict between himself and his mother so that both could live in peace and harmony. In fact he even apprehended that if this sort of attitude continued on both his part as well as his mother, the day was not far off when they would be driven far away from each other emotionally. On my suggestion that his custody could be with his father and he could continue in Mumbai, meeting his mother as often as he liked he did not feel that the situation that he is in today would improve. Instead he felt it would worsen. I found during my conversation with him that it was almost a cry for help from him to be sent to a boarding school because he dearly loves both his parents and did not want any confrontation between either of them or with either of them. This to my mind is not an unreasonable expectation of a normal child. Shanat also mentioned that the school environment was not too congenial and far too competitive although he participates in activities in the school. For a child of 13 to agree to change his school in which he has been studying for eight : 11 : years and be away from his friends in the school is reason enough to acknowledge the fact that he is not happy with the environment he is in today. Therefore, going by Shanat’s wish, a boarding school would be the proper environment in which he should live. 14. However, a 13 years old boy’s wishes cannot be the only criterion for uprooting him from the home environment. Mr.Ghandhy has relied on the judgment in the case of S.Rama Iyer v/s. K.V. Natarajan Iyer, AIR 1948 MADRAS 295 and in the case of Kum. Sunita and others v/s. Smt.Shyam Kali, AIR 1982 ALLAHABAD 1. In these judgments, the Madras High Court as well as the Allahabad High Court has held that a child of 13 or 14 cannot form an independent intelligent preference in matters relating to his custody. The Madras High Court had opined in the case of S.Rama Iyer (supra), that the minor’s opinion in circumstances such as found in the case which it decided was not entitled to any consideration at all. The Allahabad High Court while referring to S.Rama Iyer’s case (supra) reiterated the view taken by the Madras High Court. 15. The conditions prevalent in society when the decision was delivered by the Madras High court were quite different from today. Children were only seen and hot heard then. It is true that all children even today may not be able to form an intelligent, preference. However, the child in the present case is intelligent, articulate and knows exactly what he wants and therefore is able to form an intelligent preference of wanting to study in a boarding school in order to avoid the conflicts at home. In the case of Nil Ratan : 12 : Kundu & anr. V/s. Abhijit Kundu, 2008(9) SCC 413, the Supreme Court has observed that if the minor is old enough to form an intelligent preference, such preference must also be considered although the final decision rests with the Court. The Supreme Court in that case was dealing with a child of six who refused to stay with his father and preferred to stay with his grandparents. In the facts and circumstances of that case, the Supreme Court after speaking with the child, directed that for the well being of the child it would be necessary to ensure that the custody of the child was with his maternal grandparents rather than the father. The Court observed that the trial Court ought to have ascertained the wishes of the child in a custody dispute. 16. I am aware that the parties before me are not at loggerheads regarding the custody of their son. However even in a situation such as the present one, the Family court ought to have ascertained the child’s wishes. In the present case, unfortunately, the trial Court has not cared to interview the child after the application was filed in November, 2008. The family Court has not bothered to ascertain whether the child, Shanat, continues to have the same preference as he did when he was interviewed a year earlier. As I have already stated I have spoken with the child in the privacy of my chambers and have concluded that he is an articulate child who can make an intelligent preference. He realises that a more discipined life in a boarding school would enable him to lead a healthy lifestyle and deal with his problems of asthma and overweight. : 13 : 17. As regards the progress of the child in school, there is no doubt that the reports which have been annexed to the petition as well as those annexed to the affidavit in reply indicate that the child is well adjusted in the school and is an all round student who is a member of the basket ball team of his school. The latest report i.e. the 7th standard report shows that he has obtained a first class and secured 70% in the first comprehensive examination of the 7th standard, a fall of 5% from the earlier period. The Headmistress has noted that the child is interactive in class and has a flair for creative writing which is evident from the English assignments given in the class. However, his work habits require improvement which would enable him to do much better in class. In the second comprehensive examination for the same class, it has been recorded that his conduct is very good. He is an all round student and a member of the basket ball team. However, the report card shows two types of grading. One is the test grade and the other is effort grade. I have been informed by the parties that the effort grade is allotted for the work done in the school. In July 2008, i.e. soon after the order for access was passed, Shanat’s test grades did not compare favourably with the efforts put in by him in the school. In the second term report which indicates that he was promoted to the 8th standard, there is a greater difference between the effort grade and the test grade. Obviously, therefore, it means that while in school his work proceeds in a better manner than while he is working at home as reflected in his test grades. There is no doubt that the reports indicate that Shanat seems to be very well adjusted and is performing well in the school. But my talk with Shanat leads me to believe that he dislikes the overly competitive attitude : 14 : demonstrated by his peers and expected of him by his mother and teachers. The child is no doubt at an impressionable age but I gathered from Shanat that the main reason that he wants to go to a boarding school is to avoid any confrontation between his mother and himself which occurs when he wants to spend the night with his father or have dinner with him. He feels restricted in his movements and would ideally like to spend time with each of his parents without any compulsion. It appears that the parents are residing about 3 or 4 buildings away from each other and, therefore, the daily insistence on going to the father’s place becomes even more aggravated. In these circumstances, in my opinion, it would be advisable to send Shanat to a boarding school where he would be able to blossom, free from the emotional turmoil which he seems to be undergoing today. It is apparent from the talk that I had with him that he has kept up a facade in the school where his schoolmates do not know that his parents are separated. This