1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. (IPMP) PETITION NO.1 OF 2009 IN PARSI SUIT NO.5 OF 2006 Mrs.Hutoxi Minoo Panthaki. ...Pettioner. Vs. Mr.Kersi Jamshed Divecha. ...Respondent. .... Ms.Sanober P. Nanavati for the Petitioner. Ms.F. Contracter for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD, J. July 6, 2009. P.C. By an order dated 24th February 2009, Hon’ble Mr.Justice S.C. Dharmadhikari allowed an Interim Petition in terms of prayer clauses (a) and (c) by which, custody of two minor children aged about 12 and 16 was granted to the mother. An appeal against the judgment of the Learned Single Judge has been admitted by the Division Bench. By an order dated 1st July 2009, the Division Bench 2 clarified that the prayer for seeking a change in the educational institutions where the children are studying, which had not been dealt with in the judgment dated 24th February 2009, should be canvassed by a fresh petition before the Single Judge. In terms of the liberty granted by the Division Bench, an Interim Petition has been filed, seeking the permission of the Court to allow the Petitioner to seek admission for her two children in educational Institutions close to her place of residence at Vikhroli. 2. Of the two children, Jehan is sixteen and is presently studying in the XIIth Standard at Burhani College at Mazgaon. The younger child, Sheroy, is twelve and is studying in the VIIth Standard of the S.S.C. Section at St.Mary’s School, Mazgaon. The Petitioner, the Court has been informed, resides at P17/10, Godrej Hill Side Colony, L.B.S. Marg, Vikhroli (West), Mumbai, and is stated to be employed as an Assistant Manager in Godrej and Boyce Manufacturing Co. Pvt. Ltd. Presently, both the children commute from Vikhroli to Mazgaon. In paragraph 10 of the Petition, it has 3 been averred that Sheroy leaves home at 7 a.m. in order to be in time for school which commences at 8.30 a.m., while Jehan leaves home at 8 a.m. to attend his classes. The Court has been informed that Sheroy returns home at 4.30 p.m., while Jehan returns home at 6.30 pm. 3. Evidently, a situation where both the children have to travel the long distance between Vikhroli and Mazgaon in order to commute between home and the School needs to be rectified. Both the children are at an age where it would be in their interest and welfare to pursue education in an institution close to home. Long travelling times may be a hard reality for adult commuters in Mumbai, but at least in so far as young children are concerned, it needs no line of involved reasoning to conclude that this would lead to a veritable deprivation of the joys of childhood. The judgment of this Court dated 24th February 2009 relies extensively on the observations of the Counsellor. In paragraph 51 of the judgment, the Learned Judge recorded that both the children appeared to be 4 unhappy and uncomfortable in their then surroundings at Mazgaon and were desperate for a change in their educational institutions and surroundings. 4. The Advocate appearing on behalf of the Petitioner stated that for both the children admission to educational institutions in the vicinity could not be obtained for want of a School Leaving Certificate. The Respondent addressed a letter on 29th May 2009 to the Principal of the Udayachal High School which is a facility managed by Godrej and Boyce Manufacturing Co. Ltd., calling upon the Principal to refrain from granting admission to Sheroy in the School on the ground that this would amount to a violation of certain oral observations which were made during the course of the hearing of the appeal by the Division Bench. An Advocate’s notice was addressed thereafter on 30th May 2009 to the Principal of the School. Counsel urged before the Court that the Petitioner, in the interests of the welfare of the children seeks admission to reputed Institutions in the vicinity of her home. In the case of Jehan, it has been stated that 5 as a matter of fact, provisional admission has been obtained in the K.J. Somaiyya College, while for Sheroy admission would be obtained at Udayachal High School, Vikhroli which is barely half a kilometer from their residence. Udayachal High School, the Court has been informed, is managed by the same employer where the mother is presently employed. 5. On the other hand, it is urged on behalf of the Respondent that in the event that the appeal before the Division Bench is allowed and the order of the Learned Single Judge is set aside, it would be difficult to seek readmission to the children to the two institutions where they are presently studying. 6. There can be no manner of doubt that the welfare of the minors would lie in their pursuing education in institutions which are close to the place of residence. Both the proposed institutions where the mother seeks to get them admitted are reputed institutions. There is no reason to believe that either their interest or welfare would 6 suffer on admission to these institutions. On the contrary, the long hours that are spent in transit at present is a matter of considerable inconvenience to the two children. The reluctance of the father to agree to the proposal of the mother is incomprehensible. It is only to be expected that a parent who is concerned with the welfare of the children would not countenance a situation where a child has to commute long distances in order to reach the place of study. Unfortunately, parents in conflict lose sight of the genuine concerns of children whose welfare they have to protect. The Court is required to step in, in order to pass just and equitable orders that would protect the interest of the minors in this case, in order to obviate the serious inconvenience involved in long hours of travel. The appeal is still pending before the Division Bench. However, the Court will have to pass an order in the interests of the welfare of the children. The Division Bench by its order dated 1st July 2009 observed that the issue of a change of school had not been dealt with in the judgment of the Learned Single Judge dated 24th February 2009 and that it was appropriate that a fresh petition be filed in the suit for 7 seeking a relief of a change in the school of the children during this Academic Year. The paramount consideration has to be the welfare of the children today. Both the children must have the opportunity to have a normal childhood. The mother is legitimately entitled to believe that a normal childhood can be restored to them by providing them access to an educational institution which is close to home. 7. The Petition, therefore, has to be allowed and is accordingly allowed with the following directions : -(i) The petitioner is permitted to seek admission for Sheroy in the VIIth Standard at Udayachal High School at Vikhroli and for Jehan at the K.J. Somaiyya College of Arts and Commerce at Vidyavihar; -(ii) In view of the permission which has been granted in clause (i) above, the Petitioner would be at liberty to place a copy of this order before the Heads of the Institutions concerned so as to facilitate 8 the grant of a School Leaving Certificate; -(iii) The Respondent shall cease and desist from addressing any communication to the Educational Institutions where the children are studying or where permission has been granted by this Court for their transfer, indicating any arrangement in conflict with the direction of the Court. The Petition is accordingly disposed of. ......