D.P. Mohapatra, J.
1. This appeal is directed against the order dt 28-4-1982 of the District Judge, Ganjam-Berhampur in Misc. Judicial Case No. 37 of 1982. Smt Meera Devi Agarwal, the appellant, is the wife of Shri Shyam Sundar Agarwalla, the respondent. Both of them belong to Marwari Community and come from families of businessmen. They were married in 1971 and out of the wedlock was born a son, Sanjaya in 1974, who is the central figure in this unfortunate controversy. The proceeding was initiated on an application filed by the respondent under Sections 7, 8, 9, 10 and 12 of the Guardians and Wards Act, 1890. By the order dt. 16-4-1983 of the trial Court the application was treated to be one under Section 25 of the Act The said order is not in challenge in this appeal. The respondent in his application stated inter alia that his marriage with the appellant failed almost from the inception; the differences between them are irreconcilable and there is no possibility of their living together and making a happy home.
The respondent lives at Bhubaneswar in connection with his business. The appellant with the minor lives in a rented house in Gandhinagar area at Berhampur. She is uneducated and is incapable of giving the boy a good and proper education. The respondent further alleged that he used to regularly visit the school where Sanjaya studies and meet him there. During one such visit the boy expressed his desire to join a Public School preferably at a hill station. Since this had also been in the mind of the respondent for some time he arranged a seat for the boy at Saint Soldier Divine Public School at Simla. But due to the non-co-operative attitude of the appellant the boy could not join that shcool. Sanjaya is aged about 10 years and reads in Standard III in the David Nursery School at Sorhampur. According to the respondent, he felt compelled to make the application for the sole purpose of ensuring that the boy gets a good and proper education. This purpose cannot be achieved if Sanjaya continues to live with his mother (appellant) who is an uneducated person. He prayed for being declared/appointed as legal guardian of the person and properties of the minor Sanjaya Agarwal and for a direction that the minor be sent to the Public School as arranged by him.
2. The appellant in her counter challenged the bona fides of the respondent in filing this application. She alleged that the application has been filed out of the respondent's wrath and spits towards her only with the sole purpose of depriving her of the company of her only child and thereby subjecting her to mental torture. She denied that the change proposed in the application filed by the respondent is not really for the interest of the minor. She pleaded that at this tender age the boy needs love, affection and attention of the mother and should not be shifted from Berhampur. She also averred that Sanjay has been admitted to a fairly good school at Berhampur and he is doing well in the class. She made various allegations relating to the personal character of the respondent and the immoral life led by him. But it is unnecessary to state them since the learned counsel for the appellant at the commencement of his argument stated that keeping in view the best interest of the parties, particularly the minor, he does not intend to press these allegations.
3. During the trial which was fairly protracted, the Court made several attempts to bring about a reconciliation between the two spouses and tried to impress upon them that they should try to forget the past and turn a new leaf in life in the interest of their off-spring, but unfortunately his attempts did not succeed. On consideration of the materials produced before him the trial Court came to hold that keeping in view the welfare of the minor, guardianship and custody should be left with the mother i.e. the appellant. Regarding the education of the minor, he concluded that it would be in his interest to be admitted to a boarding school at Kodaikanal and permitted the father to take him there subject to certain conditions. On ultimate analysis the trial Court gave its decision in the following terms :
'(1) Sanjay should continue to remain in the custody and under the guardianship of his mother, the respondent.
(2) The petitioner is entitled to educate Sanjay in the Kodaikanal Public School by bearing all expenditure. In that event, he shall make a cash deposit of Rs. 36,000/- covering annual expenditure for six years at the initial stage, in a nationalised bank in such manner that out of the said deposit the annual expenses of Sanjay in Kodaikanal Public School shall be paid to the principal. He should produce such evidence in Court before admission. Further direction for deposit shall be given as and when necessary.
(3) On such deposit being made and on admission of Sanjay in Kodaikanal a Public School being assured, the respondent shall accompany the minor to Kodaikanal Public School and place him in the custody of the principal for the purpose of education. The petitioner shall also accompany the minor. If the respondent fails to perform the duty, referred to above, cast on her, the petitioner shall make an application to the Court for handing over the custody of the minor to him only for the purpose of admission in the aforesaid Public School.
(4) On each occasion when Sanjay will go to Kodaikanal and return home during vacations, he shall be accompanied by the respondent and the petitioner. The costs of journey of the minor and the respondent shall be borne by the petitioner. If the respondent shall like to be accompanied by any other person, the said person shall bear the journey expenses.
(5) During school session and in accordance with the rules and regulations of the school, the parties shall be free to meet Sanjay at Kodaikanal as and when they feel necessary.
(6) Sanjay shall be free to write letters tothe parties.
(7) During vacations Sanjay shall stay with the respondent. The petitioner shall, however, he free to visit him and take him out temporarily but on each occasion he should leave Sanjay with the respondent. The brothers of the petitioner and their family members, the parents of the petitioner and the parents, brothers and the members of the family of the respondent may also visit Sanjay during vacations.
(8) The order is effective till Sanjay attains majority'.
4. In this appeal, the mother has challenged that part of the order of the Court below directing that the minor be admitted to a boarding school at Kodaikanal and permitting the father to take him there for the purpose. The respondent has filed a cross-objection challenging the order of the Court below that the custody and guardianship of the boy should be left with the mother and the other conditions imposed by the trial Court.
5. The learned counsel appearing for both the parties have advanced elaborate arguments and have cited a number of decisions in support of their submissions. The gist of the contentions of the learned counsel for the appellant is that the Court below having rejected the prayer of the respondent for custody of the minor had no jurisdiction to pass further directions regarding latter's joining a boarding school. He has also reiterated the stand taken in the trial Court that in the facts and circumstances of the case as available from the materials produced in the proceeding, it is not in the best interest of the minor to be shifted from Berhampur. The learned counsel for the respondent on the other hand, contends that in view of the admitted position that the financial resources at the disposal of the appellant are extremely limited and she is not in a position to provide a comfortable and healthy living for the child, the Court below should have held that she will not be able to meet the expenses for his education which is so important for a male child, and should have left the custody and guardianship of the minor with the father. The learned counsel however stated that there is no doubt that the mother should have the company of the child whenever possible even if custody of the child is left with the father.
6. At the outset, I must observe that the test before the Court is complex and difficult. The problem is such that it needs more a humane approach rather than a legal or technical one. It is really unfortunate that the spouses who were expected to lead a happy married life and set up a happy home for their child have fallen apart and the differences have gone to such an extent that they have become irreconcilable. Still the Court hopes that some day the parties would realise their responsibility and would do everything possible, even at the cost of considerable personal sacrifice, to make life easy and comfortable for their offspring.
7. Before discussing the facts of the present case as they appear from the materials available on record, it would be useful to quote some observations of the Supreme Court in the case of Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka AIR 1982 SC 1276 (Para 17):
'The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor'.
In the same decision while considering the question whether the minor should be taken to a boarding school, the Court observed as follows (Para 27) :
'In a happy home the children are free from any kind of unhappy tension and psychological strain and they grow up in a healthy environment where their interests and welfare are properly looked after by their parents. In such a case, the Court is naturally not called upon to interfere and to consider the welfare of the children and the welfare of the children is well taken care of by their parents whose primary concern is to see to their interest and welfare. It may, however, be mentioned that even in cases of happy homes where the children have a very congenial atmosphere for their healthy growth and are very well looked after by their parents, the parents, in many cases do send their children to Boarding Schools. The parents do so, as the parents feel that the interest and welfare of children will be better served, if they are sent to a good Boarding School where the children, on their own and in the company of their fellow students, will have a greater and better opportunity of developing their personality and shaping themselves properly under the supervision of competent teachers to enable them to fashion their lives properly and face bravely and squarely the hard realities of world. A good Boarding School has very many advantages and is in a position to enforce proper discipline which is obviously necessary for healthy growth of every child. It is well known that mainly because of such desire on the part of very many of the parents to send their children to a good Boarding School, seats are hardly available in a good Boarding Institution these days and seats have to be booked well in advance. Loving parents who send their children to Boarding Schools for education, have generally to do so against the wishes of the children. Children will naturally not be inclined to stay away from their affectionate parents and to leave their happy homes where they enjoy not only the affection and care of their parents but also all the homely comforts and they do not like to be subjected to the rigours of strict discipline enforced in a Boarding Institution.
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Fond parents bearing only in mind the interest and welfare of their children still send their loving children to Boarding Schools against the wishes of the children, sacrificing themselves the company of their children at home, and persuade their children to adjust themselves in the Boarding School and they go on encouraging their children to enable them to settle down in that institution. Parents do so at considerable sacrifice to themselves, only in the hope and expectation that the interest and welfare of the children will be best served'.
8. The learned counsel for both the partieshave placed before me in extenso the evidenceof the witnesses. The material facts and salientfeatures which emerge therefrom are :
(a) Sanjay has been living with his mother (appellant) since the estrangement between his patents:
(b) The appellant and the mother of the respondent live with Sanjay in a rented house comprising of two rooms in Gandhinagar area in Berhampur. No male member lives with them.
(c) The financial resources at the disposal of the appellant and the mother of the respondent are extremely limited. Indeed, the appellant has categorically stated in the deposition that she has bank balance of Rs. 8,000/- and her mother-in-law (R. W. 2) stated in her deposition that she has some money lending business but she was unable to give any particulars of such business ;
(d) The mother of respondent, a lady aged about 70 years, has been living separately from her husband and her four sons since 1980 ;
(e) The two ladies with whom Sanjay lives are almost illiterate. They have a little knowledge of Hindi but do not know how to read or write English.
(f) The respondent stays alone at Bhubaneswar. He has to go out of Bhubaneswar frequently in connection with his business activities; and
(g) The financial resources at the disposal of the respondent are quite adequate to meet the expenses for sending Sanjay to a Boarding School at Kodaikanal
From the aforesaid, it is clear that while the financial resources at the disposal of the respondent are much more than those of the appellant and he is in a position to provide for a more comfortable living for Sanjay, he has all along remained with his mother and has never left her company. At this stage, it has to be borne in mind that Sanjay is at a very tender age and at this formative period of life he needs the constant company, love and affection of both the parents or at least one of them. As already noticed the respondent would not be able to give constant company to Sanjay since he has to remain absent from Bhubaneswar very often in connection with his business activities. If Sanjay lives with his father, he is bound to be left in the care of servants or other strangers which may prove a mental strain and psychological setback for the young boy. It is well established that while deciding the complex and delicate question of custody of a minor child, the Court is required to strike a balance between the two alternatives taking into consideration the welfare of the minor. A perusal of the impugned order shows that the court below has kept this principle in view in coming to the conclusion that it will be in the best interest of the minor to leave his custody and the guardianship with the mother. On careful consideration of the evidence on record, I am of the view that the decision of the Court below on this point is proper and reasonable in the facts and circumstances of the case.
9. Next coming to the question of education of minor Sanjay, choice is whether to allow him to continue in the school at Berhampur where it is said that he is doing fairly well or to send him to a Boarding School at Kodaikanal The importance of proper education for the future of the boy cannot be over emphasised It is really unfortunate that his parents are not able to set up a matrimonial home where Sanjay can live in peace and can get their love and affection. This unfortunate development is bound to prove a strain on the boy as he grows up. The effect of a broken home is likely to affect his health and growth of his personality. As already noticed, the boy lives with the ladies i.e. his mother and the grandmother, who are uneducated and have no idea about his progress in the school. As he grows up and goes to higher classes, it would be necessary that there should be somebody to give him proper guidance regarding his studies. This cannot be achieved satisfactorily merely by engaging private tutors. Keeping these considerations in view the Court below has decided that it would be in the best interest of the minor to send him to a Boarding School where he can live happily far away from the traumatic experience and the strain of a broken home.
No doubt initially it may be difficult for Sanjay to adjust himself to his new environment since he is leaving home and the company of his mother for the first time, but by passing of time he may be able to develop a life in new surroundings and in the midst of his new friends in the school In my view, the decision of the Court below in this regard is also proper and justified in the facts and circumstances of the case. The court hopes that Sanjay will be able to adjust himself to the new surroundings and would come to live the life at the Boarding School. The school authorities shall send this Court a report about how Sanjay feels at School and his progress in the class at the end of two months. The respondent is directed to make the necessary arrangements with the authorities in this regard
The learned counsel for the respondent has pointed out some difficulties in working out the directions given by the trial court. His submission is that since the mother and grandmother with whom the child is living are not educated and they do not know how to read and write English, they would not be in a position to understand the correspondence of the School authorities and the interest of the minor would suffer if appropriate steps as desired by the authorities are not taken in time. This difficulty can be overcome by issuing a direction to the School authorities that a copy of every letter addressed to the mother as the guardian of Sanjay should be sent to the father so that the latter can take necessary steps in proper time and the interest of minor does hot suffer due to failure to take prompt action on the part of the mother.
Another difficulty pointed out by Mr. Mohanty is in respect of the direction given by the Court below that when the boy is taken to the school at Kodaikanal the mother should also accompany him. Mr. Mohanty submits that if the appellant chooses to be non-cooperative then the entire order can be frustrated I would reiterate here that it is expected that the mother would think and act in the interest and for the welfare of her son and would do nothing which may work otherwise. However, this difficulty can also be solved by giving a direction that the respondent would give notice to the appellant at least one week before the proposed date of departure for Kodaikanal and the latter shall send her reply within two days from the receipt of such intimation. In case she does not choose to reply within that time, it is open to the respondent to make arrangements for taking the boy to the school at Kodaikanal.
10. Some arguments were advanced from both the sides regarding power and jurisdiction of the Court to pass orders regarding education and spending holidays etc. by the minor while deciding an application under Section 25 of the Guardians and Wards Act Whatever doubt on these questions might have been there previously the same has been set at rest by the Supreme Court, in the case of Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka AIR 1982 SC 1276 wherein it has been held that while considering an application under Section 25 of the Act it is open to the Court to make any arrangement relating to the minor which he considers to be in the best interest of minor and in such a case it is the welfare of the minor which alone is the foremost consideration and not the rights of the parents. Neither the father nor the mother has an indefeasible right to have custody of the minor or to decide his future as he or she likes. The Court's duty in this regard is onerous and the Court is required to discharge the same to the best of its ability in the interest of minor.
11. At the request of the learned counsel for both the parties. I interviewed the minor, Sanjay in my chamber on 13-7-1984 for my own satisfaction about his physical and mental condition and his preference in the matter of custody as well as on the question of joining a Boarding School at Kodaikanal. He gave me the impression of being a bright and intelligent boy. Though he is not very healthy he is quite agile. He seemed to understand the questions perfectly and gave intelligent answers though some of the replies appeared to be stock ones and probably outcome of tutoring. He stated that he has no complaint about life both at home and at the school. To my question, whether he would like to join a Boarding School at Kodaikanal he simply stated that he does not want to go. When I asked him if this reply is because he would miss the company of his mother he simply repeated that he does not want to go. His answer on this question gave me an impression of being the outcome of tutoring. I also talked to the respondent at the request of his counsel He categorically expressed that he is prepared to do anything possible and to meet any expense to take the boy to the Boarding School so that the stress and strain of a broken home may not affect him when he grows up. He was equally categorical that it is not possible for him to live with the appellant under the same root
12. Before concluding I may point out that any order relating to custody of the minor or arrangement regarding his education etc. is in the very nature of it, temporary one, depending on the facts and circumstances prevalent at the time of making the order. It is open to any of the parties to approach the Court in the event of any change in circumstances of fresh development of facts and the court may pass appropriate orders on consideration of the same keeping welfare of the minor as the foremost consideration.
13. In the result, subject to the modifications indicated, the appeal and the cross objection are dismissed. Both the parties are to bear their own costs of the said appeal.