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High Court Of Orissa
D. P. MOHAPATRA
MEERA DEVI - Appellant
Versus
SHYAM SUNDAR - Respondent
Misc. Appeal 168 Of 1984
Decided On : 07/23/1984
GUARDIANSHIP AND WARDS ACT - CUSTODY AND EDUCATION OF MINOR - WELFARE OF MINOR - JURISDICTION OF COURT - POWER TO PASS ORDERS REGARDING EDUCATION AND SPENDING HOLIDAYS - MODIFICATION OF TRIAL COURT ORDER.
Fact of the Case:
The appellant (mother) and respondent (father) were married in 1971 and had a son, Sanjay, in 1974. The couple separated in 1982, and the respondent filed an application under Sections 7, 8, 9, 10, and 12 of the Guardians and Wards Act, 1890, seeking custody of Sanjay and permission to send him to a boarding school at Kodaikanal. The appellant opposed the application, arguing that it was not in the best interest of the child to be separated from his mother.
Finding of the Court:
The trial court held that it was in the best interest of the minor to leave his custody and guardianship with the mother but permitted the father to take him to a boarding school at Kodaikanal, subject to certain conditions. Both parties appealed the decision.
Issues: 1. Whether the trial court had jurisdiction to pass orders regarding the education and spending holidays of the minor while deciding an application under Section 25 of the Guardians and Wards Act. 2. Whether the trial court's decision to leave custody and guardianship of the minor with the mother was in the best interest of the child. 3. Whether the trial court's decision to permit the father to take the minor to a boarding school at Kodaikanal was in the best interest of the child.
Ratio Decidendi: 1. The court held that the trial court had jurisdiction to pass orders regarding the education and spending holidays of the minor while deciding an application under Section 25 of the Guardians and Wards Act. The court relied on the Supreme Court decision in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, which held that the welfare of the minor is the foremost consideration in such cases and that the court can make any arrangement it considers to be in the best interest of the minor. 2. The court held that the trial court's decision to leave custody and guardianship of the minor with the mother was in the best interest of the child. The court noted that the mother had been the primary caregiver for the child since the separation and that she had limited financial resources. The court also noted that the father had to travel frequently for business and would not be able to provide the child with the same level of care and attention as the mother. 3. The court held that the trial court's decision to permit the father to take the minor to a boarding school at Kodaikanal was in the best interest of the child. The court noted that the child was at a tender age and needed the constant company, love, and affection of both parents or at least one of them. The court also noted that the father had adequate financial resources to provide for the child's education and that the boarding school would provide the child with a better opportunity to develop his personality and shape himself properly.
Final Decision: The court dismissed both the appeal and the cross-objection, subject to certain modifications. The court directed the school authorities to send a report about the child's progress to the court after two months. The court also directed the father to give the mother one week's notice before taking the child to the boarding school.
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 Ss. 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 S. 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 school. 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 offspring, 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
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