* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT. APPEAL (FC) NO. 61/2014
MR. PERRY KANSAGRA ..... Appellant
Through: Mr.Sanjay Jain, Sr.Advocate
with Mr.Anupam Srivastava,
Mr.Tarun Bansal and Ms.Rajul
Jain, Advocates.
versus
MRS. SMRITI MADAN KANSAGRA ..... Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE V. KAMESWAR RAO
O R D E R (ORAL)
: REVA KHETRAPAL, J.
1. The aforesaid appeal is preferred by the appellant-husband against the order dated 17.10.2013 passed by the learned Family Court in Guardianship Petition No. 53/2012 whereby the application of the appellant-husband filed under Section 151 CPC dated 09.04.2013 seeking admission of the minor child of the parties in British School, New Delhi was rejected by the learned Family Court. MAT. APPEAL (EC) NO. 61/2014 Page 1 of 5
2. The facts relevant for the disposal of the present appeal are that the respondent-wife has the sole custody of the minor child of the parties by virtue of an order passed by this Court in CS(OS) No. 1604/2012.
3. The appellant-husband has filed a Guardianship Petition No. 53/2012, against the respondent, seeking the permanent custody of minor child as his legal guardian under Section 7 of the Guardianship and Wards Act, 1890, which is pending disposal.
4. The respondent got the minor child admitted in Delhi Public School, Mathura Road, New Delhi under intimation through an e-mail dated 28.03.2013 to the appellant, whereupon the appellant filed an application before the Family Court, Saket, New Delhi praying that the child be admitted by the respondent to the British School at New Delhi after removing the child from Delhi Public School, Mathura Road.
5. It may be noted at this juncture that the appellant-husband and his parents are citizens of Kenya and U.K., and therefore, it is asserted by him that the welfare of the child lies in the child receiving an international education in the British School, New Delhi. MAT. APPEAL (EC) NO. 61/2014 Page 2 of 5
6. The contention of the respondent-wife, on the other hand, is that it is the prerogative of the mother with whom the child is currently staying to choose the school of the child. Reliance is placed in this context upon the judgment of this court rendered in Radhika Vickram Tikkoo Vs. Vickram Tikkoo (1995) 60 DLT 666.
7. The learned Family Court after weighing the respective contentions of the parties rejected the application of the appellant as follows:-
"8. Before embarking upon the issue as to whether the child should be admitted in the British School or not, it would be appropriate to indicate that while discussing the need relating to custody, health, education of the minor child, the paramount consideration as to the welfare of the minor child plays a pivotal role. Since, the child is staying with the mother, it is for the mother to ascertain the circumstances which will weigh with the welfare and interest of the minor child. The child obviously has been admitted in the DPS School Mathura Road, which is stated to be one of the best school in the city. The session of the school has already gone ahead. It would not be appropriate at this stage to up route (sic.uproot) the child in the middle of educational session. The mother has submitted that she wanted to get the child admitted in the school where he learns Indian values so that he will remain attached to the family and also imbibe with social and religious values. A somewhat same situation arose in the case titled as Radhika Vickram Tikkoo (Supra) where the court has held "The duty i.e cast on the Court while considering matters relating to custody, health or education of MAT. APPEAL (EC) NO. 61/2014 Page 3 of 5 the minor children is to secure the paramount welfare of the minor. The Court while examining the decision taken by the parent charged with custody, ordinarily should not interfere with it unless the decision taken is against the interest of the minor, and is taken mala fide or based on extraneous consideration. This is because the parent charged with custody, must have discretion in such matters. The Court cannot be made the arbiter for the numerous issues that arise in day to day life of the child on which the parent charged with the custody has to decide".
8. We do not find any infirmity or perversity in the judgment of the learned family court. The custody of the child is presently vested in the mother of the child, who resides at New Delhi and it is well within her discretion to choose the school in which she desires to have the child educated. The school chosen by her is a well-known school and there is no reason for us to suppose that she has not considered the welfare of the child while having her child admitted in the said school. The legal position is well settled that the court while examining the decision taken by the parent vested with the interest of the child ordinarily should not interfere unless the decision taken is demonstrably against the interest of the minor or is taken mala fide or is shown to have been taken for extraneous considerations. It is not even the case of the appellant-husband that the decision taken by the MAT. APPEAL (EC) NO. 61/2014 Page 4 of 5 respondent-wife has been taken mala fide or based on extraneous considerations. All that has been urged before us on behalf of the appellant-husband is that the interest of the minor would be better served if the minor is educated in the British School rather than in the public school to which the mother has got the child admitted.
9. We do not see how the child will be benefited by his admission to the British School in preference to the Delhi Public School and in any event this is a subjective matter which is best left to the discretion of the party in whom the court has thought it fit to vest the custody of the minor. This is not a matter which calls for interference from the Court.
10. For the aforesaid reasons, we dismiss the present appeal as being devoid of merits.
REVA KHETRAPAL JUDGE V. KAMESWAR RAO JUDGE May 26, 2014 sk MAT. APPEAL (EC) NO. 61/2014 Page 5 of 5