Soma Deyati vs Mrinal Deyati
2022 Latest Caselaw 6290 Cal

Form No. J (1)

                 IN THE HIGH COURT AT CALCUTTA

                 CIVIL REVISIONAL JURISDICTION


Present:

The Hon'ble Justice Biswajit Basu.
                               C.O. 1743 of 2022
                                 SOMA DEYATI
                                     VS.
                                MRINAL DEYATI


For the petitioner:                          Mrs. Indranath Mukherjee,
                                             Md. Manuwar Ali.


For the respondent:                          Mr. Probal Mukherjee, Sr. Adv.,

Mr. Supriyo Das, Mr. Siddhartha Paul.

For Dr. Indrani Dutta                        Mr. Partha Pratim Roy,
                                             Mr. Dyutiman Banerjee.

Heard on              : 03.08.2022, 16.08.2022, 30.08.2022

Judgment on           : 06.09.2022



Biswajit Basu, J.:

1. An affidavit filed on behalf of the opposite party and reply

thereto filed by the petitioner be kept with the record. The parties are

husband and wife, due to matrimonial discord, they are at present, living

separately. They have a son in their wedlock who is in the custody of the

mother, the petitioner herein. The said son of the parties was a student of

the Asian International School, Howrah (AIS in short).

2. The father, the opposite party herein, has initiated a proceeding under

the Guardians and Wards Act, 1890 for the custody of his said minor son

which is pending before the Court of Additional District Judge, Fast Track-I,

District- Howrah being Misc. Case No. 142 of 2021. The Order no.11 dated

May 11, 2022 passed in the said Misc. case is under challenge in the

present application under Article 227 of the Constitution of India.

3. In the said Misc. Case, the father, on April 26, 2022 filed an

application alleging that offline class of the child had commenced on and

from April 07, 2022 but the mother is not sending the child to the school

without any valid reason and prayed immediate action so that the son is not

deprived of his right to education. The mother, on the said date prayed for

adjournment of hearing of the said application, the learned Trial Judge

although deferred the hearing of the said application to May 21, 2022 but

considering the urgency of the matter, passed the following interim order on

the said application:

"However, since school attendance and attendance in extra-curricular activity classes are vital aspects for the overall development of the child and intricately connected with the annual performance of the child, I deem it necessary to issue certain interim directions. Accordingly, the O.P. Soma Deyati is directed to ensure regular attendance of the minor in his academic classes at school, as well as in his extra-curricular classes such as painting classes, Guitar classes, football and cricket classes, unless prevented by any sickness of the child."

4. The father, on May 06, 2022 filed an application complaining that the

mother, in violation of the aforesaid order, is not sending the child to the

school. The mother filed written objection to the said application wherein

she alleged that the father, on March 26, 2022 was present in the parent-

teacher meeting at AIS and used foul languages against her in front of other

students and their guardians. The son became terribly shocked and

embarrassed when the said incident was conveyed to him by his friends and

refused to attend AIS anymore. In the said written objection, the mother,

however, disclosed that she has admitted the child to a new school.

5. The learned Trial Judge by the order impugned has disposed of the

said application of the father dated May 06, 2022 with the following

directions:

"(1) The OP shall get the minor Ayush Deyati re-admitted/continued in the same school, i.e. Asian International School Howrah, ensuring that no loss of academic year is caused to him. The petitioner will ensure that all procedural formalities for such re-admission/continuation, including payment of fees for the said purpose, are done at his end. The school authorities of Asian International School Howrah are requested to accommodate both the petitioner Mrinal Deyati and OP Soma Deyati in connection with the procedural formalities for such re- admission/continuation, including filing up of forms, etc. (2) The petitioner shall have the right to know the academic developments and problems of the child in respect of his day-to-day schooling from the authorities of Asian International School, Howrah, but shall not, without the leave of the Court, issue any directions in respect of the child, to the school authorities.

(3) Every consultation with a child psychologist, in respect of the minor henceforth, shall be done with the participation of the petitioner upon due prior intimation so as to enable him to attend the same. (4) As it appears that the minor at present, is under a considerable degree of reluctance to communicate with the petitioner, the petitioner is directed not to show any aggressive behaviour or insistence to communicate with the child against his wishes, on any occasion when he may come across the child in course of implementation of the above order.

(5) Subject to the willingness and preference of the child, and subject to availability of time, the OP shall make all endeavour to resume to resume the extra-curricular activities of the child such as his music and sports classes."

6. The learned advocate for the petitioner submits that the father caused

embarrassment to the son by using abusive languages against the mother

on the date of parent-teacher meeting in the said school in front of the

friends of his son and their guardians, resulting in son's reluctance to

attend AIS anymore. He further submits that the child had reported to the

mother that he is unable to cope with the standard and pressure of the

curricula at AIS and it is very stressful for the child to continue with his

extra-curricular activities at places far away from home, the mother under

such circumstances, had no other alternative but to remove her son from

AIS and admit him again in Class VI at St. Xavier's Public School, a reputed

English Medium school at Howrah, near to the place of residence of the

minor and to discontinue with the extra-curricular activities of the child.

7. The learned advocate for the petitioner next contends that the child

has expressed his discomfort in meeting the father which the learned Trial

Judge has recorded in the order dated February 07, 2022. He also refers to

the photocopy of the alleged history of neurological treatment of the father to

contend that the father has extra-marital relationship, therefore, according

to him, the mother is in a better position than the father to address the

issues concerning the welfare and well-being of the child.

8. The learned senior counsel for the father on the other hand, submits

that when the child in his previous school did well and was successfully

promoted to Class VII, there is no earthly reason to admit the child in Class

VI again in a new school. He refers to the mark-sheet of the child for the

academic session 2021-2022 and submits that his result in all subjects

improved from Term I to Term II, his attendance in AIS for the said academic

session was 98.4%, therefore, according to him the allegation of the mother

that the child is not capable to cope with the standard and pressure of the

curricula at AIS is absolutely a cock and bull story, woven to fulfil the evil

design to erase the presence of the father from the mind of the child. He

emphatically denies that his client ever used any offensive language against

the mother on the parent teacher meeting on March 26, 2022 as alleged. In

conclusion, he submits that the mother's action to remove the child from

AIS where he read since childhood and to admit him in a new school, that

too in the same class from which he has been already passed out, is highly

detrimental to the welfare and wellbeing of the child.

Heard learned advocate for the parties, perused the materials on

record.

9. The child was a student in AIS since LKG. On scrutiny of his mark-

sheet of term-end examination of 2021-2022, it appears that he was

successfully promoted to Class VII, obtaining Grade B1 (80%) in most of the

subjects and Grade A2 (90%) in some subjects, in fact his result in Term II

is better than Term I, his attendance in the last academic session was

98.4%, such result of the child, on the face of it, falsifies the claim of the

mother that the child is not capable to cope with the standard and pressure

of the curricula at AIS, the learned Trial Judge, therefore has rightly

disbelieved the mother's said explanation for removing the child from AIS

and to admit him in a new school in Class VI again.

10. The mother and the child were admittedly absent on the date of

parent teacher meeting scheduled on March 26, 2022, the allegation that

the father used foul languages against the mother in front of other students

and their guardians, which were subsequently conveyed to the child causing

him embarrassment and trauma for which the child did not want to face his

friends at AIS anymore and that the mother had to remove the child from

the said school, is completely unbelievable as the learned Trial Judge after

interacting with the child, found that his friends of AIS are still maintaining

contact with him, besides, those allegations being hearsay, there is hardly

any scope to consider the same.

11. The record further reveals that the child was admitted in the new

school, St. Xavier's Public School, Howrah on April 07, 2022 but the mother

applied to AIS for transfer certificate of the child only on April 21, 2022,

therefore, the child was admitted in his present school without any transfer

certificate from his previous school. The mother is claiming that St. Xavier's

Public School is a good, reputed school of the District Howrah but the

standard of the said school comes under doubt when it allows admission of

a student without transfer certificate being obtained from the previous

school.

12. A document, allegedly the history of the neurological treatment of the

father has been annexed with the revisional application to substantiate the

allegation that the father has extra-marital affair, the said allegation has no

relevance for a decision on the issue involved in the present revisional

application, more so, the name of the mother has been recorded in the said

document as informant. The discomfort once expressed by the child before

the learned Trial Judge in meeting his father during the course of another

stage of the proceeding is also a completely irrelevant consideration in the

present matter. The attempt of the mother to raise such issues here, on the

face of it, is not bona fide. It is very unfortunate that the mother, by her

actions, has stirred up an extremely complex situation in the track of her

child's education, the parents must remember that the children are not mere

chattels: nor are they mere play-things for their parents (See ROSY JACOB

vs. JACOB A. CHAKRAMAKKAL reported in AIR 1973 SC 2090 at

paragraph 14).

13. A certificate of one consultant clinical psychologist namely Dr. Indrani

Dutta attached with NH Narayana Superspeciality Hospital, Howrah has

been annexed with the revisional application to impress upon this Court

that the child is not fit to study in Class VII in his earlier school and he

should be allowed to continue in his present school in Class VI. This Court

doubted, whether a child psychologist is competent to give such opinion, as

such, the said child psychologist was directed to be personally present

before this Court, in pursuance whereof she appeared before this Court

personally on July 11, 2022 when she was directed to file an affidavit to

justify her said advice. However, on July 20, 2022 Mr. Partha Pratim Roy,

learned advocate appeared on behalf of the said child psychologist and

submitted that his client never intended to opine that the child should be

put in Class-VI again, she issued that certificate after interviewing the child

and on the basis of the inormation received from the mother. This Court

reposed confidence on Mr. Roy to talk to the parties to resolve the issues

amicably so that the child could be put into his right track of education, but

all efforts of Mr. Roy failed, he however, submits today that his client will be

more cautious in issuing such kind of certificates in future.

14. In view of such submission of Mr. Roy and to avoid birth of a new zone

of dispute between the parties, this Court did not insist upon filing of the

affidavit by Dr. Dutta, as directed earlier. The learned Trial Judge, in the

order impugned, has recorded that on interaction, the child was found to be

echoing allegation of the mother which prima facie, is an indication that the

child has been tutored, the mother should realise that for the balanced

upbringing of the child, the participation of the father is as much required

as the mother, however, if good sense does not prevail upon the parties, the

Court cannot be a mere fence-sitter to watch and allow one party having

advantage of the custody, to use the minor as pawn in the nasty

matrimonial war with the other party.

The order impugned is well thought out and well reasoned, this Court

does not find any reason to interfere with such order. The mother is directed

to comply with the directions of the order impugned so that child can

resume his education without any further waste of time.

C.O. 1743 of 2022 is dismissed. There shall however, be no order as to

costs.

Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(BISWAJIT BASU, J.)