Delhi High Court
Mr. Perry Kansagra vs Mrs. Smriti Madan Kansagra on 26 May, 2014
* 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.
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.
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
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
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
