Delhi District Court
Manish Sinha vs . Smt. Suruchi on 7 May, 2011
: 1 :
MANISH SINHA VS. SMT. SURUCHI
IN THE COURT SHRI SIRANDIP SINGH PANAG : ADDITIONAL
DISTRICT JUDGE04 : SOUTH DISTRICT : SAKET COURT
COMPLEX : NEW DELHI
Suit No112/11
In the matter of :
Manish Sinha .........Plaintiff
versus
Smt. Suruchi ........Defendant
O R D E R :
This order of mine shall dispose off the application under Order 39 Rule 1 & 2 CPC moved by the plaintiff and the application under Order 39 Rule 4 CPC filed by the defendant.
Briefly stated the facts of the case are that the plaintiff is the husband and the defendant is the wife and their marriage was solemnized on 05/04/2002 at Dhanbad, Jharkhand which is a native place of both the parties and a son namely Mitr Sinha was born from the wedlock on 13/08/2004. Earlier, the relations between the plaintiff and the defendant were cordial and after due deliberations and doing extensive home work, the parents got admitted the child in Blue Bells School International, East of Kailash, New Delhi in April, 2008 which is a school of great repute. Thereafter, the plaintiff's office was shifted from Contd.....P...1...of....9 : 2 : MANISH SINHA VS. SMT. SURUCHI Delhi to Gurgaon and the defendant's office was also shifted from Delhi to Gurgoan and both the parties had taken the conscious decision of not shifting to Gurgaon in the interest of the child so that his studies are not effected. The plaintiff used to drop his son to Blue Bells School International. Thereafter, the marital disputes arose between the parties, the details of which are not relevant for the decision of the case and the plaintiff has filed a divorce petition against the defendant. After the service of the divorce petition, the defendant shifted to the house of her cousin and she has also taken along with their son Mitr Sinha to the house of his cousin. Thereafter, she started making the preparations for admitting the child in a new school which is situated at Greater Noida namely Genesis Global school. It is the case of the plaintiff that after the defendant started making the preparations for shifting their son to the new school at Noida, the plaintiff has written a letter to the Principal of the school stating that he is the natural guardian of his son and it is in the best interest of the child if the child studies at Bluebells School International. On the objections made by the plaintiff, the Bluebells School International refused to issue the transfer certificate of the child. Thereafter, the plaintiff has filed the present suit claiming that new Genesis Global School at Noida is at a distance of 15 Km from the house where the defendant is presently residing and the child has to go by bus and it causes great inconvenience to the child. It is further claimed by the plaintiff that the Bluebells School International is a well established school and and as per the Contd.....P...2...of....9 : 3 : MANISH SINHA VS. SMT. SURUCHI survey published in Hindustran Times, it falls at number 2 in all the schools situated in South Delhi. On the other hand, the plaintiff has also relied on the survey carried out by Hindustran Times of the Noida schools and it is claimed by the plaintiff that the Genesis Global school does not even fall in the category of first ten schools situated at Noida. It is further claimed by the plaintiff that since the child is studying in Bluebells School International school and he is well established there and at this stage, the changing of the schooln is not in the interest of the child. Hence, the plaintiff has filed the present suit for the injunction praying that the defendant be restrained from shifting the child from the Bluebells School International school to Genesis Global school.
At the time of issuance of the notice, in view of the averments made in the plaint, the interim prayer of the plaintiff was allowed and the defendant was restrained from shifting the child from his present school.
Notice of the suit was issued to the defendant who has filed and WS and reply to the application under Order 39 Rule 1 & 2 and also filed an application under Order 39 Rule 4 CPC for vacation of the order dated 15/04/2011 passed by this court. In her WS, the defendant took the preliminary objection that the plaint is liable to be rejected under Order 7 Rule 11 CPC. It is claimed that the dispute interse between the parties to a matrimonial relationship and in respect of their minor child is governed by Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, the special courts have been Contd.....P...3...of....9 : 4 : MANISH SINHA VS. SMT. SURUCHI constituted under the said statute in order to deal with the said disputes as the basis of the said statute is the welfare of the child. It is further claimed that the plaintiff has not approached this court with clean hands and rather has suppressed material facts from this court. It is further stated that the defendant has filed a complaint under the Protection of Women from Domestic Violence Act, 2005 wherein the defendant / wife has sought interalia relief for restraining the plaintiff from committing any of domestic violence against the wife / defendant and the minor child. Ld. Metropolitan Magistrate vide its order dated 05/04/2011 was pleased to grant interim custody of the minor child to the defendant and the said fact was intimated to the plaintiff on 03/04/2011. Despite the said knowledge, the plaintiff suppressed the said material fact as well as the judicial order from this court and mislead the court thereby obtaining exparte injunction order dated 15/04/2011. It is further claimed in the WS that the conduct of the plaintiff amply reveals that the plaintiff wishes to use the child as a pawn in the litigation and force the defendant to give divorce to him on his terms and conditions and the present suit is an abuse of the process of law. It is further claimed by the defendant that when the interim order dated 15/04/2011 was passed exparte, the minor child Mitr Sinha had already started going to his new school and his admission from Bluebells School International stood withdrawn. It is further claimed that the issuance or nonissuance of the transfer certificate has no material bearing on the right of the other party to get the child admitted in Contd.....P...4...of....9 : 5 : MANISH SINHA VS. SMT. SURUCHI a new school since the submission of transfer certificate from the previous school is not a mandatory requirement and it is only directory as it is a proof of the fact that the child in his former school has passed the previous class. It was further claimed that the interim order dated 15/04/2011 is infact of no consequence and stands redundant and the suit is rendered infructuous since on the last date when it was passed the minor child Mitr Sinha already stood admitted in a new school and also started attending the classes since 30/03/2011 and there is no cause of action to institute the present suit. On the merits, it is claimed by the defendant that she and the minor child have always been treated with cruelty by the plaintiff and the defendant to protect her life and limb as well as that of child on 19/03/2011 took refuge at her cousin's residence where she is presently residing. It is further mentioned by the defendant that on 03/04/2011, the plaintiff had come to meet the minor child and met the defendant also and during the course of conversation, the defendant informed the plaintiff that she had got admitted the minor child in Genesis Global school and the child had started attending the classes and the child was so excited about his new school and he started narrating about his new school to his father who was least interested and was more keen to confront the with the fact that how she ha dared to get the child admitted in another school without his permission and without bringing this fact to his knowledge. There are some other unnecessary details mentioned with regard to the relationship of the plaintiff and the defendant which are not relevant Contd.....P...5...of....9 : 6 : MANISH SINHA VS. SMT. SURUCHI for the decision of these applications. These details are the subject matter of the divorce petition which is already pending between the parties.
Before proceeding further, the first question which has to be decided by this court is whether this court has jurisdiction to try the present suit. In this regard, I have to refer to the judgment of Hon'ble High Court of Delhi in Sanjiv Sangwan Vs. Sangita Sangwan; 2003(105) DLT 380; wherein it has been held as under :
"The present suit for injunction does not fall within the ambit circumscribed by the Section 38 of the Specific Relief Act. It is the bounden duty of every parent, and also of the court, that when disputes pertaining to children is brought before it, it must ensure that the welfare of the children and its predominant concern is adequately safeguarded. The custody of the minors is not a proprietory rights of the parents but is instead a discharge of their pious obligation to ensure the best for their progeny. The court, therefore, should not needlessly find a source for its jurisdiction in statutes. There is no enactment which bars the exercise of powers in disputes concerning the custody and welfare of the children. The Court should unhesitatingly pass orders that would ensure the welfare of the minors."
It was further observed in the judgment :
"In these circumstances, the defendant is hereby restrained from removing the minors, namely, Uday Sangwan and Surya Sangwan from the Kodaikanal International School without the consent of the plaintiff. Since the children are not Contd.....P...6...of....9 : 7 : MANISH SINHA VS. SMT. SURUCHI chattels and the Court continues to be concerned in their welfare, these orders shall be amenable to any modification that may be passed in the future by th Guardian Judge if there is a change of circumstances necessitating the modification in the interests of the children. The suit is decreed in the above terms. Parties to bear their respective costs."
In view of the above observation made by the Hon'ble High of Delhi, this court has the jurisdiction to try the present suit.
Although, there is an interim order passed by Ld. MM while dealing with the application filed by the defendant for the interim custody of the child. But there is no denial of the fact that the custody of the child is with the defendant. The plaintiff is seeking relief only with regard to the admission of the child in the old school. When it was pointed out to the plaintiff that since the child is admitted to the new school, whether the old school i.e. Bluebells School International will be willing to again accept the child as a student of ClassII. To this, it is submitted by the plaintiff that he has already paid the fees to the Bluebells School International and he is in contact with the school authorities who have assured him that the child will be allowed to attend the school. Now at this stage, the first question which has to be decided by the court is the welfare of the child. There is no denial of the fact that the child has been admitted in the Bluebells School International after the Play school and he has passed ClassI exams this year Contd.....P...7...of....9 : 8 : MANISH SINHA VS. SMT. SURUCHI and the child is well established in his old school and it will take time for getting himself acquainted with the environment at the new school. Moreover, it is admitted by the defendant that she is staying in Delhi with her cousin and the new school of the child is at Greater Noida which is at a distance of 15 Km from the house of the cousin of the defendant. On the other hand, the plaintiff has stated that now the child is forced to go by bus if the child is allowed to be admitted in Bluebells School International, then he will make arrangement for the transportation of the child from mother's house by car. The plaintiff, at this stage, is not seeking the custody of the child which is not within the jurisdiction of this court to grant. Although there are matrimonial differences between the plaintiff and the defendant but these should not come in the way of the proper grooming of the child. The parents are not supposed to use the child as a pawn to settle their mutual disputes. In my opinion, it shall in the best interest of the child if he studies in his old school and he has to travel a lesser distance for going to school. Moreover, the plaintiff has assured that he will arrange transport by car for the child from the residence of his mother to the school. The other fact which was urged before me by the counsel for the defendant is that since the child has already got admission in Genesis Global School at Noida, therefore, this plaint has become infructuous as no mandatory injunction is sought by the plaintiff for getting the child readmitted in his old school. I have considered this contention of the defendant but there is no denial of the fact that the transfer Contd.....P...8...of....9 : 9 : MANISH SINHA VS. SMT. SURUCHI certificate is not issued by the hold school and it is brought to my notice by the plaintiff that as per regulation framed by CBSE if the child seeks admission in a new school from an old school, then there was requirement to submit the transfer certificate from the old school to the new school and unless that transfer certificate is given and submitted to the new school, the admission of the child cannot be deemed to be completed.
As per the judgment of Hon'ble High Court titled Sanjiv Sangwan Vs. Sangita Sangwan and in view of my aforesaid discussion, I am of the considered opinion that it shall be in the welfare of the child, if he is allowed to remain in his old school i.e. Bluebells School International. The defendant is directed to permit the child to attend his old school and is further restrained from disturbing his studies in Bluebells School International. Accordingly, the application moved by the plaintiff under Order 39 Rule 1 & 2 CPC is allowed and the application moved by the defendant under Order 39 Rule 4 is dismissed. However, this order shall be amenable to any modification that may be passed in future by Guardian Judge if there is change of circumstances necessitating the modification in the interest of child.
A copy of the order be given dasti.
(SIRANDIP SINGH PANAG) ADJ04 : SOUTH DISTRICT NEW DELHI : 07/05/2011 Contd.....P...9...of....9