JUDGMENT
Manmohan Sarin, J.
(1) The applicant/husband is aggrieved by the order of this Court dated 30.10.1995, whereby Civil Revision No. 677/95 was allowed and the impugned order dated 14.8.1995 of the Additional District Judge, directing readmission of the minor son to the American Embassy School (for short ‘AES’) was set aside and the child was permitted to continue in the Vasant Valley School, to which he had been shifted by the mother/non-applicant.
(2) The applicant has sought review of the order dated 30.10.1995, inter alia on the ground that this Court failed to hold an enquiry to satisfy itself as to the welfare of the minor and relied merely on the submissions made by the non-applicant. Further the Court erred in not considering that the applicant as father of the minor, being the legal guardian had a legal right to ensure that his son received education in the School to which he was originally admitted with the consent of the parents. It is urged that the order suffers from legal infirmity in so far as it proceeded on the footing that the father had for the time being ceased to be legal guardian, while the child was in mother’s interim custody. The applicant could not be denied his legal right as guardian. It is argued that it is not merely the welfare of the minor, but it is both care and welfare of the minor and the estranged wife could not have an absolute or final say and the Court proceeded on the erroneous footing that the mother was the sole repository of that right.
(3) Learned Counsel for the applicant argued that without there being any foundation, the Court had concluded that the education in the Aes hampered the welfare of the child and thereby fell into legal error. The observations in the order dated 30.10.1995 with regard to the petitioner/non-applicant having been left in a state of uncertainty regarding the payment of the School fee was also assailed as erroneous. It was urged that the observation that the creation of the trust by the applicant’s father to provide for minor’s education was a belated one and an afterthought, was erroneous. Mr. Lekhi urged that the Court had erred in accepting the ipsi dixite of the mother and the submissions made, without there being any evidence for the same. He submitted that judgment had to be based on facts, relevant and duly proved and not on assumed facts and submissions made. He submitted that the Court erred in ignoring that the child was an American citizen and should continue to receive education in the Aes, which was the school selected by both the parents and was conducive to the welfare of the minor and has recognition in the country of which he is the citizen.
(4) Both the parties have filed written submissions as well as list of authorities relied on. I have also heard Mr. Y.P. Narula, Counsel for the respondent, who has submitted that no ground whatsoever is made out for review as the applicant has failed to’ disclose any error apparent on the face of the record. In response to the applicant’s submission that there was no evidence on record, to justify inferences drawn in the judgment, Mr. Narula in the written submission filed, has given the particulars and references with regard to the existence of such material on record, either based on pleadings or documents. Reliance has also rightly been placed on Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhury . The Apex Court while-affirming the limits on the jurisdiction in review,observed that erroneous findings could be a case for appeal but not for review. Further with regard to what would be an error apparent on the face of the record, the Court observed that it must be such an error that strikes one on mere looking at the record and woul d not require any long drawn process of reasoning of points where they may conceivably be two opinions.
(5) It is not necessary for me, while disposing of the review application, to deal with each of these points. I find on a consideration of the entire matter that the grounds taken in the review petition, do not either disclose any apparent error on the face of the record or are such as would require re-appraisal of evidence, which is beyond the scope of review. The errors which are sought to be pointed out can if at all be the grounds in appeal, but not for review. In this connection, it may be noticed that the submission of the applicant that the Court should have conducted an enquiry prior to reaching any conclusion with regard to the decision regarding change of school, I am of the view that no formal inquiry was necessary. In the very nature of things, an enquiry is implicit and inherent in the decision making process, while passing the order on such interlocutory application. Matters relating to education of minor are of an urgent nature where directions are required and cannot await or brook the delay of a detailed formal enquiry, with evidence of witnesses being recorded and opportunity for cross-examination being afforded. The Guardian Judge or the Court would be fully entitled to base its decision on consideration of pleadings, documents and other evidence and material, which is brought forward by the parties on record, for the purpose of decision on education of the child, where the paramount consideration is the welfare of the minor.
(6) It may be noticed that in the instant case both the parties had placed before the Court the respective syllabi of the Aes as well as Vasant Valley School, the school reports of the child in the two schools were also produced. The pleadings in respect of the Court proceedings between the parties including those pertaining to the custody of the minor and the applications for interim custody were also filed. The parties were given full opportunity to address the Court on all aspects having a bearing on minor’s education and, in fact, had so addressed during the hearing of the revision petition and relied on all the material on record. It is also significant that the applicant does not question or assail the criteria and the approach to be followed in such matters, as set out in the order under review, in paragraph
10.It would be worthwhile to reproduce the same : Having heard the learned Counsel at length and gone over the material on record, I find that the present case is an off shoot of marital discord and acrimony, which finds it victims in the children. In the case of inflated egos, personal prejudices and dissensions, the considerations of well being of the minor recede into background. This happens while both the parties adopt righteous postures of being solely guided by consideration of welfare of the child. 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 cusody,ordinarily should not interfere with it unless the decision taken is against the interest of the minor, and is taken main fide or based on extraneous considerations. 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.
As stated in matters of custody, health and education, the paramount consideration has to be the welfare of the minor. The rights of the parties are subservient to it. Procedural legal objections and technicalities, should not come in the way of doing substantial justice in ensuring welfare of the minor, who is the victim of the marital discord and acrimony of the parents.
(7) The submission of the applicant that this Court had proceeded on the footing, that the applicant father had ceased to be the legal guardian, while the child was inmother’s interim custody and the mother alone was the sole repository and had the final say in the decision regarding child’s education, is not correct and devoid of merit. The Court only noticed that the non-applicant mother was looking after and having complete care of the child and monitoring the studies at the school. It is in this context that it was observed that “it is only the mother who can perceive and ascertain the child’s discomfiture. The child may not even reveal or communicate his apprehensions and concerns to outsiders or his teachers. It is only the non- applicant/mother with whom the child was inconstant touch and communication, the channels of communication having been disrupted with the father as a result of the separation, the contact with the respondent/applicant being confined to two meetings of a total duration of four hours in a month.”
(8) Besides, in the order under review, paragraphs 10 and Ii set out the reasons for the non-applicant/mother having been left in a state of uncertainty regarding payment of school fee in the AES. The application in the reply filed to the application for maintenance, averred that his net take home salary was only Rs. 14,585.00. He failed to show either his or his father’s willingness to pay the fee to the Aes, which was in the range of Rs. 27,000.00 p.m. This coupled with the discomfiture and alienation felt by the child in the Aes, the non-applicant/mother opted for change in school, which decision could not be faulted with. The order under review also sets out in detail in Paragraphs 10 to 12, which are not being set out here to avoid repetition, the alienation and discomfiture of the minor child in the Aes and the pleadings in this regard before the Trial Judge. It also sets out the reasons and the material irregularity which warranted interference in revision. In the impugned order under review, the Court reached the conclusion that the decision for change in school taken by mother/non-applicant was a bonafide one and conducive to the welfare of the minor and could not be faulted with.
(9) It may also be noticed that no case has been made out or pleaded with regard to any change of circumstances which would entitle the applicant to seek change in schooling of the minor, as permitted under the Older under review. It is not, necessary to deal with the authorities cited by the applicant as the same do not advance the case of the applicant in the present facts and circumstances.
(10) In view of the foregoing discussion, I am of the view that the applicant has failed to make out any ground for review of the order dated 30.10.1995. As a result,the review application is dismissed.