THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE V. SURI APPA RAO F.C.A. No. 19 of 2010 and C.R.P. Nos. 2689 and 2690 of 2010 Common Judgment: (Per Sri. N.V. Ramana, J.) As the F.C.A. and C.R.Ps. are interconnected and arise out of the same F.C.O.P., they are heard together and are being disposed of by this common judgment. For the sake of convenience, the parties shall be referred to as arrayed in the F.C.A. The appellant, who is the father of the minor child Mr. Mohd. Ibrahim, filed this F.C.A. No. 19 of 2010, against the order dated 09.11.2009, passed by the Judge, Family Court, Hyderabad, dismissing F.C.O.P. No. 368 of 2007, filed by him praying the Family Court to grant him the custody of his minor child. The Family Court, while refusing to grant custody of the minor child to the appellant, granted him visitation rights with a direction to the respondent not to cause any obstruction to his visitation rights; ordered the passport of the child to be kept in the record, making it clear that it shall not be handed to the appellant or the respondent or anybody on their behalf, without specific order from the Court; and further directed the respondent not to move the child out of the country without permission of the Court. After disposal of the F.C.O.P. by the Family Court, and while the F.C.A. against the order passed in the F.C.O.P. is pending before this Court, the respondent, who is the mother of the minor child, filed two applications in I.A. Nos. 216 and 217 of 2010 in F.C.O.P. No. 368 of 2007 before the Family Court, praying to return the passport of the minor child to her and to grant permission to move the minor child out of the country for performing Ummrah at Saudi Arabia. The said applications, on contest by the appellant, were dismissed by the Family Court, by common order dated 28.04.2010, which are subject- matter of revision in C.R.P. Nos. 2689 and 2690 of 2010. The learned counsel for the appellant submitted that the respondent has taken Khula from the appellant. Before subsistence of the marriage between the appellant and the respondent, the minor child was born to them. The respondent after taking Khula from the appellant, re-married a Pakistani, who is now residing in United States of America. As per Muslim law, the custody of child can be given to the mother, if she re-marries a relative of her first husband, but not a stranger. Since the respondent re-married a Pakistani, who is not a relative of her first husband, she is not entitled to have the custody of the minor child, but the Family below without considering this aspect of the matter, committed a grave error in denying custody of the minor child and giving only visitation rights. He further submitted that illiteracy cannot be a ground to deny custody of the minor child to the father, particularly, when the appellant being the father and natural guardian of the child, is sending Rs.1,000/- every month for his welfare. He further submitted that since the father is the natural guardian and has the means to take care and welfare of the child, the Family Court, ought to have granted the custody of the minor child to the appellant, and instead of doing that, it committed an error in granting custody of the minor child to the respondent, based on the declaration given by the second husband of the respondent that he will take care and welfare of he child. Hence, he prayed that the order under appeal be set aside, and the custody of the minor child be granted to the appellant. He further submitted that merely because the Family Court has granted custody of the child to the respondent, it does not mean that she has got absolute and exclusive rights over the minor child, enabling her to move the child out of India and defeat the rights of the appellant to have visitation rights. As the minor child requires the love and affection of both the mother and the father, the Family Court considering the fact that the respondent has married a Pakistani, directed keeping of the passport of the minor child in the record, so that the respondent, to whom the custody of the child is granted, does not move him out of India, without the permission of the Court, and the respondent having not challenged this part of the order of the Family Court, by filing appeal, is not entitled to seek release of the passport of the child and permission to take the child to Saudi Arabia for performing Ummrah. He submitted that given the fact that the respondent has married a Pakistani, if passport of the minor child is released and the respondent is permitted to take the child to Saudi Arabia, for performing Ummrah, there is every possibility of the respondent not bringing the child back to India, and instead she may take him to Pakistan and land him in the hands of terrorists, and in which case, it will be impossible for the appellant to get him back to India, and even the Courts in India will be helpless in getting the back the child to India, because there is no machinery or law governing thereof. He further submitted that the respondent earlier filed applications in I.A. Nos. 25 and 26 of 2010 for the very same relief as prayed for by her in the present applications, but the same were returned as the respondent filed the same without serving notice on the appellant, and as such, the present applications, filed for the very same relief, are not maintainable. He further submitted that during the proceedings before the Family Court, the respondent refused to bring the child to Court to enable the appellant see him, and it is only at the instance of the Family Court, the respondent brought the child. This conduct of the respondent, clearly demonstrates that her intention is to deny the appellant his visitation rights and access to the child completely, which cannot be allowed, because under the Muslim law, the appellant has a right to seek custody of the child after the child attains the age of seven years, and if the respondent is allowed to take the child out of India, then the right of the appellant, to have custody of the child will be defeated forever. He further submitted that it is only the respondents who want to perform Ummrah and not the child, and at any rate, in the absence of the respondent not furnishing the details of the period of tour programme, such as the date on which they would be leaving India to Saudi Arabia for performing Ummrah, when Ummrah would be performed and when the child would brought back to India, the Family Court below has rightly dismissed the applications filed by the respondent for release of the passport of the child and grant of permission to take the child to Saudi Arabia for performing Ummrah, and no interference is called for therewith. Hence, he prayed that the C.R.Ps. be dismissed. On the other hand, the counsel for the respondent submitted that the respondent has no intention to take away the child out of India, if really the respondent had the intention to move the child out of India, so as to deny even the visitation rights, she would not have surrendered the passport of the child in he Court and instead would have taken the child out of India, even before the appellant filed the F.C.O.P. for custody of the child. He submitted that while granting custody of the minor children, the paramount consideration that has to weigh with the Court is welfare of the child, and the Family Court, considering the fact that the respondent is an educated land, while the appellant is an illiterate and unemployed, and considering his health problems, felt that the welfare of the child would well stand protected if the custody of the child is given to the respondent, and accordingly, granted her the custody of the minor child, and no interference is called for therewith in appeal. He submitted that even though the respondent has not filed any appeal questioning the order passed by the Family Court, directing keeping of the passport in the record, and not to release the same either in favour of the appellant or the respondent and prohibited the respondent from moving the child out of India without permission of the Court, but this Court, while exercising its appellate jurisdiction, can modify the Family Court, and therefore, non-filing of any appeal by the respondent, does not disentitle her to seek any interim relief. He further submitted that for the limited purpose of performing Ummrah, which has to be performed at Saudi Arabia, the respondent wants to move the child out of India, and once Ummrah is performed, the respondent will bring back the child to India and surrender the passport to the Court, and the respondent is ready and willing to give undertaking as required by the Court, for release of the passport and permission for moving the child out of the country. Hence, he submitted that the appeal be dismissed and the common order, which is subject matter of revisions, be set aside and the Family Court be directed to release the passport and permit the respondent to move the child out of the country, subject to the respondent furnishing undertaking as required by the Court. Heard the learned counsel for the appellant and the learned counsel for the respondent. The appellant and the respondent are husband and wife. They got married on 27.12.2001, and their marital relationship ended when the respondent took divorce from the appellant by taking khula on 11.09.2005. During the subsistence of their marriage, on 30.07.2004, they were blessed with a male child by name Mohd. Ibrahim. After divorce, both the appellant and the respondent re-married. While the matters stood thus, the appellant filed the present O.P. seeking custody of the minor child contending that the respondent married a Pakistani, who is now living in United States of America, and that respondent is planning to join her husband in America, leaving the child in India, and if the same happens, there would be none to take care of the child and he would be compelled to grow as an orphan, in which event, the future of the child would be stake. The respondent contested the O.P. stating that she married a Pakistani, who is living in United States of America that her second husband agreed to extend the love and affection to the child as his real father and would maintain and educate him. That she is an educated lady, that she is presently spending Rs.3,000/- per month towards the education of the child, that the appellant who is an illiterate, is not even paying the agreed maintenance of Rs.1,000/- to the child, that the child may not get the care of the mother from the second wife of the appellant, that the appellant is suffering from cancer, and he may not be in a position to take care of the welfare of the child properly, and prayed to dismiss the O.P. Before the Family Court, the appellant and the respondent adduced oral and documentary evidence. The Family Court, having considered the rival contentions, in the light of the case law placed by the parties, in support of their case, and considering the fact that the minor child was living with the respondent since the date of his birth, that the respondent is an educated lady and that she was educating her child and that her second husband who is also educated, has agreed to take care of the welfare of the child, ordered continuance of the custody of the minor child with the respondent and granted visitation rights to the appellant with prior notice to the respondent. While ordering so, the Family Court, further ordered the respondent to deposit the passport of the child in the Court record and made it clear that it shall not handed over either to the appellant or to the respondent without specific order from the Court, and further ordered that the respondent shall not move the child out of the country without prior permission of the Court and shall not cause any obstruction to the visitation rights of the appellant. Though the appellant and the respondent are contending that the custody of the minor child should be given to them, the fact remains, in the matter of grant of custody of minor child to either of the parents, the paramount consideration that weighs with the Court is the interest and welfare of the child and not the rights of the parents that are provided under a statute. So, therefore, keeping these aspects in mind, we shall proceed to consider whether the Family Court, was unjustified in refusing to grant custody of the child to the appellant, who is the father. Even though a year or so after birth of the child, the appellant and the respondent took divorce and are living separately, the fact remains, the minor child is living with the respondent since the date of his birth. After taking divorce, as noted supra, both the appellant and the respondent, re-married. As the respondent after taking divorce, is said to have re-married a Pakistani, the appellant is seeking custody of the child, because he apprehends that if she leaves India to join her husband, then there will be no one to take care of the child and the child will be forced to live like an orphan. However, it is the case of the respondent that the appellant has not been paying the maintenance of Rs.1,000/- to the child, that he is an illiterate and has no financial capacity to take care of the child, that she being a literate, was spending about Rs.3,000/- per month towards his education and that the child stand 3rd rank in the class. That even though she married a Pakistani, her second husband is living in America, that he is an educated man, and that he has agreed to take care of the child, and it appears from the record that he has also given an undertaking to the Family Court that he would take care of the interest and welfare of the minor child and educate him. Though the appellant contends that illiteracy and financial incapacity cannot be a ground to deny custody of the minor child to the appellant, the fact remains, the Family Court considered these aspects, and though it held that illiteracy and financial incapacity cannot be disqualifications from grant of custody of the child to the respondent, but having regard to the nature of contentions raised by the respective parties, proceeded to consider the question relating to grant of custody of the child bearing in mind, as to in whose custody, the interest, welfare and well-being of the child, would stand well protected. The Family Court, considering the fact that the appellant was suffering from cancer and needs money for his treatment, and further considering the fact that the minor child, who was aged eight years, was living with the respondent and as per the school record, he was scoring good marks at the school, as is evident from Exs. R1 and R3, which disclosed that the child scored 88% and 95% in his studies, and considering his brightness in studies, felt that the child needs proper encouragement and financial support to prosecute his further studies, and having felt so, proceeded to consider as to whether the appellant, who was seeking custody of the child, was in a position to provide necessary financial support to the child for his future education. In considering so, the Family Court took note of the fact that the appellant though stated that he is willing to pay maintenance to his child as per his capacity, but in his cross-examination has not stated as to what was his paying capacity. That being so, and considering the fact that second husband of the respondent, who is a Pakistani, has agreed and given and filed a declaration before the Court to the effect that he would take care of the minor child, felt it appropriate that custody of the child should be continued with the respondent. The Family Court having considered the apprehension of the appellant that since the respondent re-married a Pakistani, and if the respondent leaves India with the child, there is possibility of his not being taken care of well, the Family Court, observed that in the grant of custody of minor child, what should matter is humanity and human approach and not as to which national a person belongs. Thus, having taking all these aspects into consideration, the Family Court felt that the interest and welfare of the child would stand well protected if the custody of the child is granted to the respondent, and accordingly directed continuance of the custody of the child with the respondent, and we find no reason whatsoever to therewith, and more so, when the same, considering the fact that the appellant is the natural father, granted him visitation rights. As noted supra, the Family Court, while continuing custody of the minor child with the respondent, ordered the child’s passport to be kept in the court record, and also ordered that the passport shall not be released without permission of the Court and that the child also shall not be taken out of India without the permission of the Court. During the pendency of the appeal, the respondent, having regard to the above directions given by the Family Court, sought release of the passport of the child and also to grant permission to move the child out of India to Saudi Arabia for performing Ummrah, but such request of the respondent, on contest by the appellant was rejected the Family Court, by reason of the orders under revision. Praying to set aside the above orders, the respondent, as noted supra, filed the present C.R.Ps., contending that the Family Court committed an error in not releasing the passport of the child and not granting permission to the respondent to take the child out of India to Saudi Arabia, for performing Ummrah. However, the learned counsel for the appellant supported the order under revision, contending that if the respondent is allowed to move the child out of India, then there will be possibility of the respondent never bringing the child back to India and taking him to Pakistan and landing him in the hands of terrorists, in which event, it will be difficult of the appellant to bring back the child to India or for that matter even the Courts would be helpless, because there is no law to meet such situations. As noted above, the respondent was given custody of the child, and she wants to take her son on a religious pilgrimage to Saudi Arabia, for performing Ummrah. The respondent, except seeking release of the passport of the minor child and taking the child out of India, has not given the tour schedule as to when Ummrah would be performed, when the child will be taken out of India and when he will be brought back to India, the place of his stay etc. In the absence of these details furnished by the respondent, the Family Court, dismissed the applications filed by the respondent seeking release of the minor child’s passport and permission to take him out of India for performing Ummrah, and no exception can be taken thereto. Though the appellant contends that if the passport of the child is released and the respondent is allowed to take the child out of India, then there is every possibility of the respondent not bringing the child back to India and taking him to Pakistan and landing him in the hands of terrorists, we are of the considered opinion that they are only apprehensions, which are not well-founded. The appellant except making bald statement that because the respondent re-married a Pakistani national, if she is permitted to move the child out of India, she would land him in the hands of terrorists, and in which case, it would be difficult for him to get him back to India and for that matter even the Courts would be helpless, has not placed any material to show that the second husband of the respondent has any links with terrorists either directly or indirectly. The respondent, who is the mother of the child, or for that mother, no mother, who gives birth to, rears and loves her child so much, would intentionally and knowingly take the risk of throwing the child in the hands of terrorists. There is no doubt that the appellant is given visitation rights, and if the child is moved out of India, his visitation rights would be affected, but such rights would be affected only for a limited i.e. for the period the boy would be taken out of India for performing Ummrah at Saudi Arabia, and merely because his visitation rights for the limited period would be affected, he cannot be allowed to make such baseless allegations against the respondent that if she is permitted to move the child out of the country, she would land him in the hands of terrorists. Be that as it may, since the appellant has been given visitation rights over the child, the respondent who is given custody of the child by the Family Court, cannot be allowed to act in a manner affecting or defeating the visitation rights of the appellant over the child, and thereby deprive the child the love and affection of his natural father and vice-versa. It is the case of the respondent even though she re-married a Pakistani, she just wants to take the child out of India for performing Ummrah, and nothing else, that if she had the intention of taking the child out of India, she would have done so, even before the Family Court directed her to deposit the passport of the child in the Court, which she did not do. She further submits that once Ummrah is performed, she will bring back the child to India, and for that purpose, she is ready and willing to give a declaration and abide by any conditions the Court may impose, for the release of the passport and the safe return of the child to India after Ummrah is performed at Saudi Arabia. Since it is the case of the respondent that she wants to move the child out of India for performing Ummrah in Saudi Arabia, and if really she is interested in release of passport of the child and permission to take the child out of India, for performance of Ummrah at Saudi Arabia, the only remedy for her is to make fresh applications before the Family Court, furnishing all the details of the visit, such as, as to when Ummrah will be performed, when the boy will be taken out of India and brought back to India, the address of place of stay etc., and also subject to her furnishing undertaking/giving bonds, as may be directed by the Court for the safe return of the child to India, so that the fears of the appellant, who being the father of the minor child, and provided with visitation rights, are allayed. If any such applications are made, and the respondent furnishes undertaking/bonds as may be directed by it, the Family Court shall consider the same and pass appropriate orders, in accordance with law. Accordingly, with the above observations, the CMA is dismissed and the CRPs are disposed of. No costs. ___________________ N.V. RAMANA, J. ____________________ V. SURI APPA RAO, J. Dated: 28th January, 2010 KSR