Judgment :- Dr. B. Siva Sankara Rao, J. 1. The appellant Ahmed Mohiuddin is the husband of Shabana Yasmeen who is the respondent herein as well before the Judge, Family Court, Hyderabad in O.P. No.1411 of 2010. The petitioner, appellant herein, filed the said petition, under Section 25 of Guardians and Wards Act against his wife, for custody of their three minor children viz., Ramsha Tahoor Ahmed, 17 years; Zubia Menaaz Ahmed, 15 years; Mohammed Afraz Ahmed, 7 years. Before the trial Court the petitioner himself was examined as P.W-1 with reference to Exs.P-1 to P-51 and one M.M. Hussain was examined as P.W-2 and the respondent herself was examined as R.W-1 with reference to Exs.R-1 to R-7. The trial Court pursuant to the pleadings and contest basing on the evidence, dismissed the petition by order dated 15.06.2013 negating the custody with observations that since all the three children are residing with the mother i.e., respondent and of whom the 1st daughter is a major, the 2nd daughter also almost reached the age crossing minority, but for the third issue son, born on 10.05.2004, for whom the petitioner has been enjoying the visiting rights as per the orders in I.A. No.372 of 2011, there is nothing to disturb their custody from the children also willing to stay with their mother. 2. The present appeal is filed questioning the legality and correctness of the order of the learned Judge, Family Court in negating the custody as sought for. 2. The present appeal is filed questioning the legality and correctness of the order of the learned Judge, Family Court in negating the custody as sought for. The contentions in the grounds appeal, so also in the written arguments he submitted by referring six expressions viz., Mir Mohamed Bahauddin V. Mujee Bunnisa Begum Sahiba (AIR 1952 (39) Madras 280 (C.N.105(16), (Madras High Court), Arafathunnisa V. T.I. Zeeyavudeen, Taraja Beevi and Mohammed Yasin (2010 Law Suit (Mad) 2338) (Madras High Court), Jaswant Kaur V. Chanan Singh ( AIR 1962 Manipur 60 (V 49 C 20) (Manipur High Court), Syyad Sabdarali Sy.Nyajali V. Shahistabegum (2007 Law Suit (Bom) 468) (Bombay High Court of Aurangabad bench) and of the Apex Court in Mausami Moitra Ganguli V. Jayan Ganguli (2008)7 SCC 673 ), Gayatri Bajaj V. Jiten Bhalla (2012)12 SCC 478) as well as oral submissions in the course of hearing by appearing in person are that, the learned Judge, Family Court failed to understand the spirit of the order made in C.R.P. No.5663 of 2011, dated 23.12.2011 and scope of Section 25 of the Guardians and Wards Act, besides Section 7 of the Family Courts Act, in coming to the conclusion which is contrary to law and weight of evidence, that the trial Judge should have allowed the petition as prayed for by granting custody of children being the father and natural guardian and is in a better position to maintain them for overall development of the three children when compared to the mother of the children and in the welfare of the children, that the learned Judge should have seen that the application for restitution of conjugal rights filed by him was allowed against his wife who failed to join without justification for staying away with the children, that the trial Judge should have seen that the children were tutored to express as if their views which are not independent to be influenced by it for those are false statements because given at the instance of their mother, where continuation of children is not in their welfare, that now visiting rights providing the children are happily enjoying in his company in visiting British Library, amusement parks, exhibitions, shopping malls, restaurants, country-club, relatives houses and seminars and in particular the third child-male issue, presently aged 9 years, being comfortable in his company, that he is interested in joining him in Hyderabad Public School or Chaitanya Techno School with C.B.S.E syllabus being highly qualified having been distinction in M.Tech (I.T) and widely travelled and worked in leading companies in TATA, Blue Star, K.N.P.C and as research engineer in I.I.T, Kanpur to guide the child in day to day academic prosperity, that having regard to the above, there are no valid grounds for the trial Court to negate the custody of the children to hand over to him being the father and natural guardian, that the observations of the trial Court are based on surmises by misreading of facts and law and also the oral and documentary evidence and in ignorance of the respondent-mother of the children is not taking proper care to the welfare of the children with inferiority complex and ego problem which conduct is not just in their upbringing under her custody and care that impedes their academic progress and hence to allow the appeal. 3. Whereas, it is the contention of the learned counsel for the respondent that the order of the lower Court is supported by reasons, a well considered one having fresh in mind, the facts in arriving a right conclusion and for this Court while sitting in appeal, there is nothing to interfere, that it is not at all conducive for the children to hand over their custody to the father, particularly the third issue minor son, leave about the issue Nos.1 and 2 daughters already attained majority and the custody petition in relation to them became infructuous; that the conduct of the petitioner-appellant-father of the children in giving various false complaints against the respondent wife and her relatives intentionally to harass, reads a lot to say the welfare of the children will not sub-serve in his custody, that she is taking care of all the welfare of the three children who are studying well under her guidance, that the children are also not willing to go to their father becoming panic to any suggestion to go and thereby sought for dismissal of the appeal. 4. Perused the material on record. The parties are being referred to as they are arrayed in the trial Court for the sake of congvenience. 5. Now, the points that arise for consideration are: i) Whether the petitioner-father is entitled to the custody of the third issue-male child still minor (leave about the 1st and 2nd issue became majors pending the proceedings and the relief became the infructuous) to disturb the custody from the respondent-mother where the three children are residing and if so, the impugned order of the learned Judge, Family Court negating the custody and only providing visiting rights is unsustainable and requires interference by this Court while sitting in appeal and with what observations? ii) To what result? POINT No.i: 6. Undisputedly, the petition filed before the trial Court was under Section 25 of the Guardian and Wards Act and the parties are governed by Muhammadan Law. The marriage of the petitioner and respondent was performed as per Muslim rites and religious custom, admittedly, on 14.10.1991. During their wedlock they blessed with the three children, the eldest born on 28.09.1992 since major, second issue born on 12.04.1996 since major and the third issue male child born on 10.05.2004 still minor. The marriage of the petitioner and respondent was performed as per Muslim rites and religious custom, admittedly, on 14.10.1991. During their wedlock they blessed with the three children, the eldest born on 28.09.1992 since major, second issue born on 12.04.1996 since major and the third issue male child born on 10.05.2004 still minor. It is also not in dispute that the petitioner and the respondent have strained relations, made them to live apart. According to the petitioner, they stayed at Kuwait, where he was having Job visa with sponsored family visa and the respondent came to India in February, 1996 for giving birth to the 2nd issue and latter they lived with their two daughters in Saudi Arabia for about three years till August, 1999. They all, four, returned to India in August, 1999 and lived at Somajiguda, Hyderabad till December, 2009 and it is during said stay at Hyderabad they blessed with the third issue, male child, on 10.05.2004. According to the petitioner, the respondent wife filed M.C. No.41 of 2010 on the file of Judge, Family Court, Hyderabad, after exchange of notices between them and she failed to join him even for his efforts and requests to join along with the children, that he was serving in Forebells High School as Public Relation Officer, that the respondent at the influence of her mother, brothers and uncle, a police officer, lodged a complaint dated 22.12.2009 that he also presented a complaint dated 22.12.2009 against her uncle, the S.I. of Police, Punjagutta and again on 24.12.2009 and on 11.01.2010 to the Inspector of Police, Humayun Nagar; that he also approached Human Rights Commission on 04.06.2010 for inaction of the police to act on his complaints, that he also issued legal notices demanding his wife to join his company and she did not respond for all the efforts of amicable settlement to live together and she is not even allowing him to see the children. According to him, despite these facts he is contributing for the academics of the children from which the eldest daughter is prosecuting M.B.B.S. The contention of the respondent-wife is that she was subjected to cruelty and ill-treatment all through by the petitioner and not only herself, but also her family members and relatives were even harassed by his false complaints one way or the other and many a time and it is not conducive to disturb the custody of the son. 7. Besides the oral evidence of the petitioner as P.W-1 and the respondent as R.W-1, the evidence of the so called independent witness-P.W-2 cause examined by the petitioner/appellant, whose name is one Hussain aged about 48 years of Gulrez Apartments, Somajiguda, Hyderabad, a neighbour to the petitioner is that; on 20.12.2009 at about 10.30 P.M he saw three persons, who are relatives of respondent, coming with S.I. of Police and two constables of Punjagutta Police Station to Flat No.112 of the petitioner and they created nuisance and disturbance and forcibly took away the respondent with the three children with bag and baggage and the petitioner was assaulted and pushed and forced to sit in the police jeep and was taken by police in a high handed manner by terrifying him. He deposed that the three children are very decent, intelligent, sincere and bright children. From his chief-examination so far as the custody matter concern, there is nothing to speak as to the paramount consideration of the welfare of the children, if at all being subserved by giving custody of the children rather continuing with respondent. In his cross-examination, P.W-2 deposed that the petitioner is his friend as they are staying at same floor and known to him for the past 15 years and presently he is with no job and he does not know what is his income while working at abroad or at Delhi for some time and he has not seen petitioner quarrelling with anybody and he does not know whether he undergone any treatment before a psychiatrist of Care hospital and he does not even know whether the association members of the apartment filed any case against the petitioner for not paying maintenance of the flat at Rs.1,300/- per month and water supply was cut off for bath rooms and kitchen of the apartments therefrom. Thus, from the said evidence of P.W-2, but for the so called forcibly taking of the respondent and the children by her family members through police assistance in December, 2009, there is nothing even deposed of any of the three children visited the petitioner or petitioner visited the three children or he attended to their care or welfare. P.W-2’s evidence supra one way speaks all the three children are sincere, decent, intelligent and bright students. He further deposed that the petitioner with no avocation at present. It is also important to note that in the maintenance case M.C. No.41 of 2010 filed by respondent against the petitioner to award maintenance to her and the three children, he contested by filing counter and also by submitting written arguments which are marked as Exs.R-1 and R-2, that he has no means and is a dependent on his brothers for his livelihood and therefrom cannot pay any maintenance to them; besides the contest of the claim of his wife of any inability to maintain is not correct for having means, further that she is not entitled to any maintenance-having failed to join him despite his demands and even after decree for restitution against her. No doubt, in the maintenance case Rs.3,500/- per month to the wife and eldest daughter and Rs.2,000/- per month to the second daughter and son respectively was awarded by the trial Court by order dated 13.01.2011 and he preferred revision impugning the same, wherein interim stay was granted pending disposal of the revision subject to payment of Rs.5,000/- per month to all of them that is also not in dispute, but for any dispute as to not making payments properly. 8. The order of the Family Court speaks that, the learned Judge, ascertained the views of the three children in the chambers that is reflected in para No.17 of the order of whom the eldest became major and for the second few months remained to attain majority, but for the son minor and they expressed their unwillingness to go to their father and stated that they are comfortable in the care of their mother. 9. It is important to note that pending the custody petition before the trial Court, there was an application for interim custody and as per the order dated 20.01.2011 in I.A. No.1 of 2011 visiting rights provided. 9. It is important to note that pending the custody petition before the trial Court, there was an application for interim custody and as per the order dated 20.01.2011 in I.A. No.1 of 2011 visiting rights provided. Whereunder the family Court passed orders directing the respondent wife of the petitioner, to bring the three children to Mucca Masjid on 4th Sunday on every month between 2.00 to 4.00 P.M for his access to the children and she filed I.A. No.372 of 2011 to modify the same say there is a prohibition for ladies entering into the mosque and the respondent-father is at liberty to visit the petitioner’s house to spend with the children without any disturbance to him for her living with her mother and brothers and the order was modified after contest therefrom on 06.06.2011 to bring the 3rd and 2nd issues, for the first issue became major, once in a month on 4th Sunday to main gate of N.T.R. Park between 2.00 to 4.00 P.M for the respondent-father to spend with the children therein. The order continued thereafter undisputedly. At the cost of repetition subject to that order of visiting rights to continue, the custody petition since dismissed by the trial Court; pending the appeal he sought for intermittent custody in FCA MP No.743 of 2013. A division bench of this Court passed order therein dated 27.01.2014 observing that, for the relationship not in dispute and the trial Court already granted visiting rights to him, for eldest daughter already attained majority and the second daughter is about to become major, no harm would be caused to the children if the custody is given to him for a spell and thereby given intermittent custody of the 3rd issue-son for both days inclusive total 9 days from 11.05.2014 to 19.05.2014 during last year summer vacation. In the appeal during the course of hearing among the material filed by the appellant contesting in person, he filed some photos of the minor son given intermittent custody to him supra, showing the son was comfortable in spending with the father in a joyful mood, that belies the contest of the respondent-wife through her counsel that the son became panic during that intermittent custody supra, with all discomfort. In fact there was no any application or memo filed before this Court by the respondent-wife complaining of such a dis-comfort to give much credence to her said version. 10. Coming to the subsequent events pending the appeal, another bench of this Court on 25.09.2014 observed that the learned Judge had a talk to the minor boy and also the appellant (father) and respondent (mother) respectively in deciding the M.P. No.370 of 2014 filed by the appellant; that as in the summer vacation of 2014 for one week intermittent custody of the minor son was given to the appellant and thereby considered appropriate to grant interim custody for one day on 04.10.2014 Bakrid day from 9.00 A.M to 8.00 P.M and to hand over back custody of the minor boy to his mother-respondent by the father-petitioner and compliance of the same was also recorded by the Court on 08.10.2014. It is subsequently in deciding another miscellaneous application M.P. No.491 of 2014, the division bench of this Court consisting one of us (RSR,J), observed on 23.12.2014 that the minor boy aged 11 years present and the appellant father wants to have access to the child during the vacation for Christmas & Sankranthi (2014-2015). The petitioner in person and the child were interviewed in the chambers and issued a direction to the petitioner (who took the child from the school) to drop the boy at the respondent’s residence by 5.30 P.M with a direction to the respondent’s Advocate to ask the respondent to appear before the Court on 24.12.2014 besides the respondent’s advocate also to be present for further hearing. Accordingly on 24.12.2014 the bench taken up the petition and interacted with the appellant and the respondent jointly and independently and also the child who did not open his mind earlier but for after making him to feel comfort and free by putting some preliminary questions and therefrom ascertained his views as to willing to go with his father to spend in the vacation, the minor boy expressed his unwilling stating that he would like to spend vacation with his mother and sisters. The interaction and the views that are ascertained by the bench is born by Court record with observation that they found the child was not comfortable in the company of the father and also for the reason that it was on 22.12.2014 the father of the child taken away the boy from the school and the child stated that it is virtually by forcing him to accompany and the taking away of the child from the school is without even permission of the Court or permission of the mother of the child in whose custody the child is and the respondent-wife told that even she talked over phone to the petitioner to immediately drop back at her home, he did not do so and his version that the child insisted to take him from the school is thereby negated as interaction with the child and the parties show the conduct of the appellant otherwise and thereby held not incline to grant intermittent custody for Christmas/Sankranthi vacation sought for. 11. With this development events and in the factual matrix, whether the appellant-petitioner is entitled to custody of the boy, muchless to modify the order of the lower Court by sitting in appeal against rejecting the custody and providing only visiting rights concerned; all the six expressions placed reliance on by the appellant, in one voice say that the welfare of the child is the foremost and paramount consideration being most relevant, leave about any other relevant considerations like financial resources and love for child etc. 12. It is necessary to mention that the considerations for guardianship are somewhat different to custody. As in custody, irrespective of legal rights paramount consideration is the welfare of the child and whereas in guardianship among the natural guardian father and mother who have to be appointed, if not any other guardian or Court guardian or discriminatory or the like as the case may be vide Mohd. Shaharyar khan V. Hussain Khan (1996 (3) ALD-816 (DB). Now, coming to the custody, among the expressions relied upon by the appellant, the Madras High Court in Arafathunnisa (supra), at para 12 observed that interest and the welfare of the minor children are paramount importance rather than conflicting claims and interest of the parents even under the Muslim law. Shaharyar khan V. Hussain Khan (1996 (3) ALD-816 (DB). Now, coming to the custody, among the expressions relied upon by the appellant, the Madras High Court in Arafathunnisa (supra), at para 12 observed that interest and the welfare of the minor children are paramount importance rather than conflicting claims and interest of the parents even under the Muslim law. At para 8 of the judgment it was observed that, no doubt in Mohammadan Law when mother marries a stranger as her husband, the custody of the child should not be entrusted with her as held in several expressions. There, on facts, the appellant-mother after divorce with first husband, married another person a stranger therefrom negated custody of the minor female child to her. The facts of that decision thus have no application herein. As held in M.M. Ganguli (supra) in adjudication of the custody matters so far as factual matrix of the case are concerned, precedents held are not binding on facts. In M.M. Bahauddin (supra) also the Madras High Court way back in 1951 observed that paramount consideration for custody and also for guardianship even under Muslim personal law is the welfare of the child. Even the Bombay High Court in S.S.S. Nyajali (supra), observed referring to the principles of Mohammadan law Mulla, 19th Edition, Chapter XVIII under heading (B) at para 352, page 287, that mother is entitled to custody of male child until he completes the age of 7 years and of female child until she attains puberty and that right continues though she divorced by the father of the child, unless she married a second husband to give in such case custody to the father even within the age. It was also observed that, the personal law of the parties must be blended appropriately to ensure welfare of the minor even for appointing a guardian. Apex Court in Rosy Jacob V. Jacob A.Chakramakkal (1973)1 SCC 840 ) at page 855 para 15 observed as follows: “15. …. The children are not mere chattels: nor are they mere playthings for their parents. Apex Court in Rosy Jacob V. Jacob A.Chakramakkal (1973)1 SCC 840 ) at page 855 para 15 observed as follows: “15. …. The children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings; so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them”. 13. In Halsbury’s Laws of England the law pertaining to the custody of children has been stated at para No.809 that - “Wherein any proceedings before any Court, the custody or upbringing of a minor is in question, the Court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other”. 14. Rosy Jacob (supra) and Halsbury’s Laws on the principles of custody quoted (supra) are noted with approval by the Apex Court’s later expression in M.M. Ganguly (supra) holding that the question of welfare of the minor child must be considered in the background of relevant facts and circumstances for which stability, security and welfare of the child are paramount, besides preference by child also one of the considerations apart from the custody matters are not final and for any changed circumstances and in the welfare of the child, any directions or modifications regarding custody can be given by the Court. On facts, it was observed that the wife left the child at the third year and she is a teacher working at different places and the child all through is with father who is stable and secured and attending school and settled in the environment and as such and from his view also not willing to go to the mother, the custody has to be continued with the father in the welfare of the child. 15. If that analogy is applied to the facts herein from what is discussed supra, there are no grounds to disturb the custody of the minor child to give to the father even in the appeal muchless by reversing the lower Court’s order negating custody permanently to the father but for visiting rights while retaining in the mother’s custody. Further, there are no worth changed circumstances in between in favour of the appellant-father that could be brought in; Further, his conduct in taking away the child forcibly as observed by this Court on the docket referred supra goes adverse to him, though it might be his endeavour to spend with the child, his conduct is nothing but unjust and unfair. 16. Even from the expression in Gayatri Bajaj (supra), it is clearly laid down that, while considering the paramount consideration of welfare of the child, as part of duty of the Court; for rights of the parents under a statute will not outweigh the same, the wishes of the children are also a relevant factor. On facts therein, the divorced-mother even seeking custody of the two daughters from her ex-husband, the daughters wanted to continue with their father and not willing to go with their mother and there from observed that interest of the minors and their welfare better be sub-served to continue in the custody of the father without disturbance to give to the mother. Even this expression, no way helpful to the contention of the appellant to interfere with the order of the lower Court, but for to continue with mother and also the visiting rights to the father to spend at N.T.R. park every month Last Sunday. 17. Even this expression, no way helpful to the contention of the appellant to interfere with the order of the lower Court, but for to continue with mother and also the visiting rights to the father to spend at N.T.R. park every month Last Sunday. 17. It is true in Bimlenda Kumar Chatterjee V. Dipa Chatterjee (2001)8 SCC 5 )the apex Court held that humanitarian approach is necessary for solving the disputes regarding custody and guardianship and it was held that even custody retained with mother, the right of father to see the child at intervals cannot be ignored. In R.V.Srinath Prasad V. Nandamuri Jaya Krishna (2001)4 SCC 71 ) it was also held that since custody matters are sensitive issues involving emotions of parties concerned, the Courts have to strike a balance between the emotions and the welfare of minor, which is a matter of greater importance as held in Jai Prakash Khadria V. Shyam Sunder Agarwalla (2000)6 SCC 598 ). 18. Having regard to the cumulative consideration of all the facts and events discussed supra as the material on record filed by the appellant-father shows that the minor child son-third issue was comfortable in the last year summer vacation for 9 days (both days inclusive) from the photos for his spending joyfully though when ascertained the views in December, 2014 from the father forcibly taken him from the school a day before he expressed his un-willingness to go with his father; as the expressions supra clearly say while considering the paramount consideration of welfare of the child, the Court has to keep in mind the legal rights of the parties and emotions of the parties with humanitarian approach, by balancing with the paramount consideration of welfare of the child, it is just to consider besides visiting rights, once in a month as ordered by the trial Court confirming it, further to give 9 (nine) days custody (both days inclusive) in the summer vacation of every year during May till the child attains majority unless any further orders to modify the same in the welfare of the child. Accordingly point No.i is answered. POINT No.ii: 19. Accordingly point No.i is answered. POINT No.ii: 19. In the result, the appeal is allowed in part while confirming the order of the lower Court to the extent of visiting rights of once in a month on 4th Sunday at N.T.R Park for the petitioner-father of the minor boy to spend; also given once in a year during May, for 9 days (both days inclusive) custody in summer vacation. Any violation by any of the parties, the Judge, Family Court can be moved to enforce; besides liability for legal consequences of any disobedience. There shall be no order as to costs. As a sequel, miscellaneous petitions if any pending shall stand closed.