JUDGMENT : Rajani Dubey, J. 1. The challenge in this appeal is to the judgment and decree dated 24.04.2024 passed by the learned First Additional Principal Judge, Family Court Durg (C.G.) in Miscellaneous Civil Suit No. 48/2022 whereby the application filed under Sections 25 and 26 of the Guardians and Wards Act, 1890 by the respondent No.1-herein was allowed and custody of the child is ordered to be kept with the mother, the respondent No.1- wife herein. The parties to this appeal shall be referred herein as per their description before the learned Family Court. 2. Admitted facts of the case are that the marriage between the applicant/wife and non-applicant No.1/husband was solemnized on 18.01.2017, according to Muslim Rituals and Customs and from their wedlock, son Akhtar Raza was born on 17.11.2017 and one daughter was born on 01.11.2020. It is also an admitted fact that non-applicant No. 2, non-applicant No.3 and non-applicant No. 4 are father-in-law, mother-in-law and brother-in-law of the applicant/wife respectively. 3. In the application, it has been pleaded by respondent No. 1/wife that after her marriage she was subjected to cruelty on the ground of demand of dowry, for which she lodged the complaint at Mahila Thana, Sector-6. Her in-laws harassed her on account of black magic. She further stated that her husband i.e. appellant works in Dubai and earns Rs. 80,000/- per month. He used to come to his parental house once or twice a year for some limited days. Before September 2021, he came to Bhilai, ousted the respondent No. 1 from the house and retained minor son with him. For the custody of minor son, respondent No.1 preferred an application before the Police Station and also before the SDM, Durg, where her in-laws denied to give custody of minor son to her. After non-applicant No. 1 went to Dubai, son Akhtar Raza is not getting love from the parents and he is not getting proper upbringing. Non-applicant No. 3 remains busy in her work, the rest of the non- applicants also remained out of the house for their work. Due to this, the mental development, health and diet of the minor son is getting affected and his life, health and education are getting adversely affected. In such a situation, there is no other option except the applicant, for the bright future, education of her son. Due to this, the mental development, health and diet of the minor son is getting affected and his life, health and education are getting adversely affected. In such a situation, there is no other option except the applicant, for the bright future, education of her son. The non- applicants restricted her from meeting the child. The cause of action arose in the month of September 2021 when the applicant's son was taken away from her unfairly and illegally. Since the cause of action is within the jurisdiction of the Court, the present application has been filed in this Court. Therefore, on the above grounds, a request has been made to hand over her minor child Akhtar Raza to her. 4. The appellant/non-applicant No.1 filed his written statement denying all the allegations and averments of the application and submitted that respondent No. 1 was never subjected to cruelty and harassment, all the allegations are false in nature. He works in Abudhabi as a worker in a company and earns about Rs.30,000/- per month and out of which he regularly pays Rs. 5,000/- per month to his parents in compliance of judicial order. He further submitted that respondent No.1 herself left her matrimonial home and also she herself left her minor son in the safe custody of her in-laws and then she never returned back. She used to beat minor son without any reason. She never took care of minor son even she stopped breast feeding when minor son was aged about 3 months. She used to say that she did not want a baby, thus she did not love him and had no affection with him. He further stated that minor son was taken care by the appellant and his family members since his birth. Due to abnormal behavior of respondent No.1, appellant started residing in a rental house since 08.09.2021, where also she did not take care of minor son. She was always negligent towards the study and growing of the minor son. It is the appellant/husband and his family, who always take care of minor son and they got him admitted in the school for his study. Applicant/wife herself kept a daughter with her. She is a housewife. She is dependent on her father. She does not have her own source of income. In such a situation, she is not capable of raising her minor son better. Applicant/wife herself kept a daughter with her. She is a housewife. She is dependent on her father. She does not have her own source of income. In such a situation, she is not capable of raising her minor son better. Thus, keeping in view the future of the child, it would be justified to keep him with his grandparents under the protection of non-applicant No. 1 for proper upbringing. Non-applicant No. 01 talks to his minor son Akhtar Raza on video call every morning and evening and gives him a lot of love and affection. For the future of the child, he is working abroad, in the near future he will reside in Bhilai. Therefore, the application filed by the applicant may be dismissed. 5. On the basis of pleadings of the parties, learned trial Court predominantly framed two issues. The first issue is whether the non- applicants illegally removed the applicant's son, Akhtar Raza, from the protection of the applicant? The Court answered it in positive. The second issue is whether the applicant entitled to obtain custody of her son Akhtar Raza from the non-applicants for his welfare? The Court answered it in positive. Thereby the application for custody of the child Akhtar Raza by mother was allowed. 6. Learned counsel for the appellant would submit that the impugned judgment and decree passed by the learned Family Court are illegal, erroneous and contrary to the material available on record and the provision envisaged in the Guardians and Wards Act as well. The learned trial Court failed to appreciate the fact that minor son is residing with the appellant and his family members since his birth. Respondent No.1 herself left her matrimonial home and also the minor son and therefore she cannot claim the custody of the minor son. In her application, she has nowhere pleaded about her source of income and as to how and in what manner she will take care of minor son. out of two children, minor daughter namely Abeeha Naaz is residing with respondent No.1, which is an admitted fact and cannot be denied by the respondent No1. In her application, she has nowhere pleaded about her source of income and as to how and in what manner she will take care of minor son. out of two children, minor daughter namely Abeeha Naaz is residing with respondent No.1, which is an admitted fact and cannot be denied by the respondent No1. Appellant and his family members are taking care of minor son since his birth and they got him admitted in the school for his better study, whereas respondent No.1 is a spleenful lady, who does not love the minor son and had never visited her matrimonial home to meet her minor son. It shows that she has no love and affection with him. He further submits that as minor son Akhtar Raza never left nor removed from the custody of his guardian, Section 25 & 26 of Guardians and Wards Act will not be attracted in the instant matter and therefore the appeal may be allowed. 7. On the other hand, learned counsel for respondent No.1 submits that the welfare of the child would be paramount consideration, consequently the evaluation of evidence by the learned trial Court that the welfare of the minor child would be much better with the mother, is correct. Learned trial Court minutely appreciated the evidence of both the parties and passed the impugned judgment and decree which are well merited and do not call for any interference by this Court. To buttress her submission, she has placed reliance on this Court’s judgment dated 09.03.2022 passed in FAM No. 165 of 2019 in the matter of Irfan Ur Rahim Khan Vs. Smt. Farha Khan. 8. Heard learned counsel for the parties and perused the material available on record. 9. It is not disputed in this case that marriage of appellant/husband and respondent No.1/wife was solemnized on 18.01.2017 according to Muslim Rituals and Customs and from their wedlock, son Akhtar Raza was born on 17.11.2017 and one daughter was born on 01.11.2020. It is also an admitted position that respondent No. 2, respondent No. 3 and respondent No.4 are father-in-law, mother-in-law and brother-in-law of respondent No.1/ wife respectively. 10. Respondent No.1/wife filed application under Section 25, 26 of the Guardians and Wards Act, 1890 before the learned trial Court on 29.03.2022 and at that time, her son Akhtar Raza was aged about 5 years. 10. Respondent No.1/wife filed application under Section 25, 26 of the Guardians and Wards Act, 1890 before the learned trial Court on 29.03.2022 and at that time, her son Akhtar Raza was aged about 5 years. 11.On the basis of pleadings of both the parties, learned trial Court framed following issues:- 12. In para 16 of his cross-examination, appellant/non-applicant No.1-Mustafa Raza admitted that he has been working in abroad for about 10 years and he came his home once every year for a month's leave. He denied that his son Akhtar Raza alias Imad lives with his parents. Further, he voluntarily stated that since he lives in abroad and the applicant/wife had gone away leaving his son behind, therefore, he left his son with his parents and went abroad. In para 17, further he admitted that he never made attempts to meet his daughter- Fatima and he has no relationship with her. 13. Maulana Yahya (N.A.W.-1), Mohammad Ashif Siddiqui (N.A.W.-2), Siraz Azmi (N.A.W.-4) and Musart Zaha (N.A.W.-5) supported the statement of Mustafa Raza/appellant and stated that minor son Akhtar Raza is living with his grandparents and appellant- Mustafa Raza is working in Dubai. 14. Maulana Yahya (N.A.W.-1) admitted this suggestion that he had filed application for maintenance against his son (Appellant). 15. Non-applicant witnesses admitted this fact that appellant- Mustafa Raza is working in abroad and he came his home once every year. 16. Main objection of the non-applicants is that the respondent/wife left her son when he was aged about 4.5 years. However, it is clear from statement of all witnesses that one daughter namely Fatima is residing with respondent No.1/wife and son Akhtar Raza is residing with his father/appellant. Respondent No.1/wife filed various applications wherein she complained that non-applicants did not allow her to meet her son and they took away her minor son forcefully and illegally from her and kept him under their control. 17. We have also interacted with minor son and his parents as also with their counsel on 06.02.2025 and ordered that the appellant shall allow the respondent No.1/wife to meet her son Akhtar Raza at Surya Treasure Island Mall, Bhilai on every Sunday from 2:00 p.m. to 6 p.m. and respondent No.1/wife was also directed to let her daughter meet the appellant/father and her brother Akhtar Raza at the same place. 18. In the matter of Irfan Ur Rahim Khan Vs. 18. In the matter of Irfan Ur Rahim Khan Vs. Smt. Farha Khan. /b>, this Court vide judgment dated 09.03.2022 passed in FAM No. 165 of 2019 held in paras 19, 20, 22 and 23 as under:- “19. Under the Principles of Mohmmadan Law, 9th Edition, by M. Hidayatullah & Arshad Hidayatullah Section/Rule 351 governs the guardianship of persons and property and its appointment. It purports appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what would be best for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and of the proposed guardian with the minor or his property. Further “if the minor is old enough to form an intelligent preference, the Court may consider that preference". 20. Under the principles of Muslim law, the mother is entitled to the custody of her male child until he has completed the age of seven years and of her female child until she has attained the age of puberty i.e., 14 years. However, the principle of law which is well established is that in a proceeding for appointment of guardian, it is not the guardianship of minor which is of importance, but the welfare of the minor has to be taken into consideration. If there is a conflict between the personal law to which the minor is subject and the consideration of the minors' welfare, the latter must prevail. Likewise where the provisions of law are in conflict with the provisions of Guardians and Wards Act, the latter will prevail over the former. 22. Having thus given our thoughtful consideration to the facts and material evidence of the present case, we are of the opinion that proper and paramount welfare of children lies with the custody of the respondent-mother and therefore, the finding recorded by the learned court below to keep the custody of the minor children with the mother does not warrant any interference. 23. Now coming to the visitation rights of the father in respect of the children who are in custody of mother, reading of the impugned judgment would show that no specific direction with particular rights and guidelines regulating the visiting arrangements was given by the learned Court below. The Apex Court in Yashita Sahu Vs. 23. Now coming to the visitation rights of the father in respect of the children who are in custody of mother, reading of the impugned judgment would show that no specific direction with particular rights and guidelines regulating the visiting arrangements was given by the learned Court below. The Apex Court in Yashita Sahu Vs. State of Rajasthan (2020) 3 SCC 67 held that even after the custody was given to one parent, the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. The evidence in this case does not show any extreme circumstances whereby one parent for all practical purposes can be denied to meet the child. The evidence has come on record that even though the mother and father are living separately and the children are staying with the mother, yet the father often uses to meet the children.” 19. In light of above, in the present case also, it is quite vivid that minor daughter is residing with her mother/respondent No.1. Minor Akhtar Raza was aged about 4.5 years at the time of filing the application under Sections 25 and 26 of the Guardians and Wards Act, 1890 by the respondent No.1/wife. It is also admitted by appellant and his witnesses that he is not residing in India and came home only for one month in a year. The minor son is residing with the grandparents. Further, it is also admitted by parents of the appellant and appellant himself that the parents of the appellants depend upon the appellant for their livelihood and his parents also filed application for maintenance against him. 20. Learned trial Court minutely appreciated oral and documentary evidence and allowed the application of respondent No.1/ mother. We are of the considered opinion that proper and paramount welfare of children lies with the custody of the respondent-mother and therefore, the findings recorded by the learned trial Court are based upon proper appreciation of oral and documentary evidence and do not call for any interference by this Court. The appellant is directed to give custody of minor son Akhtar Raza to respondent No.1/wife within two months from today. 21. The appellant is directed to give custody of minor son Akhtar Raza to respondent No.1/wife within two months from today. 21. Now coming to visitation rights of the parents in respect of the children, reading of the impugned judgment would show that no specific direction with particular rights and guidelines regulating the visiting arrangements was given by the learned trial Court. 22. Again in the matter of Irfan Ur Rahim Khan (supra), this Court observed in para 24 as under:- “24. The Supreme Court in Yashita Sahu (Supra) further observed that the concept of "visitation rights" is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. It held that the child has a human right to have the love and affection of both the parents and Courts must pass orders ensuring that the children are not totally deprived of the love, affection and company of one of their parents.” 23. In the present case also, it is clear that daughter is residing with respondent No. 1/mother and son is residing with parents of appellant/husband. For welfare of children and for psychological development, it is important that both children stay together and get the love of both parents. The interests of the child are best served by ensuring that both the parents have a presence in his/her upbringing. Therefore, we hereby order to facilitate the grant of visitation and contact rights to the father. The following arrangement shall be made by both the appellant and respondent No.1 as father and mother: (i) The appellant is directed to give custody of minor son Akhtar Raza to respondent No.1/wife within two months from today. (ii) The appellant/father would be able to engage with the children on a suitable video conferencing platform for one hour every Saturday and Sunday and 5-10 minutes on other days. (iii) Both the appellant/father and the respondent No.1/ mother in order to facilitate the video conferencing between them shall procure smart phones which would facilitate the inter-se video calling. (iv) During long holidays/vacation covering more than 2 weeks the minor son will be allowed to be in the company of the father for a period of 7 days and the mother, if so desires, can also accompany them. (iv) During long holidays/vacation covering more than 2 weeks the minor son will be allowed to be in the company of the father for a period of 7 days and the mother, if so desires, can also accompany them. The period shall be fixed by the father after due intimation to the mother and she will permit the son to go with the father for the aforesaid period and the mother, if so desires, may also accompany them. (v) During festivals like Eid, Ramjan etc., the father may join the company of the children at the place of the mother and spend the festival days with the children along with the mother. 24. With the aforesaid observations/direction, the appeal stands disposed of.