1. The petitioner, Master Syed Mesum Hussain, is the son of Mrs. Sara Syeda and the 3rdrespondent, Syed Mussadiq Hussain, born out of their wedlock. The present writ petition has been filed on behalf of the petitioner through his grandfather, Mr. Syed Mohammed Askari, acting as his General Power of Attorney holder.
1.1. According to the averments made in the writ affidavit, the marriage of Mrs. Sara Syeda with the 3rdrespondent was solemnized on 03.06.2010 in accordance with Islamic rites and customs. Out of the said wedlock, the petitioner, Master Syed Mesum Hussain, was born on 16.07.2011. It is alleged that the 3rdrespondent failed to take proper care of Mrs. Sara Syeda and their son and neglected his familial responsibilities, resulting in disputes between the spouses. Subsequently, the 3rdrespondent pronounced “Talaq,” leading to their separation. Thereafter, Mr. Syed Mohammed Askari, the father of Mrs. Sara Syeda, has been taking care of both Mrs. Sara Syeda and the petitioner.
1.2. It is stated that the 3rdrespondent instituted proceedings under the Guardians and Wards Act, 1890, in G.W.O.P. No. 711 of 2011 before theFamily Court, City Civil Court, Hyderabad, when the petitioner was about one and a half years old. During the pendency of the said proceedings, Mrs. Sara Syeda filed M.C. No. 146 of 2013 seeking maintenance against the 3rdrespondent before the Additional Metropolitan Sessions Judge-cum-Additional Family Court-cum-XXIII Additional Chief Judge, Hyderabad.The said maintenance case was allowed, and maintenance was awarded atthe rate of Rs.5,000/- per month to Mrs. Sara Syeda and Rs.2,500/- per month to the petitioner.
1.3. It is further stated that Mrs. Sara Syeda remarried a German citizen in August 2024 in accordance with Muslim Personal Law and has continued to look after the educational and welfare needs of the petitioner. She now intends to take the petitioner to Germany for his education. It is stated that educational institutions in Germany require the child to be present at least three months prior to admission. Accordingly, the petitioner applied to the 2ndrespondent–Consulate of Germany for issuance of visa.
1.4. The grievance of the petitioner is that the 2ndrespondent has insisted upon production of a No Objection Certificate (NOC) from the 3rdrespondent. Hence, the present writ petition.
2. Heard Mr. Kaluvala Venkata Vara Prasad, learned counsel for the petitioner; Mr. N. Bhujanga Rao, learned Deputy Solicitor General of India appearing for respondent Nos. 1 and 2; and Mr. J. Prabhakar, learned Senior Counsel representing Mr. Aziz Hussain, learned counsel on record for respondent No. 3. Perused the record.
3. Learned counsel for the petitioner contended that matrimonial disputes arose between Mrs. Sara Syeda and the 3rd respondent, culminating in the latter pronouncing “Talaq” and abandoning Mrs. Sara Syeda and the petitioner. Consequently, Mrs. Sara Syeda was constrained to institute M.C. No. 146 of 2013 seeking maintenance, wherein the trial Court awarded maintenance in favour of both Mrs. Sara Syeda and the petitioner. Learned counsel submitted that the 3rdrespondent pronounced “Talaq” more than a decade ago and has failed to care for or maintain the petitioner during all these years. It was contended that Mrs. Sara Syeda has single-handedly discharged all parental responsibilities and ensured the welfare and upbringing of the child. Learned counsel further submitted that Mrs. Sara Syeda subsequently remarried a German citizen in August 2024 in accordance with Muslim Personal Law and now intends to take the petitioner to Germany for his education. Accordingly, an application for a visa was submitted before the German Consulate. Learned counsel argued that, in the facts and circumstances of the case, the insistence on a No Objection Certificate (NOC) from the 3rdrespondent for processing the petitioner’s visa application is wholly unwarranted and liable to be dispensed with. He therefore prayed for a direction to respondent No. 2 not to insist upon an NOC from the 3rdrespondent while considering the petitioner’s visa application.
4. Learned Senior Counsel appearing on behalf of the 3rdrespondent,relying upon the counter affidavit, contended that the 3rdrespondent is the natural father and legal guardian of the petitioner and that the petitioner’s mother had no authority to confer guardianship or execute a General Power of Attorney in favour of any third party. It was further contended that relocating the petitioner to Germany at the age of 15 years would not be in his best interests. Learned Senior Counsel submitted that language and cultural barriers may adversely affect the petitioner’s education and integration into society. He further contended that, although matrimonial disputes had arisen and divorce proceedings had taken place, visitation rights had been granted in favour of the 3rdrespondent by the competent Court. It was argued that there are inconsistencies in the stand taken by the petitioner’s mother and the GPA holder regarding the divorce. It was also contended that the petitioner’s mother had obtained the petitioner’s Transfer Certificate from his school on 02.04.2024, wherein the name of the father was left blank, and that during the academic year 2023–2024, the petitioner remained absent from school for 51 days. Learned Senior Counsel further submitted that the petitioner’s mother could have awaited the outcome of the visa application before relocating to Germany. He also pointed out that she had contracted a second marriage with a German citizen. Finally, it was contended that the petitioner ought to have approached the competent Family Court for appropriate relief and that this Court lacks jurisdiction to entertain the present writ petition.
5. Learned Deputy Solicitor General of India submitted that the 3rd respondent divorced Mrs. Sara Syeda, as evidenced by the Divorce Certificate dated 04.09.2018 issued by the Telangana State Waqf Board. He further submitted that the 3rd respondent had filed G.W.O.P. No. 711 of 2012 before the Family Court at Hyderabad seeking a declaration that he be recognized as the lawful permanent guardian of the petitioner and also seeking custody of the child. It was submitted that, by order dated 28.02.2014, the Family Court partly allowed the petition by granting visitation rights to the 3rdrespondent, permitting him to meet the petitioner on every third Saturday of the month at the office of the District Legal Services Authority. The prayer seeking custody of the child, however, was rejected. Learned Deputy Solicitor General further submitted that the Family Court’s order granting visitation rights until the child attains majority cannot operate as an impediment to the petitioner’s educational pursuits. He argued that the apprehensions expressed by the 3rdrespondent regarding the petitioner’s relocation to Germany, including concerns relating to language and education, are speculative and unsupported by any material on record and therefore do not merit consideration.
6. Having considered the rival submissions, this Court finds that it is undisputed that matrimonial disputes arose between Mrs. Sara Syeda and the 3rdrespondent, culminating in their divorce, as evidenced by the Divorce Certificate dated 04.09.2018 issued by the Telangana State Waqf Board. It is also a matter of record that the 3rdrespondent instituted G.W.O.P. No. 711 of 2011 seeking custody of the petitioner and a declaration of permanent guardianship. The said proceedings were partly allowed only to the extent of granting visitation rights, permitting the 3rdrespondent to meet the petitioner once every month, namely on every third Saturday, at the office of the District Legal Services Authority. The prayer for custody of the child was expressly rejected. Consequently, the custody of the petitioner has continuously remained with his mother, Mrs. Sara Syeda.
7. It is further borne out from the record that, in M.C. No. 146 of 2013, the Additional Metropolitan Sessions Judge-cum-Additional Family Court-cum-XXIII Additional Chief Judge, Hyderabad, awarded monthlymaintenance in favour of both the petitioner and his mother. These facts are not in dispute.
8. At this juncture, it is pertinent to note that the petitioner was born on 16.07.2011 and is presently about 14 years of age. The order passed in G.W.O.P. No. 711 of 2012 on 28.02.2014 was rendered nearly twelve years ago. The visitation rights granted to the 3rdrespondent cannot be invoked in a manner detrimental to the educational future prospects of the child. Although the Family Court directed that the visitation arrangement would continue until the child attains majority, the 3rdrespondent has had the benefit of the said arrangement since 2014, when the petitioner was approximately two years old.
9. The petitioner’s mother now intends to take him to Germany for the purpose of pursuing his education for his bright future. The contention of the 3rdrespondent that English is not widely spoken or taught in Germany and that the petitioner may face difficulties in adapting to a different educational system is based on mere conjecture and cannot constitute a valid ground to impede the petitioner’s educational advancement.
10. In the above circumstances, this Court is of the considered opinionthat the divorce between Mrs. Sara Syeda and the 3rdrespondent, evidenced by the Divorce Certificate dated 04.09.2018, has attained finality. Further, the order dated 28.02.2014 passed by the Family Court effectively recognized the continued custody of the petitioner with his mother by declining the prayer of the 3rdrespondent for custody, while granting him limited visitation rights.
11. The petitioner, who is presently about 14 years of age, seeks to pursue his education in Germany while residing with his mother. The educational aspirations of the petitioner cannot be jeopardized, and therefore this Court is of the considered opinion that this is a fit case to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, to direct the 1st respondent-Ministry of External Affairs to correspond with the 2nd respondent-Consulate of Germany for consideration of the petitioner’s Visa application, without insisting on NOC from the 3rd respondent.
12. Accordingly, this Court directs the 1strespondent–Ministry of External Affairs to forthwith communicate to the 2ndrespondent–Consulate General of the Federal Republic of Germany a certified copy of this Order, together with such appropriate communication as may be necessary, for its consideration while processing the Visa application of the petitioner's minor son, without being constrained by the requirement of a No Objection Certificate from the 3rdrespondent, in view of the findings recorded herein.
13. Accordingly, the writ petition is allowed, as above. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed.
