1. ' This application has been made by applicant Mrs. Silloo Dinshaw Khory seeking permission to take the minor, Dinshaw Adil Khory, out of Pakistan to Dharan, Saudi Arabia, for a period not exceeding two months from Mid-June 1980 to Mid-August 1980. An affidavit has been filed in support of the prayer, wherein it is stated that she as the paternal grand- mother has brought up the after the order of this Court in the main divorce case. It is stated that the minor, who is school going, has two months' leave for summer vacation. It is pertinent to note that the son of the applicant, who is the father of the minor, is employee at Dharan, and this sojourn from Pakistan will provide an opportunity to the minor to see his father and vice versa. Mr. Rustam, J. E. Kaikobad, for the applicant has given an undertaking that if any conditions are imposed for an assurance that the minor will return to Pakistan, he is prepared to abide by them.
2. ' Mr. J. H. Rahimtoola, for Mrs. Shanaz Adil Khory, the petitioner in the original case for dissolution of marriage, has filed a counter-affidavit of Furrokh Firoze Laskary to oppose the application. The said Furrokh Firoze Laskary is the father of Mrs. Shahnaz Adil Khory, the original petitioner, who is the mother of the minor. It is stated in the affidavit that there was an earlier consent order of Dorab Patel, J., (as his Lordship then was), dated 10-2-1975, restraining the removal of the minor out of Pakistan. Additionally, it is stated in the counter-affidavit that the request of the applicant is not bona fide, and Dharan is not a place, for vacation during the summer month owing to the climatic conditions. It is further stated that the conditions in the Middle East are unsettled, as it is a sensitive zone; which is subject to crisis. In paragraph 12 of the counter-affidavit, it is stated that if the hearing of this application is adjourned, the petitioner Mrs. Shahnaz, who is presently in Jakarta will arrive in Karachi personally to oppose the application. Although Furrokh Laskary has no direct interest in this matter, I will for the purpose of disposal of this application treat him as an agent of Mrs. Shahnaz. I have also heard Mr. J. H. Rahimtoola, who has opposed this application.
3. ' The divorce petition was filed by Mrs. Shahnaz in August, 1972, when the minor was a little over one year in age. The case was contested at the initial stages, and ultimately the marriage was dissolved, but in regard to the minor, a consent order was passed, which is incorporated in the decree dated 12-2-1973. By this order, the custody of the minor was given to the present applicant, Mrs. Silloo Dinshaw Khory. Paragraph (v) of the decree reads as follows:-- "The minor shall not be taken out of Pakistan without the express permission of the Court."
4. ' It seems that in December 1975, Mrs. Shahnaz Adil Khory and Furrokh Laskary suspected that the minor would be removed from Karachi for a place out side Pakistan, so that on 10-12-1975, they sought an order from this Court to restrain the applicant, Mrs. Silloo Dinshaw Khory from removing, or permitting the removal of the minor from Pakistan. This application came up for hearing on 22- 12-1975, but on that date of hearing, a consent statement was filed in Court, paragraphs 3 and 5 whereof read as follows:- "3. Mrs. Shahnaz, Col. F. F. Lashkary (retired), Adil Dinshaw Khory and Mrs. Silloo Dinshaw Khory respectively give an undertaking to this Hon'ble Court that these will not take or remove or permit the taking or removal of minor Dinshaw out of Pakistan.
5. The Hon'ble Court may direct the Registrar of the Honourable Court to send notice to the Immigration Authorities and the Immigration Police that minor Dinshaw son of Adil Khory cannot leave or be taken out of Pakistan without permission of the Honourable Court."
5. ' The parties made a joint prayer, for disposal of the application filed by Mrs. Shahnaz and Furrokh Laskary in terms of the consent statements, and the Court adopted the same as a rule ; on that the application was disposed of.
6. ' Mr. J. H. Rahimtoola has, on the basis of the terms of consent decree and the subsequent consent statement, urged before me that the parties had agreed to the minor ever remaining at Karachi, and the minor not being removed out of Pakistan. He stated that such consent order, or, decree was not liable to variation without consent. While I agree with the principle that a consent decree, or, order is not liable to variation without consent, I a clearly of the view that the consent statement, or, the consent order only binds the parties from taking action of removal of the minor on their own, and that both the consent decree as well as the terms of consent statement leave it open to the Court to pass an order in suitable circumstances for taking the minor outside Pakistan. Paragraph
(v) of the consent decree clearly states that the minor shall not be taken out of Pakistan without the express permission of the Court. Similarly, paragraph 5 of the consent statement dated 22- 12.1975 also states that the minor cannot be taken out of Pakistan without the permission of the Court. It is, therefore, clear that while the consent decree, or, the consent statement binds the parties only, this Court has the power to permit the removal of the minor in suitable circumstances.
7. ' The next question is whether the minor may be permitted to leave Pakistan. I have seen the minor, who had appeared before me. He is aged about nine years, and is studying in Class IV of the B. V. S. Parsi High School, Karachi. The minor expressed before me that he was happy with Mrs. Silloo, who was his father's mother. He also expressed the desire to go to Dharan in order to meet his father. No doubt, small children are often enthusiastic about going on trips, but still the child was sensible, and I have taken note of his wishes. The minor is to be taken out by his real paternal grandmother to a foreign country, where he will have an opportunity of seeing his father and his father will also have an opportunity of seeing the minor. This will not be detrimental to the interest of the minor, but will be conducive this well-being. The father has right to see the child and vice versa. The expenses of the trip shall also be borne by Mrs. Silloo. Mr. J. H. Rahimtool has stated that Dharan is a warm area and is hardly a place to visit in summer. This argument has not impressed me, as a good portion of the population of Pakistan live in that region. It is common knowledge that numerous air- conditioning facilities are available there.
8. ' In these circumstances, I allow the application and permit Mrs. Silloo Dinshaw Khory to take the minor out of Pakistan to Saudi Arabia from the 15th of June 1980, and she must return the minor to Pakistan before the 15th of August, 1980. She shall furnish security in the sum of Rs, 50,000 to the satisfaction of the Nazir of this Court for compliance with the terms of this order.
9. ' Before concluding, I must state that at the end of argument, Mr. J. H. Rahimtoola told me that in case the minor was permitted to be taken out by Mrs. Silloona his clients may be permitted to take the minor out of Pakistan. I had given him time until 11 O'clock of this morning to appear and make a statement in such regard, but he has not appeared.