P L D 1980 Lahore 61 (PLP)

Again; "It has been held, however, recently that while the welfare of the infant is the chief consideration, it is not the only consideration, especially if the infant has been brought within the jurisdiction secretly or by force. In these circumstances the respect to be accorded to a previous foreign custody order, the injustice done to the parent who has been deprived of his rights in consequence of the removal of the infant to England. the difficulties arising from the fact that England may not be the forum conveniens and the danger that the infant may become rooted in England, if the proceedings have to be delayed in order to produce witnesses and other evidence from abroad, must be weighed against the possibility of any harm to the infant, if the Court refuses to reopen the case and orders the infant to be sent back. Re : H. (Infant) (1966) 1 dV L R 381 (C. A)." (1) (1966) 1 All E R 886 (C A)?? (2) (1967) 1 All E R 881

11. This new tendency is explained thus at pages 294 and 295 of the Law Relating to Children : "But recent cases show that the child's interests are not to bear the same emphasis as they would in a purely domestic case, and instances of a person removing a child from a foreign jurisdiction in defiance of an order of the foreign Court have led to some hardening of attitude in favour of the foreign order."

12. The new trend discussed in these passages was revealed in cases where some order was passed by a Court of competent jurisdiction after which the children were kidnapped and taken away to England in order to flout the above order and proceedings had to be taken for their repatriation to the country of origin. They do not throw any light on the question of interpretation of section 9 of the Guardians and Wards Act. If the dispute of custody is settled by domestic Courts, removal of the child to England for avoiding the consequences of the order or in defiance of it is disapproved by English Courts on weighing on one side the interest of the child that he will come to no harm and on the other side the aspect of public policy, the question of comity and the question of 'forum conveniens' the possibility of reconciliation of parents all of which tread to one way or the other on the ultimate welfare of the minor.

13. They do not lay down that the domestic Courts have any jurisdiction left towards implementing its order or passing any new order of custody of children beyond its jurisdiction. In all these cases proceedings had to be started by the aggrieved guardian in English Courts.

14. Rule 51 at pages 392 and 393 of the Conflict of Laws on the other hand provides for exclusive jurisdiction of the foreign Courts in such matters. It is as follows : "(1) A Court of a foreign country has jurisdiction to appoint a guardian for an infant who at the time when the proceedings were begun was a national of that country, or (semble) owed local allegiance by virtue of ordinary residence or presence there. (2) Such a foreign guardian will prima facie be recognised in England as a guardian of the infant, but can only exercise such control over the person of his ward situate in England as a foreign parent can exercise." This rule is in favour of assumption of jurisdiction by the Court of a foreign country whether the infant is a national of that country or simply owes allegiance to it by virtue of ordinary residence or even mere presence there.

15. The law of domicile affords no more protection to the aggrieved parent in this respect. While ordinary residence is a question of fact, domicile is a question of law. It is 'ordinary, residence' which provide criterion for territorial jurisdiction of the Court and not the legal concept o domicile. Even animus revertendl of intention at some remote point of time to revert to the original country of domicile will not confer jurisdiction upon the Courts of that country if the children ordinarily reside in another) place or country outside their jurisdiction.

16. Much was argued about dual citizenship or dual nationality. It was urged that United Kingdom Nationals who are nationals of any other country also cannot be protected by Her Majesty's Representative against the authorities of that country in regard to any obligation to which they are liable to that country.

17. This argument is not material. The concept of dual nationalism, dual citizenship or dual domicile may at must be extended to dual residence. But while talking of dual residence we cannot ignore that in such eventuality the residence in one country may be notional and in the other maybe real or what we call ordinary. Ordinary residence means residence in fact and not merely residence in law. Even animus resident may not be necessary because such animus cannot be formed by a mere infant or even a lunatic. By applying the rule relied upon by the learned counsel for the petitioner it cannot be inferred from dual nationality that a person should be treated simultaneously to be an `ordinary resident' of both countries within the meaning of that expression in section 9 of the Guardians and Wards Act.

18. Similarly, clauses 9 and 10 of the Letters Patent are not relevant. Clause 9 is about the transfer of cases to the original jurisdiction and clause 10 talks of the appellate jurisdiction. But they do not allow either specifically or even impliedly the High Court to pass an order in regard to matters which are not within its jurisdiction. Even the High Court cannot act unless it has territorial jurisdiction under section 9.

19. Now section 9 of the Guardians and Wards Act provides in its first subsection that "if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides". In the case of Zubaida Begum v. Ghulam Rasool it was held that this section will determine the jurisdiction of the Court on an application under section 25 of the Guardians and Wards Act also. The expression "where the minor ordinarily resides" was explained in paragraph 7 as follows; . As section 9 stands, all that is relevant is the ordinary place of the residence of the minor as no mention has been made in the section with regard to the ordinary place of the residence of the guardian. According to well-recognised canons of interpretation of statutes the words occurring in section 9 of the Guardians and Wards Act with regard to the ordinary residence of the minor have, in my opinion, to be given their due weight and violence cannot be done to the language of the section for reasons which; though they may be laudable, are not recognised by law. It is true that a minor would ordinarily reside at a place where the guardian resides, but cases can arise--and in the present cases that is the allegation -in which the minors were allowed to be taken away to a place outside the jurisdiction of the Court within the jurisdiction of which the guardian ordinarily resides. If it was with the consent of the guardian that the minors had been taken away out of the jurisdiction of the Court in which an application under section 25 was subsequently, made I do not see on what principle of law, justice, equity or good conscience, the guardian should be allowed to say that though in fact the minor is, with his consent, residing at a place which is outside the jurisdiction of the Court where the application had been put in, it should nevertheless be held that the minor was ordinarily residing within the jurisdiction of the Court." The Court then distinguished cases in which the minor was removed with the ulterior object of taking away the jurisdiction of the Court. It was observed : "As I have already said those cases in which a minor is removed with the ulterior object of taking away the jurisdiction of the Court, will stand on a different footing because if the removal is recent the Court can hold that the ordinary residence of the minor is the place from which it had been removed for an ulterior object and this is the view which was taken in Mst. Nazlr Begurn v. Ghulam Qadir A I R 1938 Lab. 313 to which I have already made a reference. It is however, clear that, because a ward should ordinarily reside at the place where the guardian resides, the initial presumption should be that the ward is ordinarily residing at the place where the guardian is, but the presumption is rebuttable and may in a suitable case be held to have been rebutted. I need hardly add that whether or not the initial presumption has been rebutted would depend on the facts and circumstances of each case and it is not possible, nor perhaps permissible, to lay ` down under what circumstances the above-mentioned initial presumption is to be taken to have been rebutted." Reliance was placed for this upon Mst. Nazir Begum v. Ghulam Qadir (1), Abdul Razzak v. Muhammad Muller (2), Annie Besant v. Narayaniah (3) and Mst. Nazir Begum v. Ghulam Qadir (4). The other case on which the learned counsel relied upon, as stated above, was Muhammad Siddique v. Aziz Bibi (5). In that case it was held that "where the application is filed soon after such removal, the place of such removal will be ignored for the purpose of determining the jurisdiction of the Court to entertain the application and in spite of such removal the minor will be deemed to have its residence at the place where it was ordinarily residing. The new place to which the minor may have gone or may have been removed, can become the ordinary residence of the minor only after the minor has settled down at that place for reasonably long period and the residence passed the stage of casual or temporary residence". It was on the basis of these authorities that the learned counsel argued that since the children have been removed by securing a passport by misrepresentation only to take them outside the country and outside the jurisdiction of the Court, such removal will not be of any benefit to the respondent and the ordinary residence of the children is the place where the petitioner is residing.

20. In Annie Besant v. Narayaniah the minor had been taken to England. A suit was filed regarding the custody which was decreed by the High Court. In appeal the Privy Council observed against the maintainabiliy of the suit and also against the jurisdiction of the Courts in India on the basis of section 9 of the Guardians and Wards Act. Similarly, in Fahimuddin Khoklusr v. Mst. Zaibunnisa (1) the children had been removed to Kuwait. It was held that the Court at Karachi had no jurisdiction over them. (1) A I R 1938 Lab. 313 ?????????? (2) P L D 1956 Kar. 454 (3) I L R 38 Mad. 807?? (4) A I R 1937 Lab. 797 ??????????? (5) P L D 1970 Lab. 596

21. The learned counsel tried to distinguish these two cases. He submitted that in the last case the children had not been taken by deceitful means. Moreover, there was no law and arrangement to enforce the order in Kuwait as there is reciprocity between Pakistan and England in this respect. Regarding the Privy Council case, the learned counsel argued that it was firstly a case of contract between the guardian and a third party allowing the removal of the children to England though that contract was later on revoked. Secondly, it was a case of a suit which was not maintainable. Thirdly, the children were grown up and were University students. It was held that it was not in the welfare of the children to send them back to India.

22. The principles that are clear from the authorities referred to above are that the cases of custody of children are maintainable in Courts within whose jurisdiction the children ordinarily reside. In a simple case of removal of the children from the place of residence of the guardian to another place the children will be deemed or presumed to be residing where they are actually living. But to cases where the removal is recent and is secured by deceitful means the principle of presumption being rebuttable is extended. According to Muhammad Siddique v. Aziz Bibi in a case of such removal the minor children will be deemed to be residing at the place of residence of their guardians unless they settled down at the place to which they have been removed.

23. The distinguishing features in the two cases pointed out by the learned counsel are not material. They do not help in interpreting the words `ordinary residence' nor the arrangement of reciprocity or treaty of extradition between two countries will be of any avail where the children do not ordinarily reside within the jurisdiction of the Court seized of the matter. It was for this reason that in Mst. Nazir Begum v. Ghulam Qadir section 9(1) was interpreted by their Lordships of the Judicial Committee, as, excluding the jurisdiction of the Indian Courts over children residing in England. In Re : P (G.,E.) (An infant) (2) it was held that the fact that the infant has a parent in England who provides a home for him, even without the consent of the other parent, provides evidence of ordinary residence in England.

24. Now in the present case the respondent had left this country in the year 1976 for permanent residence in England, had admitted the children in English Schools of that country, had applied for their custody in a County Court and according to the order shown to me by the learned counsel for the respondent which was passed by the county Court during the pendency of this petition, such an order of custody has been passed in favour of the respondent by that Court. In these circumstances, even if it is held or assumed that the children had been removed from the place of ordinary residence of the guardian to a place outside the jurisdiction of the Court, by deceitful means, it would hardly make any difference since the fact remains-and this fact is all important-that the have been removed and settled in England and are residing there. These facts are sufficient to oust the jurisdiction of Courts in this country. (1) P L D 1968 Kar. 774??????????? (2) (1965) Ch. 568 (593)

25. Moreover, their mother is a national of that country and ha apparently gone there with the intention to live permanently. She enjoys right of Hizanat over at least three younger children. The ordinary residence of the mother will determine the ordinary residence of these children.

26. Then the fact remains that all the children except the youngest all in their own rights are British citizens and have been residing in Britain since October 1976. On no count can they be held to be ordinary residents o any place in Pakistan. In these circumstances, I am of the view that the learned Guardian Judge was right in holding that be had no jurisdiction in view of section 9 and in returning the application for presentation to the competent Court.

27. The petition is dismissed leaving the parties to bear their own costs. s. A. H. ?????????? Petition dismissed.