2012-14 PLP 81 (GBLR)

RAJA JALAL-UD-DIN, J.

This petition has been directed against the judgment/order dated 30th May, 2013, passed by the learned single Bench of Chief Court Gilgit-Baltistan, whereby appeal bearing C.F.A. No.12 of 2013 against the judgment of the learned District/ Guardian Judge Gilgit was dismissed. The brief background of the case is that the applicant namely Dr. Shahid Iqbal and his wife Zahida Shahid Iqbal filed an application in the Court of District and Sessions Judge Gilgit Seeking issuance of guardianship certificate of a minor Atif Ali from the CEENA Health and Welfare Center Gilgit. The District Judge as well as the Chief Court Gilgit-Baltistan turned down the request of petitioners in view of the direction laid down in the judgment in a Suo Motu Case No. 12 of 2011 (2011 GBLR 373) of the apex Court of Gilgit-Baltistan. Being aggrieved the petitioners preferred their appeal with the contention that the decision of the Chief Court Gilgit-Baltistan as well as the District and Sessions Judge/Guardian Judge are ill-founded and based on the misreading of the directions laid down in the judgment of Supreme Appellate Court Gilgit-Baltistan dated 22-6-2011 The petitioners submitted that out of seven conditions laid down a few of them need interpretation and require elaboration of the true sense and spirit of the requirements. The requirements are causing confusion as the same are not being understood in its perspective. Adopting parents are running from pillar to post which is ending up in a wild goose chase. The State on the other hand represented by the Advocate General Gilgit-Baltistan, had been noticed and with his able assistance the matter was seriously thrashed out. He has also frankly opinioned that the directions and requirements laid down in the judgment of Supreme Appellate Court dated 22-6-2011, need to be looked into for interpretation as it is being misunderstood. We have gone through the matter and have also scrutinized the record of the case very carefully. In the first instance we fell that the mandatory requirements for adoption of deserted, parentless and abandoned children and their custody has been laid down by the Supreme Appellate Court Gilgit-Baltistan which is reproduced as under; (a) "In absence of specific proof to the contrary a deserted/parentless child in custody of welfare center or organization is considered a child of Muslim Faith and the custody of Muslim Child cannot be given to a non Muslim. (b) If the parents of Child are known, the consent of parents in writing with full particular and declaration of adaptation by adoptive parents before the District Judge of the concerned District. (c) If the child is deserted and is in custody of welfare organization as parentless child subject to the police verification and undertaking of the Center or organization that child was genuinely in their lawful custody which was not obtained in an illegal and unauthorized manner with declaration on oath before the District Judge of the concerned District the organization shall be responsible for legal consequences of the concealment of any material fact. (d) In case of adaptation of child from a welfare center or organization in Gilgit-Baltistan in addition to the declaration on oath, the adoptive parents whether citizen or non-citizen, must fulfill the following requirements. (i) The proof of origin and faith of child and the origin of adoptive parents with their full particulars with declaration of adoption supported by an affidavit of facts before the District Judge concerned. (ii) The verification certificate of Home Secretary Gilgit-Baltistan regarding the desertion of child and genuineness of adoptive parents and the welfare organization. (iii) The NOC of Interior Division of Government of Pakistan to be issued on the basis of verification certificate of Home Secretary, Government of Gilgit-Baltistan and verification of credentials of the adoptive parents by the Foreign Office Through High Commissioner/Consulate of Pakistan in the Country of adoptive parents. (iv) The Interior Division Government of Pakistan before issued of NOC will direct registration of child with NADRA Islamabad. (v) The adoptive parents may on the basis of above documents obtain Guardianship Certificate with permission to take the Custody of Child out of Pakistan from District and Sessions Judge, Islamabad. (vi) The NADRA Office in the country of adoptive parents shall maintain the record of registration of child. (vii) The adoptive parents shall give undertaking before the High Commission/Consulate and also NADRA Authorities in the country of which they are citizen to maintain the child as their natural child in accordance with Muslim faith and will not hand over the custody of child to any other person or take the Child to any other country without prior permission of above authorities". Before discussing the above stated guidelines, we feel that the background of the petitioners should be elaborated. The adoptive father namely Dr. Shahid Iqbal, Muslim by faith holds duel nationality of Islamic Republic of Pakistan and United States of America. The adoptive mother namely Mrs. Zahida Shahid Iqbal, Muslim by faith is a resident of Hunza belonging to a very respectable family of Gilgit-Baltistan and also a holder of dual nationality of Islamic Republic of Pakistan and United States of America. The petitioner are issueless and Muslims by faith and desirous of an adopted child. We have perused the matter thoroughly and came to the conclusion that the financial position of the petitioners is sound and they are having a flaw less background and belong to highly respected family of the area. Now going back to the above cited restrictions laid down, the Paras "A", "B" and "C" need not be discussed in detail as they mostly pertain to the faith of the deserted parentless child. Also elaborates the police verification and the undertaking by the center or organization before the District Judge Gilgit and also that the child in question has not been procured by any illegal means but only through desertion and after observing all legal as well as the required procedure. At Para "D" the concerned petitioners who want to adopt a child from a welfare organization will have to fulfill the remaining conditions as stated above. In the present case the seven conditions laid down are minutely perused and we find that the adoptive petitioners have been bound down to obtain a guardianship certificate from the District and Sessions Judge Islamabad to obtain permission and guardianship certificate if the child has to be taken out of the country. The said para "D" has confused the Guardian Judge Gilgit- Baltistan as it has been mis-comprehended. The crux and soul of the historic decision of Supreme Appellate Court Gilgit-Baltistan dated 22-6-2011 has laid down the guidelines for the adoptive parents. The said para clearly indicates that when an adopted child has to leave the country then the provision to obtain guardianship certificate from the District Judge Islamabad will be invoked, if the adoptive parents reside within Pakistan then the guardianship certificate of the Guardian Judge Gilgit shall be valid for the adopted child but if he has to leave the country then the remaining conditions will be observed strictly in accordance with guide line laid down in the aforesaid judgment. In the instant case the adoptive parents will firstly fulfill all the laid down criteria as elaborated above and then phase of a guardianship certificate from District and Sessions Judge Islamabad will follow later on, if the parents and child desire to leave the country and to stay abroad. We are of the view that the stated para "D" is constituted of the above stated fact. We have minutely perused the finding of Guardian Judge Gilgit dated 26-4-2013 and we find that the Guardian Judge has not thoroughly perused the Judgment of Supreme Appellate Court Gilgit-Baltistan dated 22-6-2011 supra the order does not disclose any specific condition of adoption which is not fulfilled or followed by the petitioners. The Guardian Judge has not appreciated the mandatory provisions which have already been fulfilled by the petitioners. The learned single Bench in chamber of Chief Court Gilgit-Baltistan has also not applied its judicious mind to the matter in hand and has not given any genuine reason for dismissing the petition in appeal and has upheld the finding of the guardian Judge erroneously. Both the learned Judge of Chief Court as well as District Judge Gilgit have not even bothered to give reasons for neither their findings nor they notice to pass self explanatory judgments. We feel that a deserted parentless child has got the full right to be adopted by genuine adoptive parents who can provide the facility of good up-bringing, good education and fruitful life. Any individual who can be in a good financial position to provide the facility to a child should be encouraged instead of creating hurdles and problems or discouragements. The institutions that take care of deserted children will also be relieved of the burden which is being shouldered by any individual. The society will also prosper if genuine sound individuals share the burden of providing home, shelter and education etc. to the needy children to make them honorable members of the society instead of keeping as deserted soul for the whole life. In the instant case, we are of the firm view that adoptive parents/petitioners are a sound parties who can give a better life compare to that of the institution they are living-in. In this view of the matter this petition is converted into appeal and same is allowed. The petitioners are issued a guardianship certificate with regard to the parentless child adopted by them. The petition is disposed of. HBT/38/GB Appeal allowed.