1992 PLP 520 (MLD)

1. Shehbaz Akhtar???????????????????????????????????????????????????????????????? 16‑8‑1971

2. Gulraiz Akhtar/Gulnaz Akhtar/Geeta.????????????????????????????????? 7‑11‑1972

3. Muhammad Afzal Aslam???????????????????????????????????????????????????? 25‑9‑1975

4. Muhammad Abba's Aslam??????????????????????????????????????????????????? 3‑1‑1980

5. Saleena Aslam????????????????????????????????????????????????????????? ????????????6‑8‑1982

3. All the children were born in England. According to the petitioner they are British citizens, while in reply filed by the respondent they are stated to be Pakistani citizens. They seem to have dual nationality. The former two are now admittedly more than 18 years old and so major. They are in England and are living with their mother, the petitioner. It is only the latter three namely, Muhammad Afzal Aslam, Muhammad Abbas Aslam and Saleena Aslam who are the bone of contention between the partents, in the present petition.

4. When the matrimonial life entered its autumn, the petitioner moved the County Court of Cambridge, England, in divorce Registry on 1‑8‑1983. The marriage was dissolved ex parte. It was also ordered on 1‑12‑1983 by the Court that Shehbaz Akhtar Aslam who alone was then living with the respondent (in England) when the spouses separated, be handed over to the custody and control of the petitioner forthwith. After the service of the order upon the respondent he was provided access to the children with the further direction that the five children be not removed from England and Wales without the leave of the Court. High Court of Justice in Family Division was also moved by the petitioner and on 22‑2‑1990 Muhammad Afzal Aslam, Muhammad Abbas Aslam and Saleena Aslam were taken as wards of the Hon'ble Court till their minority or until further orders. They were ordered to return to the jurisdiction of England and Wales forthwith and thereafter not to be removed without the leave of the Court. The Court also desired that the General Constable of Cambridge‑Shire Constabulary to provide the petitioner's solicitor the particulars of his criminal convictions. Force Data Production Officer provided the information that on 3‑12‑1970, the respondent had been sentenced to three years imprisonment by Lamcarter Assizes, on 14‑1‑1975 fined 1. 50 or six months by Leads Crown Court for threatening behaviour and on 18‑10‑1989 fined K 40 by Bolton Magistrate's Court for disorderly behaviour. In the written reply the respondent has explained that he was convicted to three years' imprisonment on account of a quarrel with one Mr. Bhalli, a Hindu, who was deadly against him and kept pursuading the petitioner to give up Islam and return to her home. He claimed that he was released from imprisonment after one year. He further added that petitioner's fellow‑county men so teased him that there were quarrels resulting in fine to both the parties. He was eventually forced to leave England on account of communal street riots.

5. The respondent returned to Pakistan in 1984. He visited England in 1989 and on return brought the three children to Pakistan on 30‑12‑1989 in breach and disobedience of the order of the Courts in England. The petitioner mother visited Pakistan in June, 1990. Her plea in the petition is that her companion was maltreated and she herself failed to get the custody of the children and rather on account of the behaviour of the respondent had to flee from Pakistan: On the other hand the respondent's reply is that she came over to Pakistan in June, 1990; remained with the children, even visited Murree with them. The photographs filed and the correspondence was clear proof of the fact that his behaviour with her was normal. He did not stand in her way to see, meet and roam about with the children (in Pakistan).

6. The factual aspects of the case have been detailed above. Learned counsel for the petitioner contended that the children were living with the mother in whose custody they had been given by the Courts in England, their removal from England to Pakistan was by deceitful and fraudulent means by the respondent, the removal being in breach and disobedience of the orders of the Courts in England; they were in illegal and improper custody, so the Court under section 491, Cr.P.C. may grant the custody to her. On the other hand learned counsel for the respondent asserted that sections 13 and 14, Cr.P.C. had no application in the circumstances of the matter, the orders of the Courts in England could not be enforced in Pakistan rather the operation of the Code was excluded by the provisions of section 17 9f the West Pakistan Family Courts Act, the children were living with the father and so his custody and control could not be called illegal or improper the discretionary relief under section 491, Cr.P.C. may not be granted and rather the parties be directed to avail the jurisdiction of the Guardian Court under the Guardians and Wards Act. During arguments it was also pointed out by him that actually a petition under the said Act had been filed in the competent Court at Gujrat.

7. Both the learned counsel very ably put forward their points of view and referred to precedents from the superior Courts of our own country in addition to the foreign judgments.

8. The leading judgment is McKEE v. McKEE (1951 All England Law Reports (1)). The parents in the case were the citizens of United States of America, lived there and a decree of divorce was granted to the father by the superior Court of the State of California and he was also awarded the custody of the child. Subsequently the order was varied and custody of the infant was granted to the mother. The father shifted to Ontario in Canada. The mother reached Canada and filed a habeas corpus petition. It was declined. The mother appealed but failed. However, on approaching the Supreme Court of Canada the custody was granted to her as it was considered by the Court that the removal from the U.S.A. to Ontario was to avoid obedience to the order of the competent Court in California whose jurisdiction the father himself had invoked, so could not request the Canadian Courts to retry the question of custody. The Privy Council held that in proceedings relating to custody the welfare and happiness of the infant was the paramount consideration, the order of a foreign Court (United States) was to be given due weight but such an order was only one to be taken into consideration and it was the duty of the' Canadian Court to form an independent judgment on the merits of the matter. The law in England has undergone a change in this respect after the Convention on the Civil Aspects of International Child Abduction (The HAGUE, 25 October 1980). England is a contracting party to the Convention. To give effect to the deliberations of the Convention the Child Abduction and Custody Act, 1985 has been brought on the Statute book of England.

9. C v. C (1989) 2 All ER 465 has been referred to by the learned counsel for the petitioner. It relates to the jurisdiction of Australian and England Courts. The mother was English and married an Australian in England in 1978. The couple went to live in Australia and a boy was born, within a few years the marriage broke down and divorce proceedings commenced in Australia. A consent order was made in the Australian Family Court providing for the mother to have the custody of the child. The father and mother were to remain joint guardian with the direction that neither parent was to be entitled to remove the child from Australia without the other's consent. The mother removed the child to England without the father's consent. The father applied to the High Court in England under the Child Abduction and Custody Act, 1985 for the return of the child to Australia contending that the removal from the jurisdiction of the Australian Court was wrongful removal/detention under the HAGUE Convention and the Act. The contention was accepted. The right of custody was considered to include the right of residence of the child. Full effect seems to have been given to the Articles of the Convention and the Act of 1985.

10. Another case from a non‑contracting country to the Convention was also cited from the petitioner's side. It is reported as (1990) 3 All ER

97. In this case the father had the dual nationality of England and Israel and he married an Israeli national, in Israel in 1979. They separated in 1989 after giving birth to two children. Under the Israeli law both the parents were the joint guardians of the children. In April 1990 the father came to England with the youngest child and in breach of mother's right to custody refused to return the child to her. She movee Israzli Court for interim custody. Similar petition was moved by the father in England. The Israeli Court passed an order in favour of the mother and directed the return of the child to Israel. The mother applied to the Court in England as well. It was held that where a child was wrongfully removed from a foreign jurisdiction to the United Kingdom, an English Court should not retain jurisdiction and the principle applied was `the welfare of the child'. In this respect it was accepted that it was normally in the interest of a child that he should not be abducted and the decision relating to the custody of the child by the Court in the State of his habitual residence was to prevail. The England Court, therefore, ordered the return of the abducted child to the jurisdiction of the Israeli Court. Elizabeth Dinshaw v. Arvand M. Dinshaw 1989 MLD 2209 from the Supreme Court of India has also been cited in support of this very proposition. It appears that India like Pakistan is not a contracting party to the HAGUE Convention on Child Abduction. Arvand M: Dinshaw, an Indian citizen, removed his child from U.S.A. in shady circumstances in breach of the order of custody by the Court of United States in favour of Elizabeth Dinshaw, the mother. She filed a habeas corpus petition in India. The Supreme Court allowed the same. It was held that the interest and welfare of the minor was of paramount consideration, the abduction of the child from United States by the father was illegal and Courts in all countries should see that the parent does not gain any advantage by his wrong doing.

11. From the review of the precedent cases from foreign jurisdictions, it' appears that previous to the HAGUE Convention on Child Abduction, the English Courts were according due weight and consideration to the foreign judgments but not surrendering their jurisdiction in favour of the foreign Courts, the paramount consideration was the welfare of the minor to be determined by the Engligh Courts. But after the HAGUE Convention and the Child Abduction Act the foreign judgments are being recognised and given effect‑to by the English Courts as well as by the other Courts of the above?mentioned countries, even when the foreign Court is of a non‑contracting country to the Convention.

12. The same view seems to have been adopted by an Hon'ble Judge of the Karachi High Court, however, with reservation. It is Lorraine Marie Cecile Doucet v. Aslam Muhammad Nasim and others 1991 PCr.LJ Note

62. Petitioner had been given custody of the minors by the superior Court at Montreal (Canada). The father removed the minors illegally and by deceitful means. In a petition under section 491, Cr.P.C. by the mother, the father was directed to hand over the minors to her immediately subject to the final decision of the guardianship case pending at Karachi. The case Miss Christine Brass v. Dr. Javed Iqbal (PLD 1981 Peshawar 110) (a. D.B. judgment) seems to be relevant .to the point in issue. Miss Christine Brass, a Canadian Christian' and Dr. Javed Iqbal, a Pakistani Muslim were married in Canada in 1968. In 1978 the couple alongwith the four children shifted to the State of Washington in U.S.A. where the mother instituted proceedings for divorce and custody of children. She was granted the dissolution of marriage and custody of two children. The father obtained access to all the four children and taking advantage of the same using Canadian passport, shifted the children to Pakistan. In the habeas corpus petition filed by the mother in the Court in Pakistan it was settled that under Private International Law, it is the welfare of the children that governs jurisdiction of the Court. Order of foreign Court was subject to the welfare of minors whose father being Muslim wished them to be brought up in Muslim Faith. The contention that the children were in unlawful custody of the father in Pakistan was not accepted on the ground that the father being natural guardian and residing in Pakistan, the mother being of Christian Faith and domiciled in Canada, the welfare of the minors did not demand their surrender to the mother. An hon'ble Judge of the Karachi High Court in Mrs. Grace Abdul Hadi Haqani v. Abdul Hadi Haqani and others (PLD 1961 Kar. 296) had subscribed to the same view though the case was under the Guardians and Wards Act. Abdul Hadi Haqani, the father was a Muslim and the mother a Christian, the father was convicted and agreed to the minor being brought up in Christian atmosphere yet it was held that the father had not lost the right of custody notwithstanding the child's baptism.

13. In MUssarat Jabeen v. Dr. Khalid Nawab and another 1990 PCr.LJ 686 the difference of jurisdictions under the Guardians and Wards Act and section 491, Cr.P.C. was aptly brought out. High Court has two‑fold jurisdiction under section 491 Cr.P.C. (i) to deal with a person within its Appellate Criminal jurisdiction according to the law and, (ii) to set him at liberty if he is illegally or improperly detained. Disputes as to guardianship are to be decided by the Court under the Guardians and Wards Act but in exceptional cases High Court can interfere to order restoration of custody which has been disturbed illegally or improperly. Proceedings in the habeas corpus jurisdiction are summary in nature and do not extend to the determination of disputed questions.

14. In the present case the petitioner is a resident and citizen of England. She has obtained an order of custody from the Court over there. In disobedience and breach of the same, in suspicious circumstances, the respondent, a Muslim, having the dual citizenship of Pakistan and England, shifted the children to Pakistan. He being the father, his custody cannot be called illegal under the Pakistan Law. Pakistan is a non‑contracting State to the HAGUE Convention on Child Abduction nor any parallel law to Child Abduction Act of 1985 of England is there on our statute book. So even if the removal of the children from England was improper by the father, the welfare of the minors is to be the paramount consideration as was the previous law in England and continues to be in Pakistan. The ultimate welfare of the minors is to be decided by the Guardian Court. Mooted questions are not to be handled in summary jurisdiction in a habeas corpus petition. As per the dictum laid down in Miss Christine Brass' case (PLD 1981 Pesh. 110) the custody of the minors cannot be granted to the petitioner mother entitling her to remove them from the jurisdiction of Pakistan Courts. The matter of guardianship, as informed at the bar is already pending in the concerned Court. The removal of the children being improper on the part of the respondent, giving due weight to the judgments of the Courts in England, the mother would retain the custody but only in Pakistan subject of course to the final determination of guardianship/custody by the Guardian Court. M.BA./S‑62/L?????????????????????????????????????????????????????????????????????????????????????? Order accordingly.