Recovery of minor children

Father sought production of minor under Constitutional jurisdiction of High Court and to get his name placed on Exit Control List

Validity

Held, adequate powers were available with Executing Court to implement order of Family Court

In presence of remedy available under the law, i.e., Family Courts Act, 1964 and Guardians and Wards Act, 1890, High Court declined to exercise its extraordinary jurisdiction under Art.199 of the Constitution

Executing Court was fully empowered to issue directions for placing name of minor on Exit Control List if so required

Executing Court was fully empowered to execute the decree passed by the court competent jurisdiction

Father could apply to the Executing Court for redressal of his grievance and also for implementation of the decree

Constitutional petition was disposed of accordingly.

Minors were in tender age and needed constant care of mother and there could not be any substitute for a mother and that lap of mother was God's own cradle for a child

Custody of minors with their father was improper, if not illegal

High Court, as an interim measure could grant custody of minors to his/her lawful guardian even in case pending in Guardian Court

High Court directed father of minors to hand over custody of minors to their mother

Application was allowed in circumstances.

Father/applicant and mother of minor children had divorced each other, where-after they entered into a parenting agreement

Contention of father was that children's mother had moved them to a new house and denied him his visitation rights, in violation of the agreement

Contentions of mother were that present application under S.491, Cr.P.C. was incompetent as children were allowed to remain in her custody in pursuance of the Parenting Agreement, and that according to the said agreement all disputes had to be first referred to a mediator

Validity

Execution of Parenting Agreement between father and mother of minors had not been denied

Admittedly custody of children was with their mother

High Court directed that both parties should follow the Parenting Agreement and might sit together to renegotiate the Parenting Agreement keeping in view the best interest and welfare of their children; that as an interim measure the mother would allow the father to meet the children three times in a week for two hours each, and such interim measure would be valid for up to 30 days; that both parties would not remove the custody of minors from the city without any order of competent court; that father would continue to deposit monthly expenses, and that in case of failure to reach an amicable settlement outside Court within 30 days, parties would be at liberty to approach the Guardian Judge for redressal of their grievance

Application was disposed of accordingly.

Father filed habeas corpus petition contending that mother had unlawfully and in patent violation of orders of court of foreign country "A" removed the minors, and that minors were foreign nationals and could not be brought to Pakistan without his lawful permission and consent

Mother contended that judgment passed by court of foreign country "A" was passed in her absence and same was not passed on merits, and that even otherwise such judgment was not conclusive as appeal filed against the same was still pending in the apex court of foreign country "A"

Validity

Judgment passed by court of foreign country "A" was not a conclusive judgment because firstly it was not delivered on merits, and secondly appeal against said judgment was still pending in the apex court of foreign country "A"

Minors were in custody of their real mother, therefore, it could not be held that they were in illegal confinement

High Court while dealing with the petition could not assume jurisdiction of executing court of judgment passed by court of foreign country "A"

Petition was dismissed with the observation that father might approach the Guardian Judge for custody of minors.