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Official Citation: 2025 PLD 279
Court / Jurisdiction: KARACHI-HIGH-COURT-SINDH
Parties: SAREM MUHAMMAD MUKHTAR vs SADIA AQUIL AHMEDHonorable Justice Nadeem AkhtarFaisal Siddiqui,Farooq H. Naek
This judicial decision was delivered by the KARACHI-HIGH-COURT-SINDH. The matter involves proceedings between SAREM MUHAMMAD MUKHTAR and SADIA AQUIL AHMEDHonorable Justice Nadeem AkhtarFaisal Siddiqui,Farooq H. Naek, officially reported as 2025 PLD 279. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
P L D 2025 Sindh 279 Before Nadeem Akhtar, J SAREM MUHAMMAD MUKHTAR---Petitioner Versus SADIA AQUIL AHMED---Respondent C. Ps. Nos. S-2568 of 2017 and S 2589 of 2018, decided on 12th February, 2024. (a) Guardians and Wards Act (VIII of 1890)--- ----Ss. 8 & 19---Civil Procedure Code (V of 1908), O. VII, R.11---Constitution of Pakistan, Art. 199---Constitutional petition---Rejection of proceedings---Custody of minor---Ordinary place of residence of minor outside Pakistan---Jurisdiction of Court in Pakistan---Scope---Petitioner/father of minor assailed guardian proceedings before Guardian Court on the plea that ordinary place of residence of minor was abroad and not in Pakistan---Trial Court declined to reject the proceedings---Validity---At the time when dispute relating to custody of minor arose and guardian application was filed at Karachi by respondent/mother of minor, the home state/ordinary residence of minor was State of Washington, USA and not Karachi---Minor was not illegally or improperly removed or taken away from the custody of respondent at Karachi nor were the minor or parties residing or last resided at Karachi---Cause of action alleged by respondent/mother of minor had not arisen at Karachi---Guardian Court at Karachi did not have territorial jurisdiction to entertain application of respondent/ mother of minor seeking orders relating to custody of minor---High Court set aside order passed by Guardian Judge and application under O. VII, R. 11, C.P.C., filed by petitioner/father of minor was allowed---Minor could not be deprived of love, affection, care, presence and company of her father under any circumstances; and the respondent/ mother could not be the sole judge to decide when the minor should see or meet her father and grandparents and for how long or how frequently---Such right of petitioner/father and the minor, under Shariah and law in Pakistan, could not be denied or even curtailed---High Court settled schedule of meeting of petitioner/father with his daughter---Constitutional petition was allowed accordingly. Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lah. 300; Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others PLD 2012 SC 66 and Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal PLD 2005 SC 22 rel. Abid Hussain v. Rukhsana Munir and others 2020 YLR 1533; Peggy Collin v. Muhammad Ishfaque Malik PLD 2010 Lah. 48; Surya Vadanan v. State of Tamil Nadu and others (2015) 5 Supreme Court cases 450; All England Law Reports (1966) 1 All E.R. page 889; Shilpa Aghgarwal (Ms) v. Aviral Mittal and another (2010) 1 Supreme Court Cases 591; Muhammad Khalil-ur-Rehan v. Shabana Rehan and another PLD 1996 SC 633; Nisar Muhammad v. Sultan Zarin PLD 1997 SC 852; Mirjam Aberras Lehdeaho v. SHO Police Station Ghung, Lahore and others 2018 SCMR 427; Roshni Desai v. Jahanzeb Niazi PLD 2011 Lah. 423; Josip Stimac and others v. Melitta Syed Shah and others PLD 2009 Lah. 393; Mariam Khan v. Mehryar Salim and another 2008 YLR 2647; Surinder Kaur v. Harbax Singh AIR 1984 SC 1224; Elizabeth Dinshaw v. Arvand M. Dinshaw AIR 1987 SC 3; McKEE v. McKEE (1951) 1 All. E.R. 942; V. Ravi Chandran (Dr.)(2) v. Union of India and others (2010) 1 SCC 174; Faraz Alamgir v. Additional District and Sessions Judge VIII and 2 others 2017 YLR 994; Malik Gul Raiz Awan v. Mst. Asma Gul Raiz and others 2009 MLD 1274; Ejaz Naseem v. Fareeha Ahmad and others 2009 SCMR 484; Mst. Nasreen and another v. Raja Muhammad Shahid Bashir and others 2019 CLC 1213; Rafiq Ahmad v. Judge Family Court, Khanewal and another 1996 CLC 1820; Mst. Aneeta Tanveer v. Muhammad Younus and others 2010 YLR 513 and Malik Khizar Hayat Khan Tiwana and Malik Ghulam Muhammad Khan v. Mst. Zainab Begum, Ch. Aziz Ahmad Waraich, District Judge, Lahore and Qazi Muhammad Dastgir, Guardian Judge, Lahore PLD 1967 SC 402 ref. (b) Guardians and Wards Act (VIII of 1890)--- ----Ss. 8 & 19---Custody of minor---Determining factor---Welfare of minor---Parental jurisdiction of Court---Paramount consideration in cases of custody and guardianship of minors is their welfare---Welfare of minors is the sole consideration as they are not in a position to decide about their welfare and as such their welfare is decided by their parents and in their absence or in case of any dispute between them, it becomes duty of Court to make a decision regarding their welfare by exercising parental jurisdiction. Faisal Siddiqui for Petitioner. Farooq H. Naek for Respondent. Dates of hearing: 16th, 23rd, 30th September, 1st November, 16th December, 2021, 2nd June, 15th August, 2nd September, 6th October, 2022, 31st May, 2023 and 6th February, 2024. ORDER NADEEM AKHTAR, J.---Constitutional Petition No.S-2589/ 2018 has been filed by the petitioner Sarem Muhammad Mukhtar against the order passed on 10.07.2018 by the Family Judge whereby the application filed by him under Order VII, Rule 11, C.P.C. read with Sections 8 and 19 of the Guardians and Wards Act, 1890, ('G&W Act') for rejection of the respondent's G&W Application No.1462/2017 was dismissed, and the judgment dated 24.11.2018 delivered by the appellate Court in Family Appeal No.78/2018 whereby his said appeal against the aforesaid order was dismissed; and, C.P. No.S-2568/2017 has been filed by him praying that respondent No.1 therein be directed to return with the minor to the State of Washington, United States of America, and/or hand over custody of the minor to the United States Consulate in Karachi, and respondents 2 and 3 (I.G.P. Sindh and S.H.O. concerned) be directed to locate/recover/produce the minor and hand her over to the petitioner along with her passport. Since the parties, the subject matter i.e. the minor and the facts of both these petitions are common, they were heard together and are being decided through this common order. 2. Relevant facts of the case, as averred by the petitioner, are that the petitioner Sarem Muhammad Mukhtar and the respondent Sadia Aquil Ahmed got married on 07.03.2013 in Karachi whereafter they moved to the United States of America where the petitioner was permanently residing; during the course of their marriage, the parties were blessed with a daughter Ayesha Sarem Mukhtar ('minor') who was born in USA on 11.03.2016; subsequently, their marriage did not last and eventually a Divorce Deed was executed by the petitioner on 06.05.2016 and a Divorce Certificate was issued by the Arbitration Council concerned on 21.09.2016 and the 'Final Divorce Order' was passed by the Superior Court of Washington, County of King; the said Court also passed an 'Immediate Restraining Order' restraining the respondent from leaving its jurisdiction, and after finalization of the divorce, the same Court restrained the respondent from removing the minor from the State of Washington during pendency of the trial; after some litigation, the parties executed a 'Parenting Plan' dated 09.05.2017 in USA regarding the custody of the minor and visitation, travel schedule, vacations, communication, and joint decision making regarding matters pertaining to the minor; the said parenting plan was ratified by the competent Court in USA after enquiring from the parties whether the same was in the best interest of the minor to which the parties had responded under oath in the affirmative; the parties also executed a document titled 'Findings and Conclusions about a Marriage' wherein the jurisdiction relating to the minor was determined to be the State of Washington as it was the home State of the minor; while accepting and ratifying the said document, the aforesaid Court determined that the State of Washington was also the home State for the parties in addition to the minor; the respondent executed a 'Child Custody Bond' in the sum of $10,000.00; and, to ensure compliance of the Parenting Plan, the father of the respondent executed a personal guarantee in the sum of $100,000.00 that the respondent shall not remove the minor from USA. 3. The petitioner has further averred that vide Clause 12 of the Parenting Plan, the parties had agreed to get the same ratified from the relevant Court at Karachi, Pakistan, to safeguard the interest of the minor during her visitation/travel to Karachi; additionally, the parties also executed an agreement dated 09.05.2017 that the petitioner will file a Guardians and Wards Application before the competent Court at Karachi, and the Parenting Plan will be presented in the said proceedings in the shape of a compromise application so that the terms and conditions thereof could be implemented in letter and spirit during the visitation/travel of the minor to Karachi; accordingly, the petitioner filed G&W Application No.904/2017 before the Family Court at Karachi, the draft whereof was approved by the respondent and her counsel according to the petitioner; as the petitioner had to return to USA due to his professional commitments, he appointed an attorney to represent him in his aforesaid application; the respondent did not appear before the Family Court due to which the settlement/ratification of the Parenting Plan by the Family Court at Karachi could not take place; upon a motion filed by the petitioner and after hearing the parties, the learned Superior Court of Washington for King Court directed the parties to get the Parenting Plan ratified in Pakistan within thirty (30) days; such ratification could not take place due to persistent refusal by the respondent; as per the Parenting Plan, the petitioner met with the minor on 08.09.2017, kept her overnight and returned her to the respondent on 09.09.2017; an email was received by the petitioner from the counsel of the respondent informing him that the respondent had left for Pakistan along with the minor due to her father's illness; in response to the petitioner's notice dated 12.09.2017 seeking further information, the respondent's counsel informed him vide letter dated 13.09.2017 that the respondent had left USA on 09.09.2017 at 5:35 p.m.; the petitioner was shocked by this news as he had handed over the minor to the respondent on the same day i.e. 09.09.2017 around 1:00 p.m., but the respondent did not inform him that she was about to leave USA with the minor some hours later; and, thereafter, a series of letters was exchanged by learned counsel for the parties whereby the petitioner was informed that the respondent will return to USA on or before 09.10.2017. 4. The petitioner has also averred that as the respondent did not return to USA, he was constrained to file a petition before the learned Superior Court of Washington, County of King, to 'Change the Parenting Plan, Residential Schedule or Custody Order', and also sought an order for the minor to be returned to the jurisdiction of the said Court; the request of the petitioner was allowed by the said Court by directing the respondent to return the minor to the State of Washington on or before 03.11.2017, to produce her before the United States Consulate in Karachi and to hand her passport over to the petitioner which order was not complied with by the respondent; her intention to not return to USA became apparent when she listed her house in USA for sale; when this fact was brought to the notice of the said Court, it was directed by the said Court that the sale proceeds of her house should be deposited in a trust account which were to be released only upon return of the minor to the State of Washington; since the respondent had pleaded before the said Court that she could not comply with the terms and conditions of the Parenting Plan as her conditional residency had expired on 25.09.2017, an opinion was sought by the said Court from an expert in the United States Immigration Law who submitted a sworn declaration that several options were available to the respondent for her return to USA, which declaration/opinion was not challenged by the respondent; vide order dated 20.11.2017, the said Court held that the respondent had acted in bad faith by intentionally violating the Court's orders and was once again directed to return the custody of the minor to the State of Washington on or before 22.11.2017, or to arrange for a third party to do the needful if she was unable to do so, and was further directed to produce the minor to the United States Consulate in Karachi and to handover her passport to the petitioner; this order was also not complied with by the respondent and she continued to live in Karachi with the minor in violation of the Parenting Plan and the said Court's aforesaid orders without allowing the minor and the petitioner to have any communication or meeting; the respondent filed G&W Application No.1462/2017 before the Family Court at Karachi praying that the Parenting Plan be set aside, and also that the minor should not be removed from Pakistan; the petitioner filed an application under Order VII, Rule 11, C.P.C. read with Sections 8 and 19 of the G&W Act for rejection of the respondent's aforesaid G&W Application which was dismissed; and, Family Appeal No.78/2018 filed by him against the dismissal of his said application was also dismissed. In this backdrop, the present petitions have been filed by the petitioners with the prayers noted above. 5. In her counter affidavits filed in response to the subject petitions, the respondent has challenged their maintainability, inter alia, on the ground that the petitioner had already invoked the jurisdiction of the Family Court in Karachi by filing G&W Application No.904/2017 and since he had an alternate remedy under the law, his C.P. No.S-2589/ 2018 (against the orders of the learned Courts below) is not maintainable on this ground and also on the ground that the same is barred under the doctrine of res-subjudice and res-judicata; and, C.P. No.S-2568/2017 (Habeas Corpus) is not maintainable as the minor has not been forcibly or illegally removed from her permanent residence by the respondent, and the respondent, being the real mother of the minor, is entitled to have her custody and to bring her to Pakistan. In addition to the above, the respondent has alleged that both these petitions have been filed by the petitioner to harass, humiliate, pressurize and blackmail her; both the parties as well as the minor are citizens of Pakistan, therefore, only the competent Court in Karachi has the jurisdiction in respect of the minor; the respondent and the minor cannot be compelled to leave the territory of Pakistan and/or to go to the State of Washington without their consent; the marriage between the parties was dissolved due to inappropriate and abusive behaviour of the petitioner; the ex-parte orders restraining the respondent and the minor from leaving the State of Washington were obtained by the petitioner from the Court in Washington through misrepresentation; the respondent was made to sign the parenting plan under duress and coercion; as the parenting plan provides for unlawful and illegal restrictions on the respondent in relation to the custody of the minor, the same is un-Islamic and unlawful; the respondent does not wish to bring up the minor against Islamic values in the western society and she also does not want to disassociate the minor from her maternal side of the family and their family values; by seeking a personal guarantee of US$100,000 from the respondent's father and a personal bond from the respondent, the petitioner has waived/relinquished his right to custody of the minor under the illegal parenting plan; the G&W application filed by the respondent in Karachi was maintainable as, according to the petitioner himself, the parties had agreed to get the parenting plan ratified from the Court in Karachi; the petitioner is estopped from challenging the maintainability of the G&W application filed by the respondent as he had also filed a G&W application for rectification of the parenting plan; the G&W application filed by the petitioner was dismissed on 15.08.2018 for non-prosecution where after he filed a restoration application which was allowed, however, he withdrew his said G&W application on 29.10.2018; the subsequent orders passed by the Court in Washington for production of the minor before the Consulate of USA in Karachi and then to produce her before the Court in Washington and to handover her custody and passport to the petitioner were obtained by the petitioner ex-parte and through misrepresentation; the petitioner is mentally unfit to have the custody of the minor or to take care of her; and, the impugned orders of the Family Court and Appellate Court are fully justified and do not require any interference by this Court. 6. It is contended by Mr. Faisal Siddiqui, learned counsel for the petitioner, that the purpose for executing the parenting plan by the parties was to settle the dispute regarding the custody of the minor, permanent rights of the parties and the minor and to regulate her visitation. Highlighting the salient feature of the parenting plan, he pointed out that the respondent was appointed as the custodian of the minor with the condition that her said appointment will not change or waive the parenting rights under the laws of either country and both the parties were to remain as the legal parents and guardians of the minor; parenting time in terms of school schedule, summer schedule and holiday schedule was specifically agreed by the parties; the respondent had agreed to inform the petitioner in advance in case of any relocation or movement of the minor, to which the petitioner had the right to object, and in case of breach of this condition, the respondent was to be liable to contempt of Court; in case of travel to Pakistan by the respondent during vacations, the petitioner was entitled to have residential time pursuant to the residential schedule provided in the parenting plan; it was agreed that the minor shall not go anywhere for more than thirty (30) days without seeing one or the other parent at any given time; the minor, who was born in USA, shall have and retain a US passport; when the minor was in Karachi, she was to be allowed to visit her paternal grandparents as per the schedule agreed in the parenting plan; neither party was allowed to refuse or delay the visitation of the minor allowed to the other parent as per the agreed schedule; telephonic and media communication with the minor was provided in the parenting plan; the jurisdiction in this matter was to remain with the King County, Superior Court of Washington, as long as one of the parties was residing in Washington; the jurisdiction for enforcement of the parenting plan was also vested in the competent Court in Pakistan; the parenting plan, signed by the Judge of the Superior Court of Washington, King County, was to be deemed to be the order of the said Court; and, the parenting plan was to be enforced in Courts with the laws of other countries pursuant to The Hague Convention on the Civil Aspects of International Child Abduction. 7. It is further contended by Mr. Faisal Siddiqui that the respondent not only executed the parenting plan after agreeing to the terms and conditions stipulated therein, but also submitted to the jurisdiction of the learned Court in Washington; and, in view of this admitted position she is estopped from questioning or challenging the parenting plan and/or the terms and conditions stipulated therein. It is also contended by him that by removing the minor from the jurisdiction of the said Court in Washington and bringing her to Karachi illegally, secretly and without the consent and/or knowledge of the petitioner, she deliberately and wilfully violated the terms and conditions of the parenting plan and the orders passed by the learned Court in Washington. He pointed out that in the contempt application filed by the petitioner, the learned Court in Washington held that the respondent had acted in bad faith. It is submitted by the learned counsel that it is well-settled that when the matter of custody of a child has already been decided by a foreign Court, the principle of judicial comity has to be kept in mind and applied as Pakistan is a responsible State and is a part of a civilised community of Nations; if sanctity is attached to the orders and judgments passed by the Courts in Pakistan, the same legal status, sanctity and respect should be conferred and given to the orders passed by the Courts of foreign jurisdiction when such orders have been passed in the proper exercise of jurisdiction, especially when the delinquent party had surrendered to the jurisdiction of that foreign Court; and, the orders passed by the foreign Courts are applicable and enforceable in Pakistan. In support of this submission, learned counsel placed reliance on Louise Anne Fairley v. Sajjad Ahmed Rana (PLD 2007 Lah. 300), Abid Hussain v. Rukhsana Munir and others (2020 YLR 1533), Peggy Collin v. Muhammad Ishfaque Malik (PLD 2010 Lah. 48), Surya Vadanan v. State of Tamil Nadu and others [(2015) 5 Supreme Court cases 450], All England Law Reports [(1966) 1 All E.R. page 889] and Shilpa Aghgarwal (Ms) v. Aviral Mittal and another [(2010) 1 Supreme Court Cases 591]. 8. Justifying the filing of Habeas Corpus Petition No.2568/2017, Mr. Faisal Siddiqui submitted that the law is well-established that the writ of Habeas Corpus can be sought in appropriate cases where the minor has been illegally removed from the lawful custody of another person; the jurisdiction of High Court in such cases is not barred under Section 491, Cr.P.C. on account of provisions of the G&W Act; availability of another legal remedy is not a bar in such cases; the remedy under the G&W Act for obtaining custody of the minor child is not a valid ground for refusing an application for Habeas Corpus filed by the parent or guardian of a minor who is entitled to his or her custody where the minor is in illegal detention of another person; the Guardian/Family Court is the final arbiter to adjudicate the question of custody of children, however, where a parent holding lawful custody of a minor has been deprived of such custody, such parent cannot be deprived of a remedy to regain the custody while the matter is subjudice before a Guardian Court; in exceptional circumstances where the High Court finds that the best interest or welfare of a minor demands that his/her custody be immediately restored to the person who was lawfully holding such custody before being deprived of the same, High Court is not denuded of jurisdiction to pass appropriate orders under Section 491 Cr.P.C. directing that custody be restored to that person as an interim measure pending final decision of the Guardian Court; the two provisions of law viz. Section 491, Cr.P.C. and Section 25 of the G&W Act deal with two different situations, as such the question of ouster of jurisdiction of High Court on account of provision of Section 12 or 25 of the G&W Act or pendency of proceedings under the said provisions does not arise; there is no overlap between the aforesaid two provisions as both are meant to cater to different situations i.e. the first to cater to an emergent situation, while the later for a long term decision regarding the question relating to guardianship of minors keeping in view factors such as their best interest and welfare. In support his above submissions, learned counsel relied upon Muhammad Khalil-ur-Rehan v. Shabana Rehan and another (PLD 1996 SC 633), Nisar Muhammad v. Sultan Zarin (PLD 1997 SC 852), Mirjam Aberras Lehdeaho v. SHO Police Station Ghung, Lahore and others (2018 SCMR 427), Roshni Desai v. Jahanzeb Niazi (PLD 2011 Lah. 423), Josip Stimac and others v. Melitta Syed Shah and others (PLD 2009 Lah. 393), Mariam Khan v. Mehryar Salim and another (2008 YLR 2647), Surinder Kaur v. Harbax Singh (AIR 1984 SC 1224), Elizabeth Dinshaw v. Arvand M. Dinshaw (AIR 1987 SC 3), McKEE v. McKEE [(1951) 1 All. E.R. 942] and V. Ravi Chandran (Dr.)(2) v. Union of India and others [(2010) 1 SCC 174]. 9. Regarding the maintainability of C.P. No.2589/2018, it was submitted by learned counsel for the petitioner that the Guardian Judge at Karachi did not have the jurisdiction in respect thereof, and therefore, that application filed by the petitioner for rejecting it was fully competent and maintainable in law as well as on facts, and as such the same was wrongly rejected by the learned Courts below. In support his above submissions, learned counsel relied upon Faraz Alamgir v. Additional District and Sessions Judge VIII and 2 others (2017 YLR 994), Malik Gul Raiz Awan v. Mst. Asma Gul Raiz and others (2009 MLD 1274), Ejaz Naseem v. Fareeha Ahmad and others (2009 SCMR 484) and Mst. Nasreen and another v. Raja Muhammad Shahid Bashir and others (2019 CLC 1213). 10. In his reply, it was contended by Mr. Farooq H. Naek, learned counsel for the respondent, that the learned Courts below have been and this Court is being misled by the petitioner regarding the ordinary residence of the minor which is Karachi,…
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