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Official Citation: 2025 PLD 207
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-05-24
Parties: Syed Hassan Murtaza vs Mariya Bano Khan and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-05-24, officially reported as 2025 PLD 207. In this matter between Syed Hassan Murtaza and Mariya Bano Khan and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLD 2025 Lahore 207
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Syed Hassan Murtaza vs Mariya Bano Khan and others Case No.: Writ Petition No.78185/2023 Date of Judgment:2024-05-24 Reported As: 2024 LHC 6486, PLD 2025 Lahore 207 Result: Petition Disposed of
JUDGMENT
JUDGMENT Tariq Saleem Sheikh, J. - Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner seeks recovery of his minor children from the custody of their mother (Respondent No.1), who has allegedly abducted them from Canada and unlawfully brought them to Lahore, Pakistan. The factual background 2. The Petitioner and Respondent No.1 (the "Parties") are Pakistani citizens. On 15.05.2005, they married in the United Arab Emirates (UAE), and had three children, all sons, namely Zoran Syed Hassan (aged 13), Zarayb Syed Hassan (aged 10), and Zaviyar Syed Hassan (aged 8). All of them were born and raised in the UAE. The family resided in the UAE until March 2020, when Respondent No.1 went on a trip to England and was stuck there for three months due to the pandemic restrictions preventing her from returning to the UAE. During these three months, the children were in the Petitioner's care in the UAE. 3. The Petitioner was permitted to immigrate to Canada with his family in 2019. They "landed" in Canada as Permanent Residents in May 2020 but had not yet determined a timeline for a move. 4. In June 2020, the Petitioner and the three children visited relatives in New Jersey for a month while Respondent No.1 went to England. They all returned to the UAE in June/July 2020 and lived together until November 2020. In the said month, the Petitioner moved to Canada alone, obtaining residence and employment in Toronto. Respondent No.1 and the children remained in the UAE. 5. In June 2021, the Parties discussed the children visiting the Petitioner in Canada. In a text exchange, Respondent No.1 insisted that the Petitioner purchase return tickets for the children. The
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Petitioner had suggested one-way tickets to circumvent the prohibition against non-essential travel, saying he would buy the children's tickets back to UAE after they arrived. The Petitioner ended up purchasing return tickets as Respondent No.1 had requested. Respondent No.1 sent the two older children to Canada (as unaccompanied minors) to visit the Petitioner on 23.07.2021. Their return flight was on 22.08.2021. The Petitioner did not return those boys. Instead, he enrolled them in a school (Jean Lumb Public School) to start in September 2021. 6. On 19.04.2021, Respondent No.1, through her Special Attorney, Muhammad Yaqoob son of Siraj Din (Respondent No.2), filed an application under section 7 of the Guardian and Wards Act, 1890 (GWA) in the Family Court at Lahore (Guardian Case No.2571/G.C./2021) for her appointment as the guardian of the children. She inter alia asserted that she resided in Lahore and all three children were in her custody. On 13.07.2021, the Petitioner was proceeded ex parte, and the case was scheduled for the evidence of Respondent No.1. On 02.10.2021, the Family Court directed Respondent No.1 to appear in person and also produce the children. On 19.11.2021, Respondent No.2, Muhammad Yaqoob, presented three boys in the Family Court, claiming they were Zoran, Zarayb, and Zaviyar. The court photographed these children and superimposed the pictures on the Order Sheet. However, the Petitioner contends that Zoran and Zarayb were with him in Canada during this time, and that the boys produced before the Family Court were not his sons. 7. Respondent No.1 appeared before the Family Court as AW-1 and recorded her statement during the above-mentioned proceedings. She inter alia deposed that she resided in Lahore and all three children were in her custody. She submitted a copy of the decree as Mark-A to Mark-C and a Divorce Certificate dated 26.04.2021 as Mark-B. On 25.11.2021, Murtaza Ashraf Khan appeared before the Family Court as AW-2 and recorded a statement supporting Respondent No.1. The Family Court accepted the above-mentioned application of Respondent No.1 and issued her Guardian Certificate subject to the condition that she shall not take minors beyond its jurisdiction without prior permission except for occasional visits. 8. On 01.12.2021, Respondent No.1 submitted an application to the Family Court seeking permission to take the children abroad. On 06.12.2021, she produced three boys in court, asserting that they were the children she referred to in her application. The court documented this by capturing her image with the boys and pasting it on the Order Sheet. The Petitioner alleges that Zoran and Zarayab were misrepresented as they were in Canada during that time. In these proceedings, Respondent No.1 testified as AW-1 and provided her statement under oath supporting her application. Respondent No.2 (Muhammad Yaqoob) appeared as AW-2 and testified in favour of Respondent No.1. The Family Court accepted the application of Respondent No.1 through an order dated 24.12.2021, permitting her to take the minors abroad contingent upon the submission of surety bonds worth Rs.30,00,000/-. Additionally, she was obligated to produce the minors before the court whenever required. 9. On 31.01.2022, Respondent No.1 signed a permanent employment contract with Triple-M Professional Corp. in Toronto and made plans to reside with her cousin in Milton, Ontario. Shortly thereafter, she arrived in Canada with the youngest child, Zaviyar. On 05.02.2022, she went to the Petitioner's residence while he was not home and took the two older children to reside with her and the youngest child in Milton. Subsequently, Respondent No.1 registered all three children for school in Milton. They started on 14.02.2022 in Grades 6, 3 and 1, respectively. 10. In 2022, the Petitioner and Respondent No.1 applied to the Ontario Court of Justice (the "Ontario Court") for an order that the children primarily reside with them. They admitted that (a) they and the children had legal status as Permanent Residents in Canada, (b) they both had permanent employment in Toronto, and (c) the children's habitual residence was in Ontario. 11. The Petitioner filed an urgent motion in the Ontario Court, which was heard on 18.02.2022. Both parties expressed their intention to remain in Ontario with their children. Respondent No.1 clarified
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that she was not seeking recognition of Pakistan's Family Court order at the moment. Given this context, the Ontario Court determined that it needed to address only the issues of primary residence and parenting time. It directed Respondent No.1 to return the two older children to the Petitioner's care and asked the latter to re-enroll them at Jean Lumb Public School immediately. It ordered that "on a temporary, without prejudice basis," the above two older children would primarily reside with the Petitioner (father) and that the youngest child would primarily reside with Respondent No.1 (mother). The court ordered that the children would spend the first weekend of each month with the Petitioner and that Respondent No.1 would have parenting time with the three children on all the other weekends. It further directed that neither party shall change the children's school or remove them from Ontario without its permission. 12. Respondent No.1 brought the three children to Pakistan on 16.11.2023. The Petitioner filed an urgent motion in the Ontario Court, which was heard on November 20 and 21, 2023. The court directed the following actions under sections 28(1), 36(4), and 36(5) of the Children's Law Reform Act (CLRA): Firstly, the mother (Respondent No.1) was ordered to immediately return the children to their habitual residence in Toronto, Ontario, at her own expense, with the father (the Petitioner) holding all the children's passports and government-issued documents until further notice. Secondly, upon their return to Ontario, on a temporary basis, the children were to reside solely with the father, while the mother shall have liberal access at his discretion. The father was granted sole decision-making responsibility regarding the children. Thirdly, the court mandated that, upon request and receipt of the court order, Ontario police forces were obligated to locate, apprehend, and deliver the children to the father. Fourthly, the International Police Organization (INTERPOL) was asked to enforce the court's orders and ensure the children's return to their habitual residence in Toronto. 13. The Petitioner has filed this constitutional petition for the implementation of the Convention on the Civil Aspects of International Child Abduction 1980 (the "Hague Convention"). He seeks a writ of habeas corpus directing Respondent No.6 (Inspector General of Police, Punjab) to recover the children and their travel documents from the unlawful custody of Respondent No.1 and produce them before this Court. He has further prayed that the children may be handed over to him to be taken to Canada and submitted before the jurisdiction of their home court. Lastly, he has prayed that Respondent No.1 and her special attorney, Respondent No.2, be prosecuted for fraudulently obtaining custody orders despite the children being in Canada with him. The submissions 14. The Petitioner's counsel, Mr. Irfan Sadiq Tarar, Advocate, contends that the children's habitual residence is in Canada. The Ontario Court had restrained the Parties from removing the children from its jurisdiction without prior permission. Respondent No.1 violated that order and unlawfully brought the children to Lahore. According to Mr. Tarar, it amounts to international parental child abduction under the Hague Convention. Pakistan is a signatory to that Convention, so the children are liable to be repatriated to Canada forthwith. The counsel argues that the children's custody with Respondent No.1 is illegal, or at least improper, and this Court is competent to issue a writ of habeas corpus under Article 199 of the Constitution to recover them and pass orders as the Petitioner has prayed for in the present petition. 15. Advocate Ch. Akbar Ali Shad, the counsel for Respondents No. 1 & 2, contends that the Hague Convention does not apply to the present case. Pakistan and Canada are signatories to the Hague Convention, but it is not in effect between the two countries because they have not accepted each other's ascension. The Parties are Pakistani nationals, so all matters relating to the custody of the children, parental time, and visitation arrangements have to be decided by the Family Court in accordance with the GWA, under which the welfare of the minors is the paramount consideration.
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16. Mr. Shad has also objected to the maintainability of this petition. He argues that the High Court's constitutional jurisdiction for minors' recovery can be invoked in exceptional circumstances. There are none in the present case. Hence, the Family Court is the proper forum for resolving the dispute between the Parties. He further submits that Respondent No.1 applied under section 7 of the GWA, and the Family Court appointed her the children's guardian vide order dated 25.11.2021 and issued her Guardian Certificate. The Petitioner has challenged that certificate under section 12(2) CPC. Respondent No.1 has filed a reply thereto and is contesting it. The Family Court has framed issues on that application and directed the Parties to produce evidence to substantiate their respective assertions. Mr. Shad argues that the Petitioner, having elected to seek a remedy before the Family Court, is excluded under the doctrine of election of remedies to file the present constitutional petition. 17. In rebuttal, Mr. Tarar has argued that the children had all along been with the Petitioner in Canada at all material times. Respondent No.1 got the Guardian Certificate dated 25.11.2021 through deceit and fraud. Upon knowledge, the Petitioner challenged the said Guardian Certificate by filing an application under section 12(2) CPC before the Family Court which suspended its operation vide order dated 23.04.2022. The counsel contends that Respondent No.1's conduct and the manner in which she has abused the legal process constitute extraordinary circumstances. Therefore, this constitutional petition should proceed. 18. Mr. Sittar Sahil, Assistant Advocate General, adversely commented on the conduct of Respondent No.1 while referring to different documents available on the file. He states that the question as to whether Respondent No.1 played foul with the Family Court in Pakistan must be thoroughly investigated and taken to its logical end. However, Mr. Sahil also opines that the Petitioner's remedy lies with the Family Court - where the matter is already pending - and that this petition is not maintainable. The law 19. The U.N. Convention on the Rights of the Child (CRC) is the most comprehensive international instrument safeguarding children's rights across all facets of their lives. At its core lies Article 3, which asserts that the best interests of the child must be the paramount consideration in all matters concerning them. This provision obligates States to ensure the protection and well-being of children under all circumstances, serving as a fundamental principle guiding policy and practice globally. What is in the child's best interests is a matter of fact that has to be determined in light of all the relevant circumstances.[1] 20. In General Comment No.14 (2013),[2] the Committee on the Rights of the Child[3] (the "CRC Committee") has stated that the concept of "best interests of the child" has three dimensions: (a) a substantive right, (b) a fundamental interpretative legal principle, and (c) a rule of procedure. The "substantive right" entitles the child to have their best interests assessed and prioritized whenever decisions affecting them are made. This right imposes an inherent obligation on States to ensure its implementation, which can be invoked directly before a court. As a "fundamental interpretative legal principle", the concept mandates that if a legal provision is open to more than one interpretation, the construction which most effectively serves the child's best interests should be chosen, guided by the rights enshrined in the Convention and its Optional Protocols. As a "rule of procedure", it requires that whenever a decision is to be made that will affect a specific child, an identified group of children, or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child requires procedural guarantees. 21. In custody disputes, the concept of the child's best interests prioritizes the child's welfare and well-being above the parents' interests. It requires a thorough assessment of various factors,
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including their physical, emotional, and psychological welfare and their cultural, social, and educational needs. It emphasizes that subject to their age and maturity, the child's opinions and preferences should be given due consideration when determining custody arrangements, ensuring their active participation in decision-making. Furthermore, decisions must not discriminate against the child based on factors such as gender, race, or disability. Instead, they should provide a safe, stable, and nurturing environment conducive to the child's growth and long-term happiness. 22. Although the CRC touches upon various aspects of child abduction in several Articles, its treatment of this issue remains indirect and general. For example, Article 9(1) requires States Parties to ensure that children are not separated from their parents against their will, except when competent authorities, subject to judicial review, determine that such separation is necessary for their best interests. This determination may arise in cases of parental abuse or neglect or when parents live separately and decisions about the child's residence are necessary. Article 10(1) directs States Parties to handle applications for family reunification positively and promptly, without adverse consequences for the applicants or their families. Article 10(2) affirms the right of children with parents in different countries to maintain regular contact with both parents, except in exceptional circumstances. It also stresses that States Parties must respect the child and their parents' freedom to leave and enter any country, subject only to restrictions necessary for national security, public order, public health, morals, or the rights and freedoms of others, consistent with the CRC. Article 11 mandates that States Parties combat the illicit transfer and non-return of children abroad through bilateral or multilateral agreements or accession to the existing ones. Despite these provisions, the CRC lacks detailed procedural mechanisms to address child abduction comprehensively. Hence, there was a need for a supplementary international treaty. The Hague Convention, adopted on October 25, 1980, fills this void. 23. The Hague Convention seeks to prevent the unlawful removal or retention of children across international borders by their parents, thus shielding them from the harmful consequences of abduction. It aims to (a) secure the prompt return of children wrongfully removed to or retained in any Contracting State, and (b) to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States. Additionally, the Convention aims to prevent forum shopping by establishing uniform procedures for resolving abduction cases and addressing human rights concerns related to the rights of children and parents. 24. Article 38 of the Hague Convention stipulates that any State may accede to the Convention. However, the accession will have effect only as regards the relations between the acceding State and those Contracting States that have accepted the accession. Article 39 further provides that any State may, at the time of signature, ratification, acceptance, approval, or accession, declare the extension of the Convention to all territories for which it holds international responsibilities or select specific territories. In other words, when a country accedes to the Convention, it does not automatically form a partnership with all the countries that have ratified or acceded to it. Instead, countries must accept another country's accession to the Convention according to the conditions described in the Convention before a binding treaty comes into being. 25. The Hague Convention adopts a proactive and remedial approach. Its focus is not to adjudicate the merits of custody disputes but rather to address the breach of rights of custody established by law in the child's habitual residence. The underlying principle is that the most appropriate jurisdiction for custody disputes is typically the child's habitual residence before the abduction. This ensures that long-term decisions regarding their upbringing are made in the environment most familiar to them and by a court having access to the most relevant information. In Office of the Children's Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, McLachlin C.J. of the Supreme Court of Canada noted that swift return serves three purposes. Firstly, it shields against
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the detrimental consequences of wrongful removal or retention. Secondly, it discourages parents from taking the child away with the expectation of building ties in a new country that could potentially result in custody being awarded to them. Lastly, prompt return aims to expedite the assessm ent of the merits of a custody or access dispute in the child's habitual residence, thereby eliminating disputes over the appropriate jurisdiction for resolving them. 26. In re J (a child) (FC), [2005] UKHL 40, Baroness Hale of Richmond stated that the Hague Convention is motivated by the belief that resolving disputes about children's future is best done in their home countries. It aims to prevent one parent from relocating a child to gain an advantage in custody battles or to evade court orders. Rather than directly settling disputes, the Convention mandates returning the child to their home country or enforcing the original court order, with few exceptions. While this may occasionally not align with the individual child's best interests, the States that became parties to these treaties accepted this disadvantage to some individual children for the sake of the greater advantage to children in general. This arrangement deters parents from moving their children across borders without consent. Additionally, it establishes a system of reciprocal obligations among participating States, whereby those adhering to the Convention can expect similar cooperation in return. 27. Pakistan ratified the CRC on November 12, 1990,[4] and acceded to the Hague Convention on December 22, 2016.[5] In view of Article 38 of the Hague Convention referred to above, the effectiveness of the Convention is contingent upon mutual acceptance of accession among the participating countries. Therefore, courts in Pakistan must differentiate between Convention and non-Convention cases when dealing with international child abduction cases. Convention cases 28. The Hague Convention adopts a unique approach to the violation of custody rights, departing from traditional rules governing jurisdiction and the recognition of foreign judgments by introducing the principle of status quo ante.[6] According to Article 4, the Convention applies to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention ceases to apply when the child attains the age of 16 years. 29. Articles 12 and 13 of the Hague Convention deal with the conditions under which a child wrongfully removed or retained should be returned to their habitual residence. Article 12 stipulates that if a child is wrongfully removed or retained, as defined in Article 3, and legal proceedings for their return commence within one year of the occurrence, the authorities in the State where the child is situated must promptly return the child. If proceedings are initiated after one year has elapsed, the child's return can still be ordered unless it is shown that he has adjusted in his new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for their return. 30. Article 13 provides three additional grounds for the judicial or administrative authority not to order the child's return. These are: (a) the person, institution, or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that the child's return would expose them to physical or psychological harm or otherwise place them in an intolerable situation; or (c) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of their views. In considering the three grounds provided in Article 13, the interests of the child must be considered alongside the fundamental purpose of the Hague Convention, which aims to ensure that children wrongfully removed from their place of habitual residence are returned there as soon as possible.
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31. The determination of habitual residence is crucial in cases involving international child abduction because, as discussed above, it has a direct link with the question of child's welfare. Hence, it has been the subject of extensive judicial interpretation. The Court of Justice of the European Union has also considered this concept in The proceedings brought by A (Case C- 523/07)[2010] Fam 42. It held that it "must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular, the duration, regularity, conditions, and reasons for the stay on the territory of a member State and the family's move to that State, the child's nationality, the place and conditions of attendance at school, linguistic knowledge, and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the child's habitual residence, taking account of all the circumstances specific to each case." The European Court made similar observations in Mercredi v. Chaffe (Case C-497/10 PPU)[2012] Fam 22. 32. In re A (Children) (AP) [2013]…
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