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Petitioner: Sumayyah Moses VS Respondent: SHO & 3 others
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Sumayyah Moses vs SHO & 3 others Case No.: Writ Petition No. 74048 of 2019 Date of Judgment:2020-04-21 Reported As: PLD 2020 Lahore 716, 2020 LHC 1172 Result: Petition disposed off
JUDGMENT
JUDGMENT TARIQ SALEEM SHEIKH, J. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner seeks recovery of her two minor sons, Abdul Hannan Moses and Arshman Rizwan, from the alleged illega l custody of Respondent No.3, her husband, so that she may take them back to South Africa. Facts 2. Brief facts of the case are that the Petitioner is a South African national and a Muslim by faith. She met Respondent No.3 who hailed from Samundari, District Faisalabad, and had gone to South Africa to earn livelihood. On 23.7.2010 they got married and out of the wedlock two boys, Abdul Hannan Moses and Arshman Rizwan, were born on 13.4.201 1 and 17.6.2014 respect ively. According to the Petitioner , they lived together in South Africa and in 2016 came to Pakistan along with the children to visit the family of Respondent No.3. When their scheduled vacation ended Respondent No.3 sent her back but himself stayed behind with the children on the pretext that his father was ill. He promised to follow her as soon as he got better . The Petitioner returned to South Africa without suspecting that it was a clever ruse to snatch the children. She could not immediately travel to Pakistan again because of her job commitments and ailing mother . However , she kept urging Respondent No.3 to come back or at least return the children but he did not pay heed to her. In April 2019, she came to Pakistan but Respondent No.3 did not welcome her (although their marriage was and still is intact) and instead maltreated her. She had no option but to go back. Under her instructions her lawyer filed Writ Petition No.56094/2019 in this Court for recovery of the boys but that could not proceed because she had flown back. Accordingly , that petition was disposed of vide order dated 30.9.2019. The Petitioner has come to Pakistan again and filed this second petition for the same relief. On 1.8.2019 she instituted proceedings against Respondent No.3 in the Childrens? Court at Worcester , South Africa, for custody of the boys which are still pending. Meanwhile, on 13.5.2019 Respondent No.3 filed an application
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under Section 7 of the Guardian & Wards Act, 1890, in the Guardian Court at Samundari in which the Petitioner was proceeded ex-parte and he was appointed guardian of the person of the minors vide order dated 30.10.2019. In pursuance thereof Guardianship Certificate was issued to him on 17.12.2019. Submissions of the learned counsel 3. The learned counsel for the Petitioner , Pir Abdul Wahid, Advocate, contended that Abdul Hannan and Arshman Rizwan were South African nationals and habitual residents of Worcester . Resp ondent No.3 deceitfully brought them to Pakistan and deprived the Petitioner of her parental rights. He maintained that the custody of the children with Respondent No.3 was illegal and improper . The learned counsel further contended that the children were of tender age and needed the support and care of the Petitioner . It was in their best interest that they should be repatriated to South Africa. The Petitione r had instituted proceedings in the Childrens' Court at Worchester which were still pending. If Respondent No.3 wanted the custody of the boys he could go and contest them. As regards the Guardianship Certificate dated 17.12.2019, the learned counsel submitted that it was without jurisdiction. The Guardian Court at Samundari was not competent to appoint the guardian of Abdul Hannan and Arshman Rizwan as they were citizens of South Africa. Even otherwise, the said certificate had no legal sanctity as Respondent No.3 had procured it at the Petitioner's back. He dishonestly gave her wrong address to the Court and manoeuvred to keep her out of the proceedings. 4. Mr. Zaman Khan Vardag, Additional Advocate General, raised an objection that this constitutional petition was not maintainable as the Petitioner had an alternate and ef ficacious remedy before the Guardian Court. 5. Mr. Zubair Afzal Rana, Advocate, who represented Respondent No.3, also oppo sed this petition. He contended that the Petitioner had distorted the facts and attempted to mislead this Court. He maintained that the family had their home in South Africa. In 2016 they decided to permanently shift to Pakistan and came here. After some time the Petitioner's mother got ill so she went back but did not return and instead filed this petition. The learned counsel insisted that it was not a case of child snatching. He further submitted that Abdul Hannan and Arshman Rizwan were Pakistani citizens by descent as provided by Section 5 of the Citizenship Act, 1951. The Guardian Court at Samundari was competent to entertain the application of Respondent No.3 and had rightly appointed him as guardian of their person. Guardianship Certificate dated 17.12.2019 held the field and the Petitioner had not challenged it todate. He denied the allegation that Respondent No.3 had used chicanery to procure it and added that till such time it was quashed/set aside through due process this Court could not intervene while exercising constitutional jurisdiction. 6. The learned amicus curiae , Mr. Muhammad Shahzad Shaukat, Advocate, submitted that in custody matter s welfare of the child was of paramount consideration. His best interests were normally secured by having his future determined in the jurisdiction of his habitual residence. The instant case, however , had some peculiarities. Abdul Hannan and Arshman Rizwan came to Pakistan in 2016 and were here for more than 31/2 years. The said period was long enough for them to develop roots. There was, prima facie , evidence that the Petitioner acquiesced in their settling in this country . Therefore, an elaborate inquiry was required to determine as to what would serve their best interests. The matter could not be decided in these habeas corpus proceedings which were summary in nature. The learned amicus curiae urged that the Petitioner should be directed to seek her remedies before the Guardian Court which was competent to decide all questions of law and fact. He further subm itted that the Guardian Court at Samundari had appointed Respondent No.3 as the guardian of the children which was in the Petitioner's knowledge but she had not challenged that order . For that reason as well she shou ld be asked to have recourse to that forum. 7. Arguments heard. Record perused. 8. In today's world an increasingly large number of people leave their homelands to look for opportunities abroad and some of them also get married there. In many cases incompatibility of temperament, diversity of backgrounds and inability to accept the new lifestyle lead to matrimonial discord that forces one or the other party to have legal recourse. Disputes also arise about the custody of the children born out of the union and they are also pulled into the battle. At times one of the parties may return to the country of his or her origin for family support, shelter or stability . Unresolved disputes in such situations lead to legal proceedings in the country of origin as well as in the
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adoptive country which give rise to conflict of laws and jurisdictions. The instant case happens to be one of those cases. The law and jurisprudence 9. The law relating to international child abduction has mostly developed around litigation relating to enforcement of custody-related orders in foreign jurisdictions. However , there is significant divergen ce in judicial decisions because of differing personal laws of parents and sometimes even the (domestic) statutory law. English courts focused on the welfare and happiness of the child and considered it to be of paramount import ance in questions relating to his custody . In Re B' s Settlement, (1940) Ch 54, Morton J. said: "In my view, under s. 1 of the Guardianship of Infants Act, 1925, I am bound to consider first the welfare of the infant, and to treat his welfare as being the paramount consideration. In so doing, I ought to give the weight to any views formed by the courts of the country whereof the infant is a national. But I desire to say quite plainly that in my view this court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the courts of any other country ." 10. The above dictum was expressly approved by the Privy Council in McKee v. McKee , (1951) AC 352. Lord Simonds held that in custody proceedings welfare of the minor is always the paramount consideration and the order of a foreign court is only one of the facts which should be considered in this regard. The court in whose jurisdiction the child is removed is bound to form an independent judgment on the merits of the case. He said: "It is the law of Ontario (as it is the law of England) that the welfare and happiness of the infant is the paramount consideration in questions of custody . To this paramount consideration all others yield. The order of a foreign court of competent jurisdiction is no exception...Comity demands, not its enforcement, but its grave consideration. This distinction, which has been recognized in the courts of England and Scotland...rests on the peculiar character of jurisdiction and on the fact that an order providing for the custody of an infant cannot in its nature be final." 11. In Re H (Infants), (1966) 1 All ER 886, which involved abduction of two American boys to England, the Court of Appeal held that unauthorized removal of children from one country to another was against their welfare. As such, the courts in all countries are obligated to discourage it. Willmer L.J. approvingly quoted the following excerpt from the judgment of Cross, J., the trial judge: "The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing....The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency . This substitu tion of self-help for due process of law in this field can only harm the interests of wards generally , and a judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child." 12. In Re L (Minors) (Wardship: jurisdiction), 1974 (1) All ER 913 (CA) , the Court of Appeal held that the principle that welfare of the child was the first and paramount consideration applied to kidnapping cases as well. Removal of the child from his country , society and culture impacts him so immediate steps should be taken to relieve his pain. To this end, his prompt return to the native country would serve his best interests. The court should take into account the conduct of the pecc ant parent while deciding the matter but it must not penalize the child for it. The Court of Appeal said: "To take a child from his native land, to remove him to another country where, may be, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts (offered here as examples and of course not as a complete catalogue of possible relevant factors), which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country , the judge, may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be incompatible with achievin g this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spent in his country the period must necessarily elapse before all the evidence can be1
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assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child?s own life. Such roots can grow rapidly. An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the courts of that country may well be regarded as being in the best interests of the child." 13. The above-mentioned statement was reiterated in Re R (Minors) (Wardship: Jurisdiction) [(1981) 2 FLR 416 (CA)] . Ormrod LJ said: "It follows that the strength of an application for a summary order for the return of the child to the country from which it has been removed, must rest, not on the so-called "kidnapping" of the child, or an order of a foreign court, but on the assessment of the best interests of the child. Both, or either , are relevan t considerations, but the weight to be given to either of them must be measured in terms of the interests of the child, not in terms of penalizing the "kidnapper?, or of comity , or any other abstraction. "Kidnapping?, like other kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to the prompt return of the child to his or her own country , but not the sacrifice of the child's welfare to some other principle of law ." 14. Re R (Minors) (Wardship: Jurisdiction), (1981) 2 FLR 416 (CA) , supra, also authoritatively held that the concept of forum conveniens has no place in wardship jurisdiction. 15. The Indian courts have applied the Guardian and Wards Act, 1890 (India), and the Hindu Minority and Guardianship Act, 1956, to disputes involving custody and guardianship of minors born or residing abroad. "However , the conceptual rationale explaining the judicial opinion - best interests of the child, return to the habitual residence, and welfare of the child - has focused on factual determination rather than on development of any theoretical constructs. While there have been references to foreign court opinions in a few cases and stray allusions to conceptual strands of private international law, it does not follow that such references indicate that Indian courts borrowed any theoretical constructs to develop a pattern in handling these disputes, nor has there been an attempt to develop an indigenous one." In Smt. Surindar Kaur Sandhu v. Harbax Singh Sandhu & Another (AIR 1984 SC 1224) soon after their marriage in India the couple left for England where a boy was born to them. Their relationship came under a strain and the husband negotiated with a hitman to have the wife run over by a car. He was arrested and convicted by an English court and sentenced to three years' imprisonment. The wife obtained an order for probation but he abused the favour and fled to India with the boy as soon as his probation completed. On a motion by the wife the High Court of Justice (Family Division) in England directed the husband to deliver the minor's custody to the lady. The wife came to India and instituted a habeas corpus petition in the High Court for his recovery which was dismissed. The Supreme Court of India set aside that order holding that "the modern theory of conflict of laws recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Ordinarily , jurisdiction must follow the functional lines. In matters relating to matrimony and custody , the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of the marriage." The Supreme Court ruled that since the parties had their matrimonial house in England, it established sufficient ties with that country and it was just and proper that the matter should be left to the courts there. 16. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another (AIR 1987 SC 3 = 1989 MLD 2009) an Indian father and American mother divorced. A competent court in the United States entrusted the custody of their minor son, Dustan, to the mother and gave week-end visitation rights to the father who took advantage thereof and abducted him to India. On the habeas corpus petition of the mother the Supreme Court of India held that the court should decide the question of custody "not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor ." The Supreme Court noticed that Dustan had not developed roots in India and was still "accustomed and acclimatized to the conditions and environment obtaining in the place of his origin, the United States." Therefore, his welfare required that he should be handed over to his mother . It added that the boy was in India as a result of abduction and the father who had committed that illegal act could not claim any advantage. It endorsed the dictum laid in Re H (Infants), (1966) 1 All2
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ER 886, supra, that it was the duty of the courts in countries all over the world to see that a person doing wrong by removing a child from his country does not gain any advantage of his wrongdoing. 17. In Dhanwanti Joshi v. Madhav Unde [1998 (1) SCC 112] the couple lived with the respondent in USA for 10 months after their marriage and had a male child. Due to certain compelling circumstances the appellant (mother) left the respondent (father) when the child was only 35 days old and also took him with her. Thereafter they remained involved in civil and criminal litigation in both USA and India for 14 years. The respondent filed for divorce in USA and also sought custody of the child. In the meanwhile, the appellant and the child came to India and the U.S. Court passed an ex-parte order granting permanent custody of the child to the respondent. One of the questions that fell for consideration before the Supreme Court of India was whether the bringing of the child to India by the appellant contrary to the order of the U.S. Court would have bearing on the decision of the courts in India in deciding the question of custody of the child and what would be the effect of his 12-year- long residence in the country . The Supreme Court observed that in Elizabeth Dinshaw's case the child was sent back to USA to the mother not only on the principle of comity but also because on facts such an order was in his interest. It also distinguished that case on the ground that the mother moved the application in India for custody within six months of his removal by the father . The Supreme Court held that in certain circumstanc es the courts of the country to which the minor is taken may be required to conduct an elaborate inquiry to determine the question of his welfare. It added that "summary jurisdiction is exercised only if the court to which the child had been removed is moved promptly and quickly , for in that event, the Judge may well be persuaded to hold that it would be better for the child that the merits of the case are investigated in a court in his native country , on the expectation that an early decision there would be in the interest of the child before he develops roots in the country to which he had been removed. So also the conduct of an elaborate inquiry may depend upon the time that had elapsed between the removal of the child and the institution of the proceedings for custody . This would mean that longer the time gap, the lesser the inclination of the court to go for a summary inquiry ." The court rejected the prayer for returning the child to the USA. 18. In Surya Vadanan v. State of Tamilnadu & others (AIR 2015 SC 2243) the mother brought the child to India in violation of the order passed by a U.S. Court. She did not return the child to the jurisdiction of that court so it issued bailable warrants for her arrest. Meanwhile, the father initiated proceedings in the Andhra Pradesh High Court for a writ of habeas corpus seeking production and custody of child to enable him to take the child to USA. The High Court passed quite a few mater ial orders on that petition which were assailed before the Supreme Court of India. The apex Court ruled that there was no cavil that the best interests and welfare of the child were of paramount consideration but that was the final goal - it was not the beginning of the exercise but the end. It held that the "doctrines of most intimate contact? and "closest concern? must be given due deference. It is not appropriate that a domestic court having much less intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child. A foreign court having the most intimate contact and the closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up rather than a domestic court." The Supreme Court further held that the principle of "comity of courts" is essentially a principle of self-re straint and is applicable when a foreign court is seized of the issue of the custody of a child prior to the domestic court. There may be a situation where the foreign court though seized of the issue does not pass any effective or substantial order or direction. In that event, if the domestic court were to pass an effective or substantial order or direction prior in point of time then the foreign court ought to exercise self-restraint and respect the direction or order of the domestic court (or vice versa ), unless there are very good reasons not to do so. The Supreme Court outlined the following principles for deciding international abduction cases: "(1) The welfare of the child is the paramount consideration. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of a child is not enough for the courts in this country to shut out an independent consideration of the matter . The principle of comity of courts simply demands consideration of an order passed by a foreign court and not necessarily its enforcement. Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 1 12.
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(2) One of the factors to be considered whether a domestic court should hold a summary inquiry or an elaborate inquiry for repatriating the child to the jurisdiction of the foreign court is the time gap in moving the domestic court for repatriation. The longer the time gap, the lesser the inclination of the domestic courts to go in for a summary inquiry . Dhanwanti Joshi v . Madhav Unde (1998) 1 SCC 1 12. (3) An order of a foreign court is one of the factors to be considered for the repatriation of a child to the jurisdiction of the foreign court. But that will not override the consideration of welfare of the child. Therefore, even where the removal of a child from the jurisdiction of the foreign court goes against the orders of that foreign court, giving custody of the child to the parent who approached the foreign court would not be warranted if it were not in the welfare of the child. Sarita Sharma v . Sushil Sharma AIR 2000 SC 1019 . (4) Where a child has been removed from the jurisdiction of a foreign court in contravention of an order passed by that foreign court where the parties had set up their matrimonial home, the domestic court must consider whether to conduct an elaborate or summary inquiry on the question of custody of the child. If an elaborate inquiry is to be held, the domestic court may give due weight to the order of the foreign court depending upon the facts and circumstances in which such an order has been passed. V. Ravi Chandran and Aviral Mittal AIR 2010 SC (Supp.) 257 . (5) Since the interest and welfare of the child is paramount, a domestic court is entitled and indeed duty-bound to examine the matter independently , taking the foreign judgment, if any , only as an input for its final adjudication." 19. In the above-mentioned case the Supreme Court of India further ruled that if an order of a foreign court is in the field the domestic court would…
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