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Petitioner: LOUISE ANNE FAIRLEY VS Respondent: SAJJAD AHMED RANA
Court Name: Lahore High Court Judge(s): Mian Saqib Nisar Title: LOUISE ANNE FAIRLEY vs SAJJAD AHMED RANA Case No.: Writ Petition No,9730 of 2006 Date of Judgment:2006-11-29 Reported As: PLD 2007 Lahore 300 Result: Petition allowed
JUDGMENT
JUDGMENT ' MIAN SAQIB NISAR, J.---This petition was allowed through a separate short order of even date and the reasons given therein, may be read as an integral part of this detailed judgment. 2. The petitioner is the mother of Misbah Ahmed Rana (minor), whereas, respondents Nos. 1 and 2, are father and sister of the minor respectively. According to the petitioner's case, the minor was allegedly abducted by respondents Nos. 1 and 2, (hereinafter referred to as the respondents), from her care and custody illegally and improperly and brought from Scotland to Pakistan by dodging and deceiving the Law Enforcing Agencies in the Scotland and in clear violation of the order of the Scottish Court in favour of the petitioner. 3. Brief facts of the case are, that the petitioner, a born British National and respondent No, 1, a Pakistani citizen by birth, who had migrated and settled in U.K., got married in Glasgow on 22-1-1986 as on account of this marriage four children were born in Glasgow and are British Nationals by birth. Respondent No,1, also has acquired the British Nationality. Misbah Ahmed Rana was born on 16-7-1994; the petitioner and respondent No,1, were divorced by Blackburn Country Court on 18-10- 2001. It is the petitioner's case that after the divorce, respondent No,1, continued to live at former matrimonial home of the parties at 19 Moss, Street Blackburn, Lancashire BBI 5 HW. The children also lived there and attended local School at Blackburn and the parents enjoyed their joint custody . It is stated in paragraph No,4 of the petition that respondent No,1 has promised that if the petitioner did not seek orders in respect of the children from the Court, he would allow her regular weekend and holiday access but he reneged on the promise and without consulting the petitioner or obtaining her consent, removed three youngest children from Scotland to Pakistan and occasionally allowed the children to speak to the petitioner on telephone.
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' Anyhow, when the minor children were present in Scotland in June, 2005, they were living with the petitioner and since respondent No,1, had previously removed them from Scotland without the consent of the petitioner, therefore, she was apprehensive that he may not do so again and forcibly take the children to Pakistan, thus in these circumstances, the petitioner filed a petition in the Court of Sessions Scotland and prayed for protection of interdict and ad interim interdict orders as follows:-- (i) It being in the interest of the said children that a residence order providing that they live with the pursuer should be made and it being better for them that such order be made, decree should be granted as first concluded for. (ii) The pursuer being reasonably apprehensive, in the circumstances condescended upon, that the defender shall attempt to remove the said children from her care and control or out with the jurisdiction of the Court, is entitled to the protection of the Court and to an order for interdict as second concluded for. (iii) In these circumstances and having regard to the balance of convenience an interim order should be granted as first concluded for. (iv) In the circumstances and having regard to the balance of convenience, interim interdict should be granted as second concluded for. (Copy of the petition has been filed along with the petition as Annexure-C). 4. The Lord Ordinary of Court of Sessions in Scotland was pleased to pass the following order on 29th June, 2005, which reads as follows:-- "The Lord Ordinary having heard counsel for the pursuer in Chamber no caveat having being lodged ad interim grants interdict against the defender from removing or attempting to remove Adam Ahmed Rana and Misbah Ahmad Rana the children of the parties from the care and control of the pursuer and from that of anyone to whom the pursuer has entered the care and control of the pursuer and from that of anyone to whom the pursuer has entrusted the care and control of said children or out with the jurisdiction of the Court." ' The respondent No,1, who at the relevant time, was residing at 1/Right, 137 Kenmore Street, Pollock Shields, Glasgow, was served by the Sheriff with the above order on 30-6-2005. He engaged MIs. Brodies to act as his agents and through them attempted to reach with the petitioner an out of Court's settlement, which could not materialize. M/s. Brodies withdrew from the case and informed the court that they no longer act for the respondent No,1. The temporary Lord Ordinary was apprised of this situation, who on 15th of November, 2005, was further pleased to pass the, following order:-- "The temporary Lord Ordinary, having heard Counsel for the pursuer on the pursuers' motion enrolled on 11th of November, 2005, dispenses with the requirements of Rule of Court 23.3. (3), Recalls the Sist granted on 2nd August 2005, ad interim Makes a Residence Order providing that the child Misbah Ahmed Rana born on 16th of July, 1994 live with the pursuer and in respect that it is stated in letter No,13 of process, that the Defender's solicitor no longer acts for him, Ordains the defender to intimate to the Deputy Principal Clerk of Sessions, 2 Parliament Square, Edinburgh, EHI IRQ within fourteen days from the date of intimation hereof, whether if not he insists in being the Defender in the action under certification that failure to do so may result in the Court granting such order as it thinks fit. Appoints the pursuer's solicitors to serve a notice in terms of Form 30.2 of the Appendix to the Rules of Court together with a copy of this interlocutor on the Defender and to lodge a certificate of execution of such service in process." ' The above order was served upon the respondent No, 1.The petitioner thereafter, appointed The Anderson partnership" as his solicitor, who filed the defences in the Court on his behalf in June, 2006. It is also the case of the petitioner that in order to ascertain the views of the minor, the court was pleased to appoint a reporter to contact all the relevant parties and to prepare an
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independent report for the court, but on 25-8-2006, at 4-00 p.m. One of Misbah Ahmed Rana's friend came to the petitioner's residence and said that Misbah has informed her that she is going to London with her sister Tehmina, the respondent No,2. And on 26-8-2006, the petitioner received a call from Misbah stating that she is in the company of respondents in Pakistan and the petitioner heard that Misbah Ahmed Rana; was being dictated what to say to the petitioner. ' On account of the facts mentioned above, it is stated that Misbah is in the illegal and improper custody of respondents, who both in connivance with each other to out rightly flout the orders of the Court of Sessions in Scotland, has planned this abduction and has illegally brought Misbah to Pakistan. 5. The written statement has been filed by respondents, and it has been stated that Misbah herself abandoned the roof of her mother's house on her own initiative and with her volition; this happened as the petitioner, started living with Mr. Campbell as his common law wife; the gentleman is not related to Misbah within the prohibited degree, under the injunctions of Islam; she even has changed her name as entered in the Birth Register (Misbah Rana) to Molly Campbell without adopting the legal procedure for it. As Misbah escaped from the custody of her mother, neither her father nor her elder sister can hold responsible for it; no law enforcement agency in Scotland has either been deceived or defied. It is reiterated that respondent Sajjad Ahmad Rana and Tehmina has no role whatsoever to play in the escape of Misbah Rana from the house of her mother in the circumstances narrated above. Lahore (Pakistan) is the ordinary place of residence of Misbah Rana. In paragraph No,7 of the reply, it is stated that answering respondent No,1, took the minor and her brother Adam to U.K., on the desire of the petitioner, to spend some time with her in Scotland. However, she has exploited this opportunity to obtain an interim custody and interdict orders from the Court of Sessions in Scotland. In this view of the matter, the ordinary and habitual place of Misbah is Lahore, where she has also been enrolled in a proper school. In reply to various paragraphs of the petition pertaining to the initiation of the proceedings by the petitioner before the Court in Scotland and the orders passed by the Court and the defences given by the respondent No,1, are not specifically controverted by the respondents, either evasive denial has been given in this behalf or it is stated to be a matter of record. It is, however, emphasized by the respondents that no abduction of any type has taken place; the minor herself escaped from the home of her mother; no one either instigated or induced her to do so; besides, the writ petitioner is not a fit person to hold the custody of Misbah Rana; this is particularly so as she is living with Mr. Campbell from whom she now has a baby. It is also stated in the reply that "Sajjad Ahmed Rana is entitled to the custody of the minor, which is in her welfare. She is entitled to be brought up as a good Muslim girl in Islamic Environment." The respondents have also mentioned that the case for the appointment of the guardian has been filed by respondent No,1, about Misbah, which is pending adjudication in the Court of learned Guardian Court at Lahore. 6. The petitioner has filed the rejoinder to the written statement and it has been highlighted that in June, 2006, respondent No,1, through his Agents Anderson partnership, filed his defences upon which, the Lord Ordinary, was pleased to pass an order on 30-6-2006, whereby Margaret Hughes, Advocate, Edinburgh was directed to enquire into and report to the Court on all the facts and circumstances, relating to the care and upbringing of the child Misbah and to ascertain the views of the child Misbah and the report to be transmitted to Deputy Principal Clerk of Session 2, Parliament Square, Edinburgh. If respondent No, l's stand that Misbah wishes to stay with him, is true than he should be willing to allow Misbah to return home and express her views to the reporter appointed by the Court of Sessions. If Misbah according to the respondent No,1, was 'escaping her home' then why did he abduct her in presence of the court order dated 29-6-2005. It is also stated that the Scottish Court was pleased to grant interim residence order as requested by petitioner dated 15-11-2005 and in June, 2006, respondent No,1, instructed Messr's Vigil Crawford, who
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instructed Messr's Anderson partnership as Edinburgh agents to move a motion seeking an interim residence order; this was opposed by the petitioner's solicitors and it is during the court hearing that the court ordered that a reporter should enquire into the facts and circumstances of the case and record the views of Misbah. In the rejoinder, the petitioner has denied the allegation of the respondents stated in the written statement that she after having embraced Islam has converted to Christianity. 7. I have heard learned counsel for the parties. It is argued by Mrs. Nahida Mahboob Elahi, learned counsel for the petitioner that the respondents have concealed about the proceedings and the orders passed by the Scotland Court in the petition filed before the Guardian Court. The minor is the habitual residence of Scotland, where she has been living since her birth except for few months, when she earlier was brought to Pakistan by respondent No,1, without the consent and the permission of the petitioner; the whole family of respondent No,1 is also the resident of U.K., as his mother died in Glasgow, her sister and other family members live there, therefore, it is the Court, where the minor habitual residing, which has the jurisdiction to decide about the custody of the minor. Learned counsel also submits that in the para wise comments, the respondents have not specifically, denied about the proceedings initiated by the petitioner and pending before the Scottish court, in which, respondent No,1 has not raised any objection to the jurisdiction of that court, rather has submitted to the jurisdiction of the Court in Scotland. Further the various orders passed by the Scottish Court have not been disputed. Upon the proposition about the non- maintainability of the present petition, on account of the petition for the guardianship filed by respondent No,1, and pending before the Guardiah Court, learned counsel for the petitioner by relying upon the judgments reported as Uzma Wahid v. Muhammad Javed Umrao 1988 PCr.LJ 1883 and Muhammad Javed Umrao v. Miss Uzma Wahid 1988 SCM R 1891, states that both the jurisdictions are not overlapping and they do not exclude each other. Further reliance has been placed upon Miss Hina Jilani, Director of A.G.H.S. Legal Aid Cell. v. Sohail Butt PLD 1995 Lah. 151 to argue that in such circumstances, the custody of the minor should be given to the petitioner. Learned counsel for the petitioner, has also submitted that the judiciary of Pakistan, at the highest level and also U.K. And Scotland Judiciary, have entered into a protocol to return the minor in the case of child abduction by the parents, to the jurisdiction wherefrom the child has been removed, therefore, the questions about the welfare of the child are to be best determined where the child ordinarily and habitual resides and not by the Court, where he/she is brought through abduction and in a deceitful manner and has violated the Laws in bringing the child to Pakistan. It is also submitted that in a civilized Nations, the orders passed by the Judiciary of one country is ordinarily respected and given due weight and importance by the judiciary of the other country. 8. Dr. A. Basit, learned counsel for the respondents, at the very start of his arguments , has expressed his no objection about the maintainability of this petition, on the score of the initiation and pendency of the guardianship petition filed by the respondent No, I. But states that the case of the petitioner does not fall within the purview of Article 199 of the Constitution of Islamic Republic of Pakistan, because the custody of Misbah with her father, according to the laws of Pakistan, cannot be held to be "without lawful authority". Besides, section 491 of the Criminal Procedure Code, is also not attracted to the case, as his custody is neither "illegal" nor "improper". 9. Learned counsel for the respondents has further argued that the minor has not been abducted by the respondents, rather she on account of the reasons, stated in the reply, has left the roof of her mother, out of her own free will and therefore, the minor cannot be compelled to go and live with the petitioner. Dr. A. Basit, submits that according to the Article 12 of the Convention on the Rights of the Child, which has been ratified by Pakistan in the custody matter, the opinion of the minor has to be given due weight and respect. It is also stated that Hauge Convention on the Child abduction, though has been ratified by the U.K. But not by Pakistan, therefore, the principles laid down in the
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Hauge Convention are not applicable in this country. It is submitted that the omission to ratify is not without a purpose, but it has not been approved, as it would contravene the provisions of Articles 2, 2-A and 227 and the principles of policy enshrined by the Constitution of the Islamic Republic of Pakistan. Dr. A. Basit, argued that the concept of abduction of a child by the parent, is not applicable in the Pakistan. The learned counsel has also emphasized that the values and the culture in Pakistan, regarding the family set up is all together different from Western World and the religion has great impact upon the family set up and the society as a whole, therefore, a Muslim child born to a Muslim family, heeds to be brought up according to the Islamic value and the culture and this is not possible in the U.K., where the social norms are in direct contradiction. ' He argued that the child today is in Pakistan and has previously been resided over here; she by descent is a Pakistani citizen and is ordinary and habitual resident of Pakistan, living with his family including the father Sajjad Rana, sister Tehmina, brother Adam and her stepmother and step-baby sister and has also been studying in Pakistan in the School, therefore, it is the Pakistani Courts, which have the jurisdiction to determine the question about the custody of the minor. Dr.A. Basit, has stated that the custody of Misbah is not being held in an unlawful manner, as has been contemplated by Article 199(b) of the Constitution of Islamic Republic of Pakistan, the right of custody has been protected by the order of the learned Guardian Judge, on the petition, filed by respondent No,1, which order is still in force. He states that the writ be dismissed on the short point that the custody is not unlawful; however he has submitted that the parental jurisdiction, as contemplated by section 3 of the Guardians and Wards Act, 1890 and the Letters Patent of this Court should be exercised; he stated that the proof about the child being the ordinary/habitual resident of Pakistan is that she earlier had come to Pakistan with the permission of the mother, with the intuition to permanently reside in Pakistan and has been going to the school since the year, 2003, and thereafter, visited Scotland occasionally; the learned counsel submits that when in the year 2003, the minor was brought to Pakistan, the petitioner never moved the Scottish Court or propounded any grievance that the child was abducted,. According to the Passport of the family, it is clear that the minor Misbah along with other arrived in Pakistan on 3-3-2003 and stayed here till 17-5-2003, at that time, Misbah was of 9 years of age; she came back to Pakistan in June, 2003; the minor was admitted in Punjab Grammar School Modal Town; she lived in Pakistan, till June, 2005 and when she went back to U.K., to spend the holidays, the interdict order dated 29-6-2005 was procured by the petitioner, it is emphatically argued that respondent No,1, has never surrendered to the jurisdiction of the Scottish Court, rather he had asked his solicitor to challenge the jurisdiction of the court, as Misbah was not the ordinary or habitual resident of Scotland, which plea was not taken by the solicitor in the defences and this compelled the respondent No,1, to dismiss the solicitor, thereafter, the proceedings against the respondent has gone un-represented and are ex parte, therefore, any admissions made by his solicitor are of no legal significance and value and are not binding upon him; it is submitted that it is the welfare of the minor, which is very key factor to be taken into consideration by the Court while deciding the custody issue and the element of surrender to the jurisdiction of the foreign court, does not arise. Lastly, it is submitted that the last word in the matter belongs to the minor Misbah and she time and again, through the media and before this Court has unequivocally avowed that she would like to live with his father in Pakistan and has not been abducted. In support of his contentions reliance has been placed on the case reported as Sara Palmer v. Muhammad Aslam 1992 KLR Crl. Cases 417. 10. Having heard the arguments of both the sides, I find that the following are the key questions, which need to be adjudged and determined in this case:-- (1) Whether Misbah Rana, the minor, is the habitual resident of the Scotland (U.K.) and therefore, the Court there has the jurisdiction or she ordinarily resides in Pakistan and it is the Pakistani Court, which possesses the jurisdiction to decide the question about her custody.
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(2) What is the effect of the proceedings and certain orders passed by the Scottish Court regulating the custody of Misbah Rana, pending final determination of the claim brought by the petitioner against respondent No,1 in Scotland. (3) Whether the custody of Misbah Rana, held by respondents, is "without lawful authority" or "in unlawful manner" or "illegal or improper", so as to bring the case of the petitioner, within the purview of Article 199 of the Constitution of the Islamic Republic of Pakistan and/or section 491, Cr.P.C. (4) Whether Misbah Rana, has come to Pakistan, out of her own free will and there is no element of any abduction or deceitful removal of the child, from the jurisdiction of the U.K's Courts in violation of the Court order and the undertaking given by the respondent No,1, to the Court there and what is the effect of her opinion in the light of the orders tiassed by the Court in Scotland. (5) Whether the question about the welfare of the minor, should be adjudged by this Court in the light of the Islamic norms and culture or such issue should be left for the determination of the Court in Scotland. QUESTION NO.1. 12(sic). While answering this question, I may refer to certain facts, which are admitted between the parties; the petitioner by birth is a U.K citizen, whereas, respondent No,1 was born in Pakistan, but has acquired the British National since long and has dual nationality; they were married in U.K and all their children are born British Nationals; they along with their children have been permanently living in U.K; the children have been studying in U.K and after the divorce between the parties, Misbah Rana was in the joint custody of the parents till 2003. However, the disputed facts are, that it is claimed by the petitioner that the girl was removed by the respondent No,1 to Pakistan without her consent, whereas, it is the stance of respondent No,1, that it was the understanding of the petitioner that the child was brought here with the intention that the entire family of the said respondent, shall settle in Pakistan. It is further the case of the respondents that the minor has been in Pakistan since 2003, but no proof in this behalf has been filed by the respondents, rather the counsel for the respondents has relied upon certain admissions, which according to him, are made by the petitioner in the condescendence filed by her in the Scottish Court, such as "in 2003 without either consulting with the pursuer or obtaining her consent the defender unlawfully removed the three youngest children from Scotland and moved them to Pakistan to reside there permanently with him". She according to Dr. A. Basit has also admitted in the said document that since 2003 the minor is permanently and continuously residing in Pakistan. However, when asked to substantiate the same with reference to any such admission, only inferences were drawn by him and no specific portion was brought to the notice of the Court, 'whereas the respondents have not brought on record any document including the Passports of the child that she has been constantly living in Pakistan since 2003. No School record has been attached to the reply, which could show her study over here. However, when the child was asked about her stay and study in Pakistan she narrated it to be about a year. ' From the above, it remains unclear about the length of the period, the child stayed in Pakistan. But this ambiguity stands removed on account of the fact that when the notice was served upon the respondent No,1 by the Scottish Court regarding the custody petition/claim of the petitioner filed there, he engaged M/s Brodies as his agents, who on his behalf, attempted to settle the matter outside the court and addressed a letter dated 22-7-2005, to the solicitor of the petitioner in .Which an offer was made "Our client has advised that the children confirmed that they wished to reside with their mother for the time being but that they would wish to contact with our client, both residential and non-residential, when he is in the country every few months. Our client is at present prepared to respect the children's' summons for calling in the event that you do wish to do so, please let us know so that we may enter appearance. It is further stated therein "It is hoped that the parties will now be able to agree matters amicably and that progress of the Court action will not be
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necessary." In this letter, or any other correspondence from the respondents' side, it was never claimed that the child is not the habitual resident of Scotland, rather was ordinarily residing in Pakistan and thus the question about her custody cannot be settled in Scotland even through a compromise. Above all, respondent No,1, filed his defences to the claim of the petitioner before the Scottish Court, through his solicitor "The…
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