' This is a revision petition against an order of the Guardian Judge, Lahore dated the 23rd January 1978, by which he returned the petitioner's application under section 25 of the Guardians and Wards Act for presentation to a competent Court.
2. The facts as emerged from the record and the arguments of the learned counsel are that the petitioner and the respondent were married on the 17th April 1969. They were residing in England from the time when Pakistan was a Member of the Commonwealth and thus had the status of British National also under the provisions of the British Nationality Act, 1948. Thereafter, Pakistan ceased to be a Member of the Commonwealth from 30th January 1972, whereupon Pakistan Act, 1973, ELIZABETH II, c-48, was passed by the British Parliament, repealing, in respect of Pakistan, that portion of the Nationality Act of 1948, by virtue of which citizens of Pakistan became British citizens.
The parties then applied for British Nationality which was conferred upon them on the 29th May 1975. Before that date, however, on the 15th May 1975, they underwent another ceremony of marriage in England which had become necessary for obtaining the certificate. They have four children, Atif Rashid Sheikh (son) born on 20-1-1970, Shama Sheikh (daughter) born on 26-6-1971, Saima Sheikh (daughter) born on 30-12-1974 and Kashif Sheikh (son) born on 30-3-1976. The first three are also British Nationals.
3. It so happened that in the year 1975, the petitioner who owned a house in England had to come back to Pakistan after selling it since his father had died and he had to look after his property.
Thereafter, the parties lived till October 1976 at Lahore. During this period the fourth child Kashif Sheikh was born at Lahore on the 30th March 1976.
4. Some unpleasantness grew between the spouses. According to the learned counsel for the petitioner, the wife was not willing to live with the petitioner's mother in the house at Chuna Mandi.
She, therefore, went to live with her parents. Before that, the first two children had been admitted in Class-one and Nursery respectively in the Cathedral School. They remained in that School even after the separation of the wife and the husband .And, according to the learned counsel the petitioner has been incurring the expenses of education of the children.
5. In October 1976, the respondent obtained a duplicate passport on false representations firstly that she had lost her own passport although in fact it was with the husband 'and secondly that she wanted to join her husband in England while the fact was that the husband, as stated above, had throughout been living at Lahore. Having obtained the passport by misrepsesentation and having committed an offence under section 3 of the Passport Offences Act, 1953, the respondent left for England with the four children.
6. The petitioner filed an application under section 25 of the Guardians and Wards Act for the custody of the four children on the 25th January 1977, before the Guardian Judge, Lahore. However, in this application instead of disclosing the address of England, the petitioner showed as if the respondent was residing in House No, 2-A, Luchman St. No, 6, Rabbani Road, Old Anarkali, Lahore, which belonged to her father.
7. The application was contested inter alia on the question of jurisdiction of the Guardian Judge in view of the ordinary residence of the respondent and the minors being in England. Certificates of birth of the first three children, to prove that they were born in England, were filed. ' Similarly, a copy of the application submitted by the respondent against the petitioner in the Brentford County Court, for dissolution of marriage, for grant of custody of the four children, for maintenance and for grant of property transfer orders, was placed on the record. The notices sent by the County Court and the orders appearing on them were also filed. These orders are that the ward of the Court may not go from England without the leave of the Court. The respondent also wrote a letter to the Guardian Judge claiming that she was a British national and throwing light on the circumstances under which she had to leave the house at Chuna Mandi. She made reference to the above application for divorce and the custody of the children submitted by her in the British Court. A letter written by Atif Sheikh, son of the parties, dated 25th January 1977, was also attached in which he stated that he was happy there and went to school every day. He did not like Pakistan, and did not want to see his father, etc. Since it was borne out by the record and was not challenged by any party that the respondent and the children are residing in England, the Court held that it had no jurisdiction in view of section 9 of the Guardians and Wards Act. It also observed that if it had been brought to its notice that the respondent was a resident of England, it should not have ordinarily ordered the respondent to be served at England.
' Having given this finding the Court returned the application under section 25 for presentation to a Court of competent jurisdiction.
8. The learned counsel for the petitioner argued the case at length. He submitted that the authorities relied upon by the learned Guardian Judge were all distinguishable. On the other hand, the case was covered by Muhammad Siddique v. Aziz Bibi (1). He argued that where the children have been removed from the custody of the guardian by deceitful means, the principle of ordinary residence of the children as worked out in Zubaida Begum v. Ghulam Rasool (2) would not apply and the minors would be deemed to be residing where the father or the guardian resides. He
(1) PLD 1970 Lah. 596 (2) PLD 1959 Lah. 967 further argued that the Courts have to see the domicile of the parties. The domicile of the husband really governs the domicile of the wife. Similarly, the domicile of the father of minor children determines the latter's domicile. On this score he argued that the children as well as the respondent should be treated to be the domicile of Lahore in Pakistan, and as such their residence should be treated as of Lahore.
9. The learned counsel agreed that at least three children of the parties have a dual nationality.
They are nationals of Pakistan as well as British nationals, But he argued that if this Court passes an order, the Courts in England are bound to honour it in view of change of precedent law in cases of kidnapping of children from one country to another. In this connection, he relied upon "The Conflict of Laws" by J. H. C. Morris (Eighth Edition), pages 397 and 398. He also placed reliance upon Re N.
(infants) (1) and Re E. (An infant) (2) which have been referred to at page 398 of the above- mentioned book. He further referred to "The Law Relating to Children" by H. K. Bevan at pages 262 and 264 for the same proposition. Lastly, he relied upon clauses (9) and (10) of the Letters Patent of the High Court, Lahore, to urge that if it is assumed that the learned trial Court has no jurisdiction, it is open to this Court to transfer the case on its own file and after setting aside the order to decide the matter.
10. The passage relied upon at pages 397 and 398 of Conflict of Laws is as follows :- "Where a foreign custody order is in existence, the Courts, in recent times, have taken a much broader view of their power to make a new order, based on the 'first and paramount consideration' of the welfare of the infant. Where the rights of the person entrusted by a foreign Court with the custody of the infant are not challenged in England, it seems that he can exercise these rights on the same conditions as a foreign guardian proper. If, however, one of the parents applies for a custody order, and the Court has jurisdiction under rule 50, it will determine the issue as if it were res Integra, although previously a custody order was made by a foreign Court. It is irrelevant on what ground the foreign Court exercised jurisdiction. It may have been a Court of the country of which the parties were nationals or where they were domiciled or which exercised jurisdiction in matrimonial matters for any other reason. This practice which in England was initiated in 1940. Has since been approved by the Judicial Committee of the Privy Council. It was preceded and followed by a similar practice in other parts of the Commonwealth. Recently, however, the generality of the principle set out above has been doubted in circumstances in which the infants were aliens whose personal law was not English and who had been brought to England secretly in defiance of an agreement sanctioned by a Court abroad not to remove them out of the jurisdiction of that Court.
' Again : "It has been held, however, recently that while the welfare of the infant is the chief consideration, it is not the only consideration, especially if the infant has been brought within the jurisdiction secretly or by force. In these circumstances the respect to be accorded to a previous foreign custody order, the injustice done to the parent who has been deprived of his rights in consequence of the removal of
(1) (1966) 1 All E R 886 (C A) (2) (1967) 1 All E R 881 the infant to England, the difficulties arising from the fact that England may not be the forum conveniens and the danger that the infant may become rooted in England, if the proceedings have to be delayed in order to produce witnesses and other evidence from abroad, must be weighed against the possibility of any harm to the infant, if the Court refuses to reopen the case and orders the infant to be sent back. Re : H. (Infant) (1966) 1 W L R 331 (C. A)."
11. This new tendency is explained thus at pages 294 and 295 of the Law Relating to Children :- "But recent cases show that the interests are not to bear the same emphasis as they would in a purely domestic case, and instances of a person removing a child from a foreign jurisdiction in defiance of an order of the foreign Court have led to some hardening of attitude in favour of the foreign order."
12. The new trend discussed in these passages was revealed in cases where some order was passed by a Court of competent jurisdiction after which the children were kidnapped and taken away to England in order to flout the above order and proceedings had to be taken for their repatriation to the country of origin. They do not throw any light on the question of interpretation of section 9 of the Guardians and Wards Act. If the dispute of custody is settled by domestic Courts, removal of the child to England for avoiding the consequences of the order or in defiance of it is disapproved by English Courts on weighing on one side the interest of the child that he will come to no harm and on the other side the aspect of public policy, the question of comity and the question of 'forum convenient' the possibility of reconciliation of parents all of which tread in one way or the other on the ultimate welfare of the minor.
13. They do not lay down that the domestic Courts have any jurisdiction left towards implementing its order or passing any new order of custody of children beyond its jurisdiction. In all these cases proceedings had to be started by the aggrieved guardian in English Courts.
14. Rule 51 at pages 392 and 393 of the Conflict of Laws on the other hand provides for exclusive jurisdiction of the foreign Courts in such matters. It is as follows :- "(1) A Court of a foreign country has jurisdiction to appoint a guardian for an infant who at the time when the proceedings were begun was a national of that country, or (semble) owed local allegiance by virtue of ordinary residence or presence there.
(2) Such a foreign guardian will prima facie be recognised in England as a guardian of the infant, but can only exercise such control over the person of his ward situate in England as a foreign parent can exercise."
' This rule is in favour of assumption of jurisdiction by the Court of a foreign country whether the infant is a national of that country or simply owes allegiance to it by virtue of ordinary residence or even mere presence there.
15. The law of domicile affords no more protection to the aggrieved parent in this respect. While ordinary residence is a question of fact, domicile is a question of law. It is 'ordinary residence' which provide criterion for territorial jurisdiction of the Court and not the legal concept of] domicile. Even animus revertendi or intention at some remote point time to revert to the original country of domicile will not confer jurisdiction' upon the Courts of that country if the children ordinarily reside in another' place or country outside their jurisdiction.
16. Much was argued about dual citizenship or dual nationality. It was urged that United Kingdom Nationals who are nationals of any other country also cannot be protected by Her Majesty's Representative against the authorities of that country in regard to any obligation to which they are liable to that country.
17. This argument is not material. The concept of dual nationalism, dual citizenship or dual domicile may at must be extended to dual residence. But while talking of dual residence we cannot ignore that in such eventuality the residence in one country may be notional and in the other may be real or what we call ordinary. Ordinary residence means residence in fact and not merely residence in law. Even animus residendi may not b necesssary because such animus cannot be formed by a mere infant or even a lunatic. By applying the rule relied upon by the learned counsel for the petitioner it cannot be inferred from dual nationality that a person should be treated simultaneously to be an 'ordinary resident' of both countries within the meaning of that expression in section 9 of the Guardians and Wards Act.
18. Similarly, clauses 9 and 10 of the Letters Patent are not relevant. Clause 9 is about the transfer of cases to the original jurisdiction and clause 10 talks of the appellate jurisdiction. But they do not allow either specifically or even impliedly the High Court to pass an order in regard to matters which are not within its jurisdiction. Even the High Court cannot act unless it has territorial jurisdiction under section 9.
19. Now section 9 of the Guardians and , Wards Act provides in its first subsection that "if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides". In the case of Zubaida Begum v. Ghulam Rasool it was 'held that this section will determine the jurisdiction of the Court on an application under section 25 of the Guardians and Wards Act also.
' The expression "where the minor ordinarily resides" was explained in paragraph 7 as follows :- 41 ............. As section 9 stands, all that is relevant is the ordinary place of the residence of the minor as no mention has been made in the section with regard to the ordinary place of the residence of the guardian. According to well-recognised canons of interpretation of statutes the words occurring in section 9 of the Guardians and Wards Act with regard to the ordinary residence of the minor have, in my opinion, to be given their due weight and violence cannot be done to the language of the section for reasons which, though they may be laudable, are not recognised by law. It is true that a minor would ordinarily reside at a place where the guardian resides, but cases can arise-and in the present cases that is the allegation -in which the minors were. Allowed to be taken away to a place outside the jurisdiction of the Court within the jurisdiction of which the guardian ordinarily resides. If it was with the consent of the guardian that the minors had been taken away out of the jurisdiction of the Court in which an application under section 25 was subsequently, made I do not see on what principle of law, justice, equity or good conscience, the guardian should be allowed to say that though in fact the minor is, with his consent, residing at a place which is outside the jurisdiction of the Court where the application had been put in, it should nevertheless be held that the minor was ordinarily residing within the jurisdiction of the Court."
' The Court then distinguished cases in which the minor was removed with the ulterior object of taking away the jurisdiction of the Court. It was observed :- "As I have already said those cases in which a minor is removed with the ulterior object of taking away the jurisdiction of the Court, will stand on a different footing because if the removal is recent the Court can hold that the ordinary residence of the minor is the place from which it had been removed for an ulterior object and this is the view which was taken in Mst. Nazir Begum v. Ghulam Qadir AIR 1938 Lah. 313 to which I have already made a reference. It is however, clear that, because a ward should ordinarily reside at the place where the guardian resides, the initial presumption should be that the ward is ordinarily residing at the place where the guardian is, but the presumption is rebuttable and may in a suitable case be held to have been rebutted. I need hardly add that whether or not the initial presumption has been rebutted would depend on the facts and circumstances of each case and it is not possible, nor perhaps permissible, to lay down under what circumstances the above-mentioned initial presumption is to be taken to have been rebutted."
' Reliance was placed for this upon Mst. Nazir Begum v. Ghulam Qadir (1), Abdul Razzak v.
Muhammad Muller (2), Annie Besant v. Narayaniah (3) and Mst. Nazir Begum v. Ghulam Qadir (4).
' The other case on which the learned counsel relied upon, as stated above, was Muhammad Siddique v. Aziz Bibi (5). In that case it was held that "where the application is filed soon after such removal, the place of such removal will be ignored for the purpose of determining the jurisdiction of the Court to entertain the application and in spite of such removal the minor will be deemed to have its residence at the place where it was ordinarily residing. The new place to which the minor may have gone or may have been removed, can become the ordinary residence of the minor only after the minor has settled down at that place for a peasonably long period and the residence passed the stage of casual or temporary residence".
' It was on the basis of these authorities that the learned counsel argued that since the children have been removed by securing a passport by misrepresentation only to take them outside the country and outside the jurisdiction of the Court, such removal will not be of any benefit to the respondent and the ordinary residence of the children is the place where the petitioner is residing.
20. In Annie Besant v. Narayaniah the minor had been taken to England. A suit was filed regarding the custody which was decreed by the High Court. In appeal the Privy Council observed against the maintainabilly of the suit and also against the jurisdiction of the Courts in India on the
(1) AIR 1938 Lab. 313 (2) PLD 1956 Kar. 454
(3) I L R 38 Mad. 807 (4) AIR 1937 Lah. 797
(5) PLD 1970 Lah. 596 basis of section 9 of the Guardians and Wards Act. Similarly, in Fahimuddin Khokhar v. Mst.
Zaibunnisa (I) the children had been removed to Kuwait. It was held that the Court at Karachi had no jurisdiction over them.
21. The learned counsel tried to distinguish these two cases. He submitted that in the last case the children had not been taken by deceitful means. Moreover, there was no law and arrangement to enforce the order in Kuwait as there is reciprocity between Pakistan and England in this respect.
Regarding the Privy Council case, the learned counsel argued that it was firstly a case of contract between the guardian and a third party allowing the removal of the children to England though that contract was later on revoked. Secondly, it was a case of a suit which was not maintainable.
Thirdly, the children were grown up and were University students. It was held that it was not in the welfare of the children to send them back to India.
22. The principles that are clear from the authorities referred to above are that the cases of custody of children are maintainable in Courts within whose jurisdiction the children ordinarily reside. In a simple case of removal of the children from the place of residence of the guardian to another place the children will be deemed or presumed to be residing where they are actually living. But to cases where the removal is recent and is secured by deceitful means the principle of presumption being rebuttable is extended. According to Muhammad Siddique v. Aziz Bibi in a case of such removal the minor children will be deemed to be residing at the place o residence of their guardians unless they settled down at the place to which they have been removed.
23. The distinguishing features in the two cases pointed out by the learned counsel are not material. They do not help in interpreting the words `ordinary residence' nor the arrangement of reciprocity or treaty of extradition between two countries will be of any avail where the children do not ordinarily reside within the jurisdiction of the Court seized of the matter. It was for this reason that in Mst. Nazir Begum v. Ghulam Qadir section 9(1) was interpreted by their Lordships of the Judicial Committee, as, excluding the jurisdiction of the Indian Courts over children residing in England.
' In Re : P (G. E.) (An infant) (2) it was held that the fact that the infant has a parent in England who provides a home for him, even without the consent of the other parent, provides evidence of ordinary residence in England.
24. Now in the present case the respondent had left this country in the year 1976 for permanent residence in England, had admitted the children in English Schools of that country, had applied for their custody in a County Court and according to the order shown to me by the learned counsel for the respondent which was passed by the county Court during the pendency of this petition, such an order of custody has been passed in favour of the respondent by that Court. In these circumstances, even if it is held or assumed that the children had been removed from the place of ordinary residence of the guardian to a place outside the jurisdiction of the Court, by deceitful means, it would hardly make any difference since the fact remains-and this fact is all important- that they
(1) PLD 1968 Kar. 774 (2) (1965) Cli. 568 (593) have been removed and settled in England and are residing there. These' facts are sufficient to oust the jurisdiction of Courts in this country.
25. Moreover, their mother is a national of that country and has apparently gone there with the intention to live permanently. She enjoys a right of Hizanat over at least three younger children. The ordinary residence of the mother will determine the ordinary residence of these children.
26. Then the fact remains that all the children except the youngest all E in their own rights are British citizens and have been residing in Britain since October 1976. On no count can they be held to be ordinary residents of any place in Pakistan. In these circumstances, I am of the view that the learned Guardian Judge was right in holding that be had no jurisdiction in view of section 9 and in returning the application for presentation to the competent Court.
27. The petition is dismissed leaving the parties to bear their own costs.