1. ' KHAWAJA NAVEED AHMED, J.---This Constitutional Petition has been filed by petitioner Mst. Nasima, against the order of II-Additional District Judge Karachi East in Guardian Ward Appeal No,72 of 2007, whereby the appeal of the petitioner was dismissed. The appeal was preferred against the order dated 1-8-2007 passed by XII Civil and Family Judge.
2. ' The brief facts of the case are that the petitioner is mother of child, namely, Aly Muhammad Hanif Jan Muhammad who was born on 4th May 2004 in Calgary, Canada. The child is a Canadian National by birth. The child was given Canadian Nationality and Passport as per Canadian Law.
3. ' The petitioner's husband is residing at Tanzania. The petitioner, after birth of her child went to Tanzania and started living with her husband. After some times, the spouses had developed differences and as such couple was divorced through Court of Magistrate of the Primary Court of Kariakoo, Hala District, Dar-as-Salam, Tanzania vide order dated 21st June 2005. Both spouses are Ismailis Shia and their matter prior to divorce went to his Highness Prince Agha Khan Shia Imami Ismaili Conciliation and Arbitration Board. Tanzania. The Board had prepared and got signed a Memorandum of Understanding between the parties dated 19-6-2005 and subsequently the Primary Court of Tanzania had passed order according to Memorandum of Understanding between the parties.
4. ' The petitioner has stated that her child is having triple citizenship. Citizenship of Canada by reason of his birth, citizenship of Tanzania by reason of his father's citizenship and citizenship of Pakistan by reason of his mother citizenship.
5. ' The petitioner has submitted that she being Pakistani has been subjected to Pakistani Law.
6. However, when she was in Tanzania, her husband had dragged her into primary Court where their marriage was dissolved by way of divorce and joint custody of minor child was given to both the parents. The Court had given day to day care of the child to the petitioner till the child was of 7 years of age. The petitioner was also allowed by the Honourable Court to move with the minor to Pakistan. The petitioner has stated that she is raising her child at her own expenses and the father of the child is not contributing any amount towards bringing up and education of the child. It is pertinent to note here, that while granting joint custody of the minor, the Primary Court of Tanzania had been pleased to direct respondent No,1 for minor child support, medical support and education support in the following words:-- ' "14. During the time that the Child resides with the mother, the father shall pay as child support for the child an amount of equal to US $ 300.00 (three hundred Dollar only) such amount to be paid at the beginning of each month.
16. During the time the child resides with the Mother, the Mother shall ensure that the child is covered by adequate medical insurance by health, medical and prescription medication. The father shall pay the cost of such insurance.
17. The father shall be responsible for the school fees associated with educating the child. The father shall pay the school fee to the school in which the child has been enrolled."
7. ' It has been stated by the petitioner that in utter disregard and gross violation of the said orders of Tanzania Court, the respondent No.1 has failed to pay a single penny to the child or his mother. The petitioner has stated that her husband is using the order of Tanzania Court in respect of joint custody as a tool for blackmailing the petitioner. The petitioner wants to move to Australia and for taking Australian visa for her child she needs N.O.C. From her husband but her husband is deliberately withholding his N.O.C. In order to torture the petitioner. The petitioner had moved application in civil Court but the learned XII Civil Judge while dismissing her application had observed as under:-- "After hearing the learned counsel I have perused the averments of application and judgment of primary Court of Kariakoo, minor is having Tanzania nationality and the dispute about the custody between applicant was resolved between them by the primary Court up to age of seven years vide order dated 21-6-2005 and in pursuance of that order custody of minor was shifted to Pakistan and respondent is still residing at Tanzania. The Judgment of Tanzania Court is operating and if respondent has made any default then applicant can approach the same Court hence this application is not maintainable, application stand dismissed."
8. ' Against that order, revision was filed before the II Additional District Judge Karachi East. The learned appellate Court while dismissing has observed as under:-- ' The judgment passed by the Tanzania Court is in existence and the appellant may approach the said Court for the relief sought in G and W application but instead of adopting the proper procedure and proper forum, she has filed G and W Application before the trial Court, which is not maintainable."
9. ' I have heard the petitioner's counsel as well as petitioner in person and also seen the child present in Court.
10. The ward is presently residing in Pakistan. The mother Mst. Nasima is supporting her child without any financial support from the father of child. The mother wants to move to Australia for better financial prospect for herself and for child. The father of the child is not supporting his son financially and the child is of growing age. The requirement of N.O.C. From the father of child by visa officer is legal formality to be completed prior to issuance of visa to the child. At this moment, point for consideration before me is that whether the order of the Tanzania Court comes in the way of the order appointing petitioner as the Sole Guardian for the purpose of getting Australian visa for the child.
11. ' I have heard the learned counsel for the petitioner and have also perused the record.
12. The order of the Tanzania Court has already been flouted by the father by not supporting the child financially. He has chosen not to appear in this Court to contest this petition in spite of service upon him.
13. The guardianship law says that the Court within whose jurisdiction ward is residing has jurisdiction over matters of ward. Presently ward is residing at Karachi and I had seen the child in Court. He is quite healthy and well maintained child. The mother has already the custody of child with her. She wants to go to Australia for better prospect for herself and for her child. She is already out of Tanzania and jurisdiction of Tanzania Court. It makes no difference if she lives in Australia or Pakistan.
14. In the above circumstance, I hereby appoint the mother of child, Mst. Nasima, as sole guardian for the purpose of obtaining visa for Australia and for the purpose of renewal of Canadian Passport of the child. She is authorized to sign all the documents in capacity of sole guardian of child for the purpose of obtaining visa for Australia and for renewal of Canadian passport of child. The Constitutional petition 114 of 2008 is allowed in the above terms.