ASAD MUNIR, J.--- Through this writ petition filed under Article 199 of the Constitution read with section 491 of the Criminal Procedure Code, the petitioner, Ms. Roshni Desai has sought the issuance of a writ of habeas corpus for the recovery of her son, Azan Sohail Niazi, aged about 3-1/2 years, who is stated to have been unlawfully and unauthorizedly removed on 7th March, 2011, from her lawful custody in Montreal, Canada by respondent No,1, Mr. Jahanzeb Niazi, who is the father of the minor and who is also alleged to have brought the minor to Pakistan.
2. By this Court's order dated 11-4-2011, the minor was recovered by the Punjab Police from the custody of respondent No,1 in Rawalpindi and produced in the Court on 12-4-2011, when, as an interim measure, the custody of the minor was entrusted to the petitioner.
3. As appears from the record, the minor, Azan, was born on July 7, 2007, in Montreal, Canada, whereafter the petitioner and respondent No,1 lived together in Montreal till November, 2010 when due to differences, the petitioner along with the minor left respondent No,1 and started living separately but not without allowing respondent No,1 the visitation rights to meet the minor once a week. Apparently, respondent No,1 did not reconcile with the change and became restless as he wanted the full-time custody of the minor. His restlessness turned into desperation when he took away the minor on 7th March, 2011 and on the following day brought him from Canada to Pakistan without the knowledge or consent of the petitioner as has been asserted by her. It is on 9th March, 2011, that the petitioner received the information that respondent No,1 had along with the minor flown out of Canada via Toronto Airport whereafter she filed a petition before the Canadian Superior Court (Family Division), District Montreal, Province of Quebec, Canada, who vide order dated 11th March, 2011, granted legal custody of the minor to the petitioner and directed respondent No,1 to hand over the custody of the minor to the petitioner by not later than 15th March, 2011. After obtaining the said order, the petitioner approached the Royal Canadian Mounted Police who has issued a warrant for the arrest of respondent No,1 for the abduction of the minor.
4. On behalf of the petitioner, it has been contended by her learned counsel that according to Pakistan Law respondent No,1 has no right to the custody of the minor as no legal marriage has been solemnized or contracted between the petitioner and respondent No,
1. It is further contended that the minor, who is a Canadian citizen, has been unlawfully removed from the lawful custody of the petitioner in Canada where the minor was born and where he was being brought up. It is lastly argued that in view of order dated 11th March, 2011, passed by Canadian Superior Court (Family Division), the minor has to be returned to the lawful custody of the petitioner in Canada.
5. However, respondent No,1 's learned counsel, while opposing the stand of the petitioner, has objected to the jurisdiction of this Court to hear this matter by pleading that it is the Court of Guardian Judge, under the Guardians and Wards Act, 1890, who has the exclusive jurisdiction to adjudicate upon the question of custody of the minor which is complex as it involves a factual inquiry requiring production of evidence. Respondent No,1 's counsel has also tried to argue that the relationship between the petitioner and respondent No,1 should be deemed as a lawful marriage as the couple has lived together with their free consent. Respondent No,1 also claims to have brought the minor to Pakistan with the consent of the petitioner and in support, has placed on record a consent letter which bears the stamp but not the signatures of a noiary public in Montreal Canada. It is further argued that the petitioner, being a non-Muslim, is unfit to have the custody of the minor and that the welfare of the minor lies in staying with his father as not only is he a Muslim but is also a Pakistan citizen. Lastly, it is contended by the learned counsel that the petitioner seeks the enforcement of the Canadian Superior Court's order which cannot be enforced through the present proceedings as section 13 of the Civil Procedure Code, 1908, provides the mechanism for the recognition and enforcement of an order or decree of a Foreign Court.
6. I have given due consideration to the arguments advanced by the learned counsel for the parties who are at odds with each other over the question of the custody of the minor. While doing so, I have also exattined the available documents referred to by the learned counsel.
7. Admittedly, the petitioner, who is a Canadian citizen of Indian extraction, is Hindu by faith while respondent No,1, a Pakistan citizen having a permanent residence in Canada, professes to be a Muslim. It is also undisputed that the petitioner and respondent No,1 have lived together but without any marriage or civil union solemnized or contracted between them which is recognized or registered under the laws of Canada or more particularly those of Quebec. Their cohabitation was a de facto union instead of a de jure union which is described as a common law marriage or partnership in many Commonwealth countries and is also sometimes referred to as conjoins de fait in Quebec (Canada).
8. The question of a minor's custody has to be addressed by reference to his status under the applicable Pakistan Law, more appropriately the Islamic law, which does not recognize a common law marriage or partnership as a valid marriage with the result that a child born to parents, having a common law marriage, is born outside marriage and cannot be regarded as a legitimate child.
Under Islamic Law, the father of an illegitimate child has no legal tie with the child even though he is the biological father and the blood tie between the two is undisputed. Such a father has no legal relationship whatsoever with the minor so much so that the child does not inherit from his father or vice versa which is otherwise in the case of a legitimate offspring. However, an illegitimate child has a full legal tie with his mother and there is no obstacle in the way of the child inheriting from his mother or vice versa. In fact, the mother of an illegitimate child is not only entitled to the custody of the child but is also regarded as the guardian of the child to the total exclusion of the father. In this regard, one can refer to Ameer Ali's Muhammad Law, Volume II, page 238, Seventh Edition, which quotes the classic works of Radd-ul-Mukhtar to state that "the custody of illegitimate children appertains exclusively to the mother and her relations". Likewise, in DF Mulla's Mohammadan Law, Seventeenth Education; at page 94 it is stated that "An illegitimate child is considered to be the child of its mother only and as such it inherits from its mother and her relations and they inherit from the such child" and that "an illegitimate child does not inherit from its putative father or his relations. According to Gulzar Begum versus Suggi (62) A.S.C. 93, the right of custody of a minor illegitimate child can be enforced by his or her mother by means of a writ of habeas corpus.
9. A non-Muslim mother suffers no disability as Islamic Law allows a non-Muslim mother to exercise the same rights of custody as are enjoyed by a Muslim mother. If any support is needed, reference can be made to Ameer Ali's Muhammadan Law, page 223, where it is stated that the right of a mother qtr the custody of her child is established if even' she is a non-Muslim and is not even a Christian or a Jew. This only means that Islamic law protects the rights of custody of a non-Muslim mother regardless of whether the child is legitimate or is otherwise. In this perspective, even if a lawful marriage is presumed between the parties, respondent No,1 cannot claim custody over the minor on the ground of his legitimacy and/or on the plea that the petitioner is a non-Muslim.
10. Respondent No,1 claims to have brought the minor to Pakistan with the consent of the petitioner on the basis of a letter, signed by the petitioner. The said letter bears the stamp but not the signatures of a notary public in Montreal, Canada, who is reported to have confirmed that the petitioner did not sign any consent letter in his presence. The petitioner denies having ever signed the letter and has in fact alleged that it is forged. The stand that the child was removed from Canada with the consent of the petitioner is a self-serving plea that needs to be summarily rejected in the context of respondent No,l's plea that the petitioner is not at all entitled to the custody of the minor. Such a stand is also implausible as immediately after losing the custody of the minor, the petitioner approached the Canadian Family Court, who has ordered the return of the minor to Canada as well as the Canadian Police who have issued warrants of arrest of respondent No,1 for abduction of the minor.
11. It will be of benefit to refer here to Peggy Collin versus Muhammad Ishfaque Malik and 6 others PLD 2010 Lahore 48) wherein the facts are similar except that the battle was for the custody of a minor whose legitimacy was not in question. In the cited precedent, a Pakistani father removed the minor in France from the lawful custody of his Christian mother, who was French national and brought the minor to Pakistan without the consent and knowledge of his mother and in violation of a French Court's order allowing the custody of the minor to his Christian mother. While defending his action, the father took the plea that it was not in the welfare of the child to be in the care and custody of his Christian mother. However, this plea was soundly rejected by Asif Saeed Khosa J of the Lahore High Court (as he then was) who held that in the circumstances of the case, the right of the Christian mother to have the custody of minor could not be denied to her and observed as under:-- "it is proverbial that all is fair in love and war and in the present case it appears that respondent No,1 actually believes in that. When it came to falling in love with a Christian girl, religion did not matter to respondent No,l. When it came to marriage and setting down French nationality of the petitioner and France as an abode did not bother respondent No,
1. When it came to producing a child and bringing him up in France religious inclinations of his spouse and western culture did not make any difference to respondent No,l. For respondent No,l's religion, nationality and culture did not have much significance as long as it suited him but when the marital relations between respondent No,1 and the petitioner hit turbulence and ultimately came to a dead end in the war of sorts that ensued over custody of the child respondent No,1 has now found it to be advantageous and convenient to take shelter behind faith, nationality and culture. To respondent No,1, it may appear to be a fair ruse or stratagem in the war over custody of the child but I have found such volte-face on the part of respondent No,1 to be offensive to justice, equity and good conscience".
12. An objection has been raised to the jurisdiction of this Court by reference to the provisions of the Guardians and Wards Act, 1890, which provide a remedy to decide the question of the custody of a minor. Law appears to be settled that the writ of habeas corpus can be sought in appropriate cases where the minor has been illegally removed from the lawful custody of another person. The nature and scope of jurisdiction of this Court under section 491 of Criminal Procedure Code has been examined in Muhammad Khalil-ur-Rehan v. Shabana Rehana and another (PLD 1996 Supreme Court 633), where it was held that the jurisdiction of the court is not barred under section 491 Criminal Procedure Code, 1898 to pass an appropriate order with regard to the custody of a minor who has been illegally removed from the custody of a person on account of provisions of the Guardians and Wards Act, 1890.It was also held in the case of Nisar Muhammad v. Sultan Zarin (PLD 1997 Supreme Court 852) that the availability of another legal remedy is no bar and the remedy under the Guardians and Wards Act, 1890 for obtaining custody of a minor child is not a valid ground for refusing an application for habeas corpus by the parent or guardian of the minor who is entitled to have his or her custody, where the minor is being illegally detained by another person. In the instant case, there is no doubt that the minor was unlawfully removed by respondent No,1 from the lawful custody of his mother with the result that a direction in the nature of habeas corpus can be issued under section 491, Criminal Procedure Code, 1898 as well as by way of a writ of habeas corpus provided under Article 199 of the Constitution. It may be emphasized that this Court's habeas corpus jurisdiction in respect of the minor is being exercised not on account of the Canadian Court's order but independently as the circumstances of this case demonstrate that the minor has been illegally removed from the lawful custody of the petitioner. As such, the plea of respondent No,1 that the provisions of section 13 Civil Procedure Code, 1908, should be invoked merits no consideration. In any case, the said remedy cannot be regarded as efficacious enough to prevent this Court from exercising its constitutional jurisdiction in the circumstances of the case.
13. Another plea raised on behalf of respondent No,1 that he is entitled to the custody of the minor as he holds Pakistan nationality. However, this is not the whole truth as the minor is also a Canadian citizen who was born in Montreal, Canada, which is also his permanent abode. Such an argument has to be rejected outrightly as the question of nationality, being irrelevant, can in no way affect the right of a mother to reclaim her lost custody of a minor. With regard to the welfare of the minor, it was contended by the learned counsel for respondent No,1 that the petitioner, being a non-Muslim mother is unfit to raise the minor. As stated earlier, a non-Muslim mother is by no means disqualified to keep the custody of the minor. However, it was stated by the petitioner that she has every intention of retaining the present Muslim name of the minor and that she would ensure that the minor is brought up as a Muslim to which end she assured that the minor shall be imparted the basic Islamic teachings at the Islamic Centre in Montreal, Canada. She also stated that she would convert and become a Muslim if she finds it necessary for the sake of bringing-up the minor as a Muslim. Such a statement should be reassuring to respondent No,1.
14. In view of what has been stated above, this petition is allowed and the custody of the minor, Azan Sohail Niazi, is restored to the petitioner, who is free to take the minor out of Pakistan and back to Canada. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.