SHAH NAWAZ KHAN, C. J.-Miss Christine Brass (formerly Christine Iqbal), resident of 64 Erie Avenue Hamilton, Ontario, Canada, now having come to Peshawar, has submitted this petition under Article 199 (1)(bl(i) of the Constitution of Pakistan 1973, read with section 491 of the Code of Criminal Procedure with a prayer that the four minor children, namely, Rahim Iqbal, Sonya, Kristen Kim and Dean Iqbal born to her from Doctor Javed Iqbal, resident of 1-Shah Abad Kohat (respondent) be entrusted to her custody because these four children have been detained by the respondent illegally and in an unlawful manner.
2. Miss Christine Brass who is a Canadian by domicile and Doctor Javed Iqbal who is a Pakistani, were married in Ontario (Canada) on 22nd March, 1968. Rahim Iqbal was born to them on 29th March, 1969, Sonya (daughter) was born to them on 27th March, 1970, Kristen Kim (daughter) whose name is mentioned by the respondent in his written state--ment as Amina Kim Iqbal was born on 31st December, 1973 and Dean Iqbal (son) whose name is stated by the respondent in his written state--ment as Dean Ghulam A.I Iqbal was born on 13th April, 1976. In January 1978, according to the petition, the respondent and his four children moved to the State of Washington (U. S. A.) alongwith the petitioner, who instituted proceedings against him for divorce and custody of children. With effect from 14th day of February, 1978 those proceedings commenced and came to an end on 26th of February, 1979. The petitioner was awarded a decree for dissolution of her marriage and the custody of Sonya (daughter) and Dean (son) was granted to the petitioner and the custody of Rahim (son) and Kristen (daughter) was awarded to the respondent Doctor Javed Iqbal. The order and decree of the Superior Court of the State of Washington for King County-is Annexure "A" on the file.
3. According to the petition when respondent Javed Iqbal obtained access on 24-2-1979 to all the four children pursuant to the terms of the decree, be abducted the children by using Canadian Passports obtained as a result of a false affidavit given by him and he brought them over to Kohat.
It is further complained that the respondent has refused to allow the petitioner to communicate with the children and has denied her to the access to visit the children. It is further stated in the petition that in March, 1979, petitioner returned to live in Hamilton, Ontario (Canada) and she started living with her mother etc., in the house of her mother. Attached to the petition is Annexure 'A' which is stated to be a photostat copy of the decree of the superior Court of the State of Washington for King County. It is dated 26th February, 1979.
4. When this petition was presented in Court, it was ordered that notice be issued to the respondent for an early date and a bailiff of this Court be deputed to go to the respondent's house at Kohat and bring the children (four in number) named in the petition to be produced before the Court on 24th January, 1981. It was further ordered that if in the mean--time the petitioner wanted to see her children in Kohat, then she was at liberty to go to Kohat alongwith her brother-in-law and it was directed that the respondent will make it convenient for her to see and meet the children. This order is dated 18-1-1981. However, in the meantime the petitioner did go to Kohat and met her children On 24th of January, 1981 when both the parties appeared in Court, the four children had been brought by the bailiff of the Court and they were produced. The peti--tioner met the children, had a talk with them and then it was arranged that the respondent, who wanted to furnish a written statement, could do so on 26th of January, 1981. Learned counsel for the petitioner submitted that he would also file a rejoinder from the side of the petitioner. He was also allowed to do so and ultimately 1st of February, 1981 was fixed for, the hearing of the petition on which date the respondent was again directed to bring his children and produce them in Court. How--ever, 29th of January, 1981 was fixed in the meantime, for the purposes of enabling the petitioner to meet the children and talk to them and it was ordered that on that date the children would be produced in Court. They were produced on that date and the petitioner had sufficient time at her disposal to talk to the children.
5. In his written statement the respondent levelled some charges against the petitioner and stated that it would not be safe for the children to be entrusted to the petitioner, who according to him, is a negligent women, who cares more for herself than for the children. He submitted that during the period when the spouses lived together, the petitioner never took any interest in upbringing the children and that all these duties were performed by the respondent. He further complained that it was the petitioner who had filed the divorce proceedings in Washington because a "no cause divorce" was possible in Washington, U. S. A. And not in Canada where the petitioner and the respondent bad been living. The answering respondent submitted some school certificates which show that the children are receiving proper education.
6. In her rejoinder the petitioner submitted that the respondent had submitted himself to the jurisdiction of the superior Court of the State of Washington for King County. She further submitted that the respondent violated the decree set forth by the superior Court of State of "Washington for King County with respect to care, control and custody of the four children. Sher submitted that there was no question of her abducting the children from the custody of the respondent and added that the children were happy to talk to their uncle (petitioner's brother-in-law) and did so freely and without fear. Gifts sent by the petitioner were accepted and they were happy to have their photographs taken. She denied the allegation of the respondent and submitted that the petitioner had no lover.
7. We have heard the arguments addressed before us by the learned counsel for the petitioner and the learned counsel for the respondent. Learned counsel for the petitioner submitted that under sub-clause (1) clause (b) of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, High Court, may, on the application of any person, make an order directing that a person in custody within the terri--torial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.
He submitted that this provision applies to all forms of custody whether it is public or private. He further submitted that under section 491 of the Code of Criminal Procedure, it is provided that any High Court may, whenever it thinks fit, direct that a person illegally or improperly detained in public or private custody within such limits be set at liberty. He contended that a writ of Habeas Corpus is charac--terised by Ferris in his famous Treatise "The Law of Extraordinary Legal Remedies" as "to all intents and purposes the commencement of a civil action, a suit". He further submitted that Habeas Corpus, according to Ferris, is a civil, separate . Proceeding to enforce a civil right, a right to personal liberty, whether the restraint be by virtue of criminal or civil process." He submitted that the High Court is to see whether the minors are illegally or improperly detained in private custody or they are held in custody by the respondent without lawful authority or in an unlawful manner or not. Elaborating his argument he submitted that it is a settled law that withholding minors from the custody of the legal guardian, constitutes illegal detention justifying issuance of directions under section 491 of the Code of Criminal Procedure and relief under this section cannot be refused merely because another remedy may be open to a person. He placed his reliance on some authorities of India in support of his arguments. He made extensive reference to several authorities of the High Courts and Supreme Court of Pakistan, but those authorities relate to the spouses both residents and domiciled in Pakistan and the children also residing and born to them in Pakistan.
8. Learned counsel for the petitioner conceded that petitioner is the mother of the four minor children. She is a Canadian citizen and is a Christian. Respondent, according to him, has a dual nationality. He is a Pakistani as well as a Canadian. In any case neither the petitioner nor the respondent is or had ever been a citizen of U. S. A. While concluding his arguments learned counsel for the petitioner submitted that judgment dated 26-2-1979 is a foreign judgment within the meaning of section 2(6), C. P. C. And that the foreign judgment is not governed by the definition of `judgment' given in section 2(9), C. P. C. He submitted that a judgment under section 13, C. P. C.
Must be understood to mean an adjudication by a foreign Court upon the matter before it. He contended that admissibility of Annexure `A' could not be disputed on the ground that it is not certified in accordance with section 86 of the Evidence Act because it has been admitted by the respondent and thus he has failed to show that it suffers from any of the exceptions contained in section 13, C. P. C. He submitted that this judgment was conclusive and binding on the respondent and therein matters between parties have been directly adjudicated and these matters relate to the care, control and custody of the children. He concluded that respondent is, therefore, morally, ethically and legally bound by it. Referring to Chapter 15 of the English Conflict of Law by Clive M.
Schmitthoff, he submitted that the problem is, therefore, truly one of recognition and not of enforcement and that the statement that the English Court refused to enforce a foreign judgment does not imply that such a judgment is devoid of effect. He submitted that in the words of James L.
J. It would be impossible to carry on the business of the world if Courts refused to act upon what has been done by other Courts of competent jurisdiction. He urged that subject to compliance with certain requirements, the decision of a foreign Court imposes upon the parties against whom a decision is given a legal duty to obey it. To this legal duty corresponds the right of the persons in whose favour the decision has been given that the foreign judgment should be obeyed.
9. Meeting with the question of direct enforcement of foreign judg--ments, it is provided in that Book that, "it has been seen that in a common law the only method of giving effect and affirmative effect to a foreign judgment in the English jurisdiction is to institute an English action upon the foreign judgment in order to obtain a judgment upon a judgment."
10. Arguing from the side of the respondent, Mr. Zahurul Haq, Advocate contended that the petitioner who is a Canadian citizen came back to Canada after obtaining the dissolution of marriage decree from a Washing--ton Court and that she holds Canadian nationality. She being a Canadian national has submitted this petition in this Court wherein the sole relief sought is to get the custody of the four children and for a declaration that the present custody of the minors (as they are 'with their father, i.e. The responnent) be declared as illegal and this relief is sought solely on the basis of the decision of the superior Court of Washington dated 26-2-1979. He submitted that in the first place Annexure "A" is a copy of the decree and is not a judgment and even if it be treated as judgment, it has no binding effect in Pakistan, because such judgment was to be made a cause of action for a suit in a Court in Pakistan and if the Pakistani Court affirms it, it is only then, that it becomes enforceable in Pakistan. He submitted that a foreign judgment acquires the status of a decree in a Pakistan Court and the judgment of the foreign Court is liable to attack on the basis of exceptions enumerated in section 13 of the Code of Civil Procedure. The petitioner without resorting to civil action in a competent civil Court in Pakistan for converting the judgment of a foreign Court into a decree, instead came directly to the High Court and made that order (Annexure A) as a foundation for securing a declaration that the custody of the children with the respondent is illegal. He submitted that it was not permissible and in support of his argument he placed his reliance on an authority reported as Gangulf' Engineering Ltd. v. Sm. Sushila Bala Dasi and another (AIR 1957 Cal. 103) He submitted that assuming but not conceding that the petitioner could bring a suit in a civil Court within specified period under Article 117 of the Limitation Act, still the petitioner would not succeed for the reason that Annexure "A" is only a decree of the Court of Washington and a suit on the strength of section 13, C. P. C. Cannot succeed in a civil Courtin Pakistan unless the judgment is also attached with the decree so that the propriety of the judgment may be scrutinised in the light of exceptions to section 13, C. P. C. He placed his reliance on a Dacca authority reported as Fazal Ahmad and others v. Abdul Bari and another (PLD 1952 Dacca 155).
11. Assuming for the sake of argument that the order/decree of the superior Court of Washington dated 26-2-1979 conclusively decides the issue of dissolution of marriage between the petitioner and the respondent, but its finality cannot be extended to the collateral finding of the Court in respect of the custody of the children because the order in respect of the custody of children is an order which in its very nature cannot be final. In McKee v. McKee (1951 A C 352), the Privy Council observed that, "such an order has not the force of a foreign judgment. Comity demands not its enforcement, but its grave consideration. This distinction, which has long been recognized in the Courts of England and Scotland, rests on the peculiar character of the jurisdiction and on the fact that an order providing for the custody of an infant cannot in its nature be final".
12. It was a case of a husband and wife, both American citizens and separated. They had agreed in writing that neither of them, without the permission of the other, would remove their infant son out of the U. S. A. That written agreement was confirmed by the Court. Subsequently the same Court, on the application of both parties, awarded custody to the wife. About five years later the husband took his son to Ontario (Canada) without the leave or knowledge of his wife. The wife thereupon took Habeas Corpus proceedings in Ontario. The trial Judge after a careful review of the circumstances, awarded custody of the infant to the husband, but his decision was reviewed by the Supreme Court of Canada. The Privy Council ultimately restored the order of the trial Judge. In that case also the two charges levelled against the husband were that he had broken the agreement with his wife and had flouted the order of the Californian Court. The trial Court after taking into consideration all the aspects concluded that in the light of the other circumstances the interest of the infant would best be served by leaving him in the custody of his father and that the order of the Californian Court was a factor of great importance, but it was not decisive. (McKee v.
McKee).
13. In Cheshire's Private International Law, Eighth Edition at page 461 under the caption "Foreign Guardians not confirmed by the English Court" it is observed that, "if a foreign guardian has not been confirmed in his office by the English Court the question arises whether he is entitled to exercise in England those rights over the person and property of his ward that are recognized by English internal law." It is further provided that, ``what he does within the limits of English internal law will be recognized as validly done provided that his authority has not been challenged ; but if his position or his authority is challenged, then, as in the case of an English guardian, it lies within the discretion of the Court whether he, shall be replaced by another person or whether his acts or proposed acts shall be approved. Perhaps the only difference in this respect between a foreign and an English guardian is that the Court would be more ready to displace the former than the latter".
14. In a Karachi case reported as Mrs. Mosselle Bubbay v. Khawaja Ahmad Said and others (PLD 1957 Kar. 50) a similar question had arisen. A jewess Indian girl had married an Indian Muslim and their marriage was dissolved by the High Court of Calcutta in 1952 and the custody of the minor was given to the mother. However, the father managed to bring the children to Pakistan in violation of the decree of Calcutta High Court. The mother then came to Pakistan and filed a Habeas Corpus petition, but the same was dismissed by the Karachi High Court. A Division Bench of the Karachi High Court while disposing of that petition placed reliance on two Indian rulings, one reported as Subbarathnammal v. Seshachala Naidu (AIR 1931 Mad. 478) and the other cast; from Indore Bench reported as Abbasi S. M. v. Sultan Hamid Khan (AIR 1955 N U C (Madh. Bha.) 3697).
15. The question is as to what is the rule of Private International Law in a situation like this, where the mother is a Canadian Christian and the father is a Pakistani Muslim and enforcement and execution of a decree/ order of a Court of United States, is sought in Pakistan when admittedly a the time of filing the Writ petition neither the petitioner nor the respondent was and is living . In the United States of America nor the children are living there. The petitioner, as indicated above, said good bye to Washington where too she had temporarily gone and came back to Canada where she has a national domicile. The respondent left America either before or immediately the decree (copy Annexure A) was passed and went to Canada, where from he came to Pakistan. The children also came with the father to Pakistan and they are living in Pakistan. The father is subject to Muslim Personal Law and he is the natural guardian of the minors. Under the Private International Law it is the welfare of the children which govern and control the jurisdiction of the Court when a case is brought before it.According to Halsbury's Laws of England, Volume 7 page 126 para. 227, "if any dispute arises between parents domicile abroad concerning the custody of their infant child resident in England, the English Court is bound to treat the welfare of the infant as the paramount consideration, whatever orders may have been made by the Courts of any other country of which the infant is a national". These observations have been made with reference to Privy Council finding in McKee v. McKee. Similar observation has been made in Halsbury's Laws of England Third Edition Volume 12 at pages 356-357. It is observed that the paramount consideration of the Court in exercising its discretion is the children welfare. The Court will consider a foreign order as to custody, but only subject to the paramount considera--petition of the welfare of the child. The welfare of the child, the comfort, the health and the moral intellectual and spiritual welfare of the infant are the matters for consideration. The father has the right to determine in what religion his infant child should be brought up and this right of the father continues after his death, even if the mother is of different religion. In that view of the matter it can be held without any difficulty that the minors in this case are Pakistanis and it is their welfare which is of paramountimportance. The respondent (father) being a Muslim has a legal right both under the domestic law as well as International Law to see that his children are brought up in the Muslim faith. In this way the order/decrees (Annexure `A') should not stand in the way. As indicated above under the personal law of the respondent, i.e. Muhammadan Law, he alone is the natural and legal guardian of his minor children and even during the period of Hizanat, the constructive custody of the children remains with the father.
Reference can be made to the authority reported as Muhammad Sadiq v. Mrs. Sadiq Safoora (PLD 1963 Lah. 534). Even the custody of the mother does not detract from the father's right to supervision and control the minors. Therefore, if the custody of the children with mother takes them to such a position that the father cannot exercise his control and supervision over them, then the mother will lose the right of custody. Reliance can be placed on four authorities of Pakistan reported as Muhammad Bashir v. Mst. Ghularn Fatima (PLD 1953 Lah. 73), PLD 1956 Lah. 484, Mst.
Atia Warts v. Sultan Ahmad Khan and others (PLD 1959 Lah. 205) and Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi (PLD 1938 Kar. 150).
16. In the instant case the admitted facts are that the petitioner is domiciled in Canada and she is residing there. She is outside the juris--diction of the Washington Court and is definitely outside the jurisdiction of the High Court in Pakistan. In the Karachi case reported as PLD p 1957 Kar. 50 an exactly similar situation had arisen where the petition ha not been filed by the mother under the Guardians and Wards Act, he had been filed under the Constitution for a writ in the nature of Habea Corpus. In that case similar allegations had been made by the mother who was the petitioner, as have been made by the present petitioner in the instant case. The petitioner Christine Brass admittedly adheres to the Christian faith. She is a national of Canada and is domiciled there.
She is on a temporary visit to Pakistan. Respondent Doctor Javed Iqbal is a Muslim national of Pakistan. Therefore, without going into the question regarding the various allegations that have been made by the petitioner and denied by the respondent and vice versa, it may be possible to dispose of the petition on the ground that the decree/judgment (Annexure `A') as produced in this Court has been passed by a superior Court of Washington (U. S. A.) but presently neither the petitioner nor the respondent nor the minor children are the citizens of U. S. A. Nor any one of them is living in a place under the jurisdiction of Washington Court.
17. In the, Calcutta case reported as AIR 1957 Cal. 103, a Division Bench of the High Court had observed that, "the general principle of law is that any decision by a Foreign Court or tribunal or a foreign quasi --judicial functionary is not enforceable in a country unless such decree or decision - is embodied in a decree of the Court of that country. Thus ordinarily no decree or order of adjudication by a Pakistani authority would be binding in India 'unless such decree or order of adjudication is given additional force by a decree obtained in India by the interested party''.
18. In the instant case the main foundation of the petitioner's relief is the copy of the decree/judgment of the Washington Court (Annexure'A') which decree or judgment has not been given additional force by a decree obtained in Pakistani' by 'the petitioner. Apart from that the Court will also have to take into consideration the point of view of the welfare of the minors.
Therefore, it will be against the intention of law if the minor children residing in Pakistan under a Muslim father are entrusted to the petitioner who is a Christian and who is living outside Pakistan, to be taken to Canada. It would, therefore, be sufficient in itself to show that it would rather be in the interest of the minors to be left in the custody of their father. We are of the view that the request of the petitioner for declaration that the minors are in the unlawful and improper custody of their father in Pakistan is not maintainable. "
19. We are, therefore, of the view that it would be improper to give the custody of the minor children to the Christian mother who is a national of Canada and is residing there. This is apart from the fact that no order of the Canadian Court is under violation. This petition is, therefore, dismissed but we make no order as to costs.