Muhammad Ali J,-. Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has assailed the vires of order dated 21.06.2017 passed by the learned Additional Sessions Judge/ Child Protection Court, Rawalpindi (hereinafter referred to as the "Court"), whereby the application filed by respondents No.1 & 2 under Section 23(4) of the Punjab Destitute and Neglected Children (First Amendment) Act, 2007 ("Act") was accepted and the custody of a child Wajiha Fatima was ordered to be handed over to respondents No.1 & 2 taking her custody from the petitioner.
2. This unfortunate matter relates to the custody of 6-1/2 years old abandoned child Wajiha Fatima ("child"). On 08.01.2014 Jamil Shah, Assistant Sub Inspector, Police Station City, Attock handed over the child to the petitioner under the orders of the learned District & Sessions Judge, Attock. The efforts were made to trace out parents of the child, on 13.01.2014 a proclamation was published in the 'Daily Jang', Rawalpindi and public was also requested through various TV channels to furnish information regarding the parents of the minor . At that time, the minor was only two and a half years old and since then she is in continuous custody of the petitioner .
3. The petitioner is a Child Protection Officer at Punjab Protection and Welfare of Destitute and Neglected Children Bureau, Rawalpindi (hereinafter referred to as the "Bureau "). Respondents No.1 & 2 (hereinafter referred to as the "respondents " where the context so requires) viewed pictures of the child on Facebook and decided to adopt the child.
4. The respondents established contact with the petitioner and after meeting the child for a couple of time, they filed a petition for the custody of the child before the Court on 24.02.2014. The matter was contested by the petitioner as she was interested in having the custody of the child and she filed an independe nt petition requesting the Court that she be given permanent custody of the child. During these proceedings, a person namely Muhammad Kashif, assuming the child to be his missing daughter , filed an application before the Court for custody of the child. The Court ordered for requisitioning the FIR lodged by said Kashif regarding abduction of his daughter and directed the DNA test to be conducted to ascertain paternity of the child. The DNA report came in negative, as a result Muhammad Kashif stopped pursuing the matter .
5. Thereafter, the Court after assessing respective stance of the parties vide order dated 20.12.2014, declined request of the respondents to have custody of the child The order was challenged by the respondents by filing a review petition under Section 23(4) of the Act, which was dismissed by the Court on 17.04.2015 and the custody of the child was ordered to remain with the petitioner . The order was challenged by filing a constitutional petition (W.P. No.1449 of 2015) before this Court. The petition was dismissed after hearing the parties, vide judgment dated 01.07.2015. The respondents further assailed the judgment before the august Supreme Court of Pakistan in a civil petition for leave to appeal, which was accepted, the petition was converted into appeal and was disposed of with the consent of the parties on 23.02.2017. The Apex Court by setting aside the judgment and orders under challenge, passed a direction to the trial Court to decide the matter of custody of the child finally in terms of the Act, after hearing the parties and on the basis of material placed before the Court by recording evidence within a period of three months, uninfluenced by the order dated 20.12.2014.
6. In the post-remand proceedings, the respondents filed a formal application for the custody of the child, it was contended in the petition that the welfare of the child lies with the respondents; that respondent No.1 utilized all his resources being a prominent politician and a Senator to trace out the parents of the child and during this time the respondents have been interacting with the child and gave her gifts on different occasions; that in case the custody of the child is handed over to the respondents, the child will be brought up in the most suitable conditions on account of the social status of the respondents, their educational background and financial well-being; that the peaceful and conducive atmosphere in the house of the respondents is no match to the circumstances in which the petitioner is living.
7. The learned trial Court after procuring a reply from the petitioner , framed necessary issues from divergent pleadings of the parties. The evidence from either side was recorded and the Court after hearing the learned counsel for the parties accepted the application of the respondents vide order dated 21.06.2017 and the custody of the child was directed to be handed over to the respondents, hence this petition.
8. The learned counsel for the petitioner contends that the petitioner established that it was in the welfare of the child to live with her; that the petitione r is an educated lady having a degre e of M.Sc Sociology and is a Government Servant serving in grade-17; that the petitioner despite 12 years of her marriage is still issueless and can look after the child with undivided attention; that the child has developed attach ment with the petitioner and it is not in the interest of the child to disturb her custody at this stage, when she is living happily with the petitioner; that the petitioner and her husband are earning hands and can easily afford to meet all the expenses of the minor and provide her best education; that responde nt No.1 being a senior citizen in advance age of 75 years suffering from heart ailment is not a suitable person to have custody of the child; that respondent No.1 having his own daughters has not shown any inclination towards them and has spent most of his life without being in touch with them; that the impugned order was passed without considering the welfare of the child in its true perspective.
9. Contrarily , the learned counsel for the respondents by supporting the impugned order submits that the Court rightly granted custody of the child to the respondents who are the best suited persons to have her custody , keeping in view their social status and being well placed individuals in the society; that respondent No.1 is a known political figure, he is a Senator , a writer and is financially very stable; that the respondents have good educational background and if the child is brought up in the custody of the respondents, she will groom into a better person; that the conduct of the petitioner and the manner she kept the child in an illegal way disentitles her from the custody of the child; that the atmosphere in the house of the petitioner is not suitable for the child coupled with her limited financial resources compared to the resources of the respondents, it is not in the welfare of the child to live with the petitioner .
10. Arguments heard. Record perused.
11. According to the preamble of the Act, the Punjab Destitute and Neglected Children Act, 2004 (XVIII of 2004) was amended for the purposes enumerated in the Act, the Act was promulgated on 30 of June, 2007.
The 'child' is defined in Section 3(e) of the Act as follows: -th "3(e) "Child" means a natural person who has not attained the age of eighteen years."
The 'destitute and neglected child' is defined in Section 3(k) of the Act. The child in the case in hand falls in the category mentioned in sub-clause (ii) of Section 3(k) which reads as under: - "3(k) "Destitute and neglected child" means a child who: (i).............................
(ii) Is found without having any home or settled place of abode and without any ostensible means of subsistence;"
The entrustment of the custody of destitute and neglected child is dealt under Section 28 of the Act. The Court is required to see as to who is the 'suitable person' to look after the child until the child attains the age of eighteen years or in exceptional cases for a shorter period. The relevant portion of Section 28 of the Act reads as under: - "28. Entrustment of the custody of destitute and neglected child.
(1) If the Court is satisfied that the child brought before it, is a destitute and neglected child and that it is expedient to deal with him, the Court may order that he be admitted to a child protection institution or his custody be entrusted to a suitable person, who is able and willing to look after the child, until such child attains the age of eighteen years, or in exceptional cases for a shorter period." (Emphasis Supplied)
The 'suitable person' is defined in section 3(t) of the Act which reads as under: - "3(t) "Suitable person" means a person suitable for the custody of the destitute and neglected child."
The definition of a 'suitable person' in the Act is not comprehensive.
The word 'suitable person' is defined in Section 2 (z) of the Khyber Pakhtun Khawa Child Protection and Welfare Act, 2010, as under:- "2 (z) "Suitable Person" means a person declared by the Court suitable, in the best interest of the child, for entrustment with the custody of a child at risk".
This concept of 'child at risk' is used in various foreign enactments relating to the protection and custody of the children e.g. in the United Kingdom in "The Children and Families Act, 2014", the person to be appointed for custody of child has to be a person who should be involved in the child' s life in a way that does not put the child at risk of suf fering harm.
12. In context of the Act, for custody of a destitute child, a 'suitable person' would mean a person who can properly look after the child, who is involved in child' s life, who can act in the best interest of the child, where the welfare of the child lies and the child is not at risk of suf fering harm.
13. The Court was required to see who was a suitable person for the child keeping in view respective stance of the parties in juxtaposition. The Courts exercise 'parental jurisdiction ' in the matters of custody of the child, be it a contest between the parents, between a parent and others or a contest where none of the parents are involved.
This jurisdiction is derived from the Latin principle ' Loco Parentis' which is defined as under: "In the place of a parent" or "Person or entity assuming the normal parental responsibilities for a minor ."
14. On the touchstone of these determining factors, the merits of the case are to be examined. There are two rival claimants of a child, on one side, there is an elderly rich and educated couple and on the other side, a married, childless, educated woman who is a Government servant and in whose custody the minor has remained for a considerable period of time. The Court is required to see the paramount consideration where the welfare of the child lies, taking into consideration her physical, moral and mental well-being and the future prospects. This is not an ordinary case for custody of a child, here the matter relates to a child whose parents are not known.
15. The respondents in order to substantiate their contention have appeared in the Court as AW-1 and AW-2, they more or less reiterated the stance taken by them in their petition. During the cross-examination, respondent No.1 admitted that respondent No.2 is his second wife and that he has two daughters from his first wife, who are living abroad since four decades. It could be safely concluded from the evidence of respondent No.1 that no sincere effort was made by him to see his real daughters or to reunite with them. There is nothing on the record to suggest that respondent No.1 being their father has played any role in their lives or tried to get in touch with them to find out their well-being. Undeniably , respondent No.1 is detached from her real daughters.
16. Admittedly, respondent No.1 who is 75 years of age and is suffering from heart ailment, his capacity to look after the minor would diminish with every passing year. The respondents are permanently living in Karachi, it was admitted by respondent No.1 that being a politician he remains away from his residence on account of his political engagements and that respondent No.2 also remains pre-occupied in running her own educational institution.
Similarly, respondent No.2 in her cross-examination stated that respondent No.1 during Senate Sessions comes to Karachi on Friday evenings and goes back on Monday mornings and he remains in Karachi only during the period when there is no Senate Session. In the circumstances, the possibility of the child staying without care and supervision of the respondents for a considerable period of time cannot be ruled out.
17. On the other hand, taking circumstances of the petitioner into consideration, the child is residing with the petitioner for the past three and a half years. The petitioner is an educated lady having Masters degree in Sociology and is a Government Servant, serving in grade-17. The petitioner being a married woman is admittedly issueless for the past 12 years. In this way, she can channelize all her energies towards bringing up the child in a better manner and the child who was present in Court is apparently enjoying good health. The child is doing well in her studies as is evident from her academ ic record. The psychological well-being of the child is very important, the child has not seen her real parents and considers the petitioner as her mother . In case her custody is disturbed, it is certainly going to have an adverse effect on her mental health. Keeping in view, her tender age, certain questions would arise in her mind which perhaps no one would be in a position to answer and she may not be able to express what she would undergo if she is detached from the petitioner .
18. The child since her infancy has been looked after by the petitioner as her own daughter and she remained center of attention for her. While exercising the parental jurisdiction, amongst other factors, it is important to note that the child recognizes the petitioner as her mother and is emotionally attached to her. In case the child is separated from the petitioner , it would result in emotional disturbance for the child which would be detrimental to her health. Nothing has come on the record which could suggest that the petitioner is disqualified to have custody of the minor and is not a suitable person.
19. In the case of Muhammad Ashraf v. District Coordination Officer, Lahore and 2 others (PLD 2006 Lahore 219) while dealing with a matter of custody of an abandoned child, the child was allowed to remain with a person who was looking after the child for the past 10 months, taking into account emotional attachment of the child. The welfare of the minor includes material, physical, emotional and the psychological well-being as held in the case of Abdul Razzaque and 3 others v. Dr. Rehana Shaheen and another (PLD 2005 Kar 610).
20. The learned trial Court while passing the impugned order seems to be over impressed with the monetary resources of the respondents. This is not the only criterion for the welfare of the child. The Court should decide such a matter by evaluating all the atten ding factors. In the case of Abdul Majeed v. Additional District Judg e, Talagang and 2 others (2009 CLC 1143), it was held that the welfare of the minor was not only monetary but it was emotional as-well and the emotional welfare of the minor was much more important than the fiscal aspect.
21. There is yet another aspect of this case, a child is the 'face of the society' and a famous quote that 'the society is judged by the way it treats its children' has to be borne in mind. The lapse, if any, on the part of the petitioner while retaining custody of the child at the initial stage can be ignored keeping in view the fact that the petitioner shielded the child from the irony of her fate when she was ruthlessly thrown at the mercy of the society and the petitioner whole heartedly embraced the child.
22. The efforts made by the respondents in getting custody of the child are commenda ble but these efforts cannot outweigh the welfare of the minor which tilts in favour of the petitioner in the atten ding circumstances of the case.
The petitioner has been vigorously pursui ng the matter which shows her inclination and love for the minor and she meets the requirements of an able and willing person. Borrowing the definition of a 'suitable person' from KPK Child Protection and Welfare Act, 2010, as mentioned above, the petitioner fits in such criteria being a person who is involved in the child' s life in a way that does not put the child at risk of suffering any harm. Keeping in view the fact that the child is a growing girl, she needs guidance and care of a motherly figure for her moral grooming, considering this aspect also, it is found that it is in the interest of the minor that she remains with the petitioner . The impugned order in the circumstances is found to be illegal and is not sustainable; the order was passed in oblivion of the factors highlighted above.
For the forgoing discussion, this petition is allowed . The impugned order dated 21.06.2017 is set-aside. The custody of the child shall remain with the petitioner . The petitioner shall furnish a surety bond in the sum of Rs.200,000/- within 45 days of the passing of this order with the trial Court. The bond shall be strictly in accordance with the requirement of Section 28(2) of the Act. The petitioner shall ensure that the child is not exposed to any danger and shall not be compelled to do any work for the petitioner or her family . The petitioner shall produce the child before the Court after every three months with a comprehensive report about her progress. The Court shall examine if the child is being properly looked after, the Court shall record statement of the child to ascertain her well-being and shall also make an observation that the directives given in Sections 28 of the Act and undertaking given in the bond are followed by the petitioner .