FAHIM AHMED SIDDIQUI, J: Through the instant petition, the Petitioner has assailed the order dated 12.10.201 5, passed by the learned Additional Sessio ns Judge-VIII, Karachi South, in Crimina l Miscellaneous Application No, 1418 of 2015, whereby the application under section 491, Cr .P.C., was dismissed.
2. Precisely the facts of the case of the Petitioner , who was a divorcee having three children from his first husband, was married to the Respondent No,1 on 14.07.2008 and out of this wedlock one male child namely Master Raem Ahmed was born on 30.07.2009. The custody of the minor since birth was remained with the Petitioner . The Respondent No,1 by profession is a businessman and for business purposes most of his time spent in Dubai. In March, 2015 due to some personal disputes, the Petitioner has left the house of the Respondent No,1 along with her children, however , due to a family settlement, the Respondent No,1 was allowed to take custody of the minor as and when he would visit Karachi. In May, 2015, the Respondent No,1 visited Karachi and took the custody of the minor for some days, but did not return the custody and took the minor to Dubai without permission of the Petitioner . The Petitioner lodged complaint with the police and in result of the said complaint, it came to the knowledge of the Petitioner that the Respondent No,1 has obtained an ex parte Guardian Certificate from the Court of Family Judge-XVIII, Karachi East in G&W Application bearing No, 1740 of 2015, fraudulently wherein Respondent No,1 did not mention the correct address of the Petitioner and also produced affidavit of no objection of Petitioner with her forged/manipulated signature. On 29.09.2015, the Petitioner has filed an application under Section 12(2) of the Civil Procedure Code, 1908, which is now decided and Guardian Certificate issued to Respondent No,2 is cancelled and subsequently the Guardian and Wards Application was also dismissed. On the same day, the Petitioner has also filed an application under section 491, Cr.P.C. for producing the minor before the Court and to hand over the custody of the minor to the Petitioner , however , as mentioned above, the said application was dismissed.
3. Mr. Noman Jamali, the learned counsel for the Petitioner , after describing the whole background submits that the habeas corpus petition of the Petitioner/applicant was wrongly dismissed by the learned Sessions Judge without considering the age of minor . According to him, at the time of filing of habeas corpu s petition, the minor was 6 years old, as such he was within the period of 'Hizanat', and the custody is required to be given to mother . In this respect, he took reliance from PLD 2004 Supreme Court 1 and 2015 SCMR 731. He submits that even the anxiety of the Petitioner that minor would be taken out of Pakistan was not considered. He submit s that in spite of the fact that the order dated 11-11-2015 and 16-11-2015 were in field but the Respondent No, 1 has taken away the minor to Dubai.
According to him, for the purpose of shifting the minor out of Pakistan, the Respondent No,1 has deceitfully filed a Guardian and Ward case and obtained the order of custody behind the back of the Petitioner . He submits that although there was no prayer regarding this aspect, but the learned Family Judge in the final order allowed the Respondent No, 1 to take minor out of Pakistan. He submits that when Petitioner came to know about the ex parte order , she filed an application under section 12(2), C.P.C. but when the said applica tion was allowed, the minor was already taken away by the Respondent No, 1 out of Pakistan. He submits that the Respondent No, 1 married with the Petitioner covertly , as he wanted to keep it secret from his father and other family members. According to him, on the same account by mutual consent, the parentage of minor was changed by the Petitioner . He submits that even after divorce, there was a sort of agreement and the Petitioner has allowed the Respondent No, 1 to visit the minor whenever he came to Karachi. He submits that the Petitioner came to know about the of the Respondent No, 1 when she saw the minor with a woman namely Bushra Nasir in an eatery . She protested on the spot and also called police but the Respondent No, 1 came there and threatened the Petitioner . According to him, after that incident the Petitioner alarmed and she tried to get back the minor and then she came to know about the ex parte order . He submits that Mst. Bushra Nasir was the friend of Petitioner but subse quently the Respondent No, 1 developed intimacy with her and she is the core cause of breakup between the Petitioner and Respondent No, 1.
He submits that after divorce, the Respondent No, 1 married with Mst. Bushra Nasir and the stay of minor with that lady will not be proper for the welfare of minor. He submits that on his request, this Court has issued directions for red notice for Respondent No, 1 and yellow notice for minor and. now it is the duty of this Court that the minor should be brought back to Pakistan. According to him, the Respondent No, 1 with intention to achieve its purpose has deceitfully issued another passport, which was used to shift the minor out of Pakistan.
4. The learned counsel for the Petitioner further submits that order dated 16-11-2015 was passed on the basis of the statement of the consul for the Respondent No, 1 and the said order was well communicated to the Respondent No, 1 but he violated the same. He submits that the instant petition is very much maintainable, as the order passed by the learned Sessions Judge is questioned in the instant petition. In this respect, he took reliance from PLD 2007 Lahore 293 and 1988 SCMR 1804 . According to him, the Respondent No, 1 has acted illegally and a person cannot get advantage of his illegality . Regarding this point, he relied upon 1989 MLD 2209 .
5. While continuing his arguments, the learned counsel for the Petitioner submits that the Respondent No, 1 was trying to remove the minor from Dubai to USA, as such the Petitioner herself has approached the Dubai Court, where she succeeded in getting travelling ban on the minor . He submits that the availability of boarding passes, filed by the Petitioner , are sufficient to throw light about the act of the Respondent No,
1. According to him, the Respondent No, 1 is trying to add further complexity in the matter by removing the minor from Dubai to USA.
According to him, Dubai Court passed a detailed order due to which the Responden t No, 1 could not take the minor out of Dubai and that is why he has approached to this Court so that the travel ban may be removed.
6. Mr. Shams-ul-Islam, the learned Consul for the Respondent No,! assailed the entire case of the Petitioner .
According to him, the Petitioner has proved herself as an improper person for the custody of minor . He submits that while passing any order , the prime consideration should be given to the welfare of minor and not the personal desires of the parties. He submits that the petitioner herself has admitted that she had changed the father name of the minor and he categorically states that his client has never given any consent for changing of the father's name.
He further submits that the Respondent No, 1 has to approach the court of law for changing the parentage of minor and for the same purpose he had to perform a DNA fingerprinting. According to him, the wrong father name of the minor was corrected under a decree of court and then he obtained a new passport for the minor after cancelling the older one. He submits that there was no deceitful action by the Respondent No, 1 and whatever he has done, it was in accordance with law .
7. While continuing his arguments, the learned counsel for the Respondent No, 1 submits that as the name of father of the minor was unauthorizedly changed by the Petitioner; therefore, under the advice of previous counsel, the Respondent No 1 approached Family Court for a `Guardianship Certificate' which was least necessary as the Respondent No, 1 is the natural guardian of the minor . Regarding the statement of the consul of Respondent No, 1 before this Court for not shifting the mino r from Pakistan, he contended that such statement was given without the instruction of Respondent No, 1 and even no consultation was made with him. He emphatically submits that the Petitioner has already approached Dubai Court for the custody of minor , where she remained unsuccessful against which she filed an appeal, which is pending now. Simultaneously , she engaged the Respondent No, 1 before this Court and under the settled law; the Petitioner cannot continue the instant proceedings when she had already approached Dubai Courts for the same purpose. He further submits that the minor is studying in a highly reputed Pakistani School in Dubai and Responden t No, 1 is spending huge amount on his education. According to him, the Petitioner is having no resources to provide such quality education in Pakistan. He submits that the Petitioner had three grown up children and their atmosphere is not conducive for the better upbringing of the minor , as such welfare of minor lies with the Respondent No, 1 In the end, he requests for dismissal of the instant petition.
8. I have heard the arguments advanced at bar and have gone through the record placed by either side. The Petitioner was previously married with one Sami Ahmed from whom she already had one son and two daughters.
The Petitioner after divorce from her previous husband, remarried to the Responde nt No, 1 and during this marital bond, the minor namely Raem was born. It is indeed astonishing that despite the fact that she was no more the wife of 'Sami Ahmed', she mentioned his name as father of Raem. The learned counsel for the Petitioner reasoned it out by submitting that it was under a mutual arrangement and this fact was in the knowledge of the Respondent No,
1. According to him, the Respondent No,1 was willing to conceal his marriage with the Petitioner especially from his family members and for the same reason, he avoided to give his name to the minor . Even if this fact is admitted, then again a question arises why Petitioner agreed to such a term when she was not the wife of the person with whom she was naming her child, which actually amounting to a profanity for herself. The learned counsel for the Respondent No, 1 during course of arguments have pointed out that during subsistence of marriage of the parties; they have travelled frequently with the whole family including the children of the Petitioner from her previous husband. The family during their visits to Dubai must have been staying with the Respondent No, 1 and this fact must have been in the knowledge of all the acquaintances of the Respondent No, 1 in Dubai. I am of the view that in this backdrop, it is also not intelligible that the Respondent No, 1 intend ed to conceal his marriage with the Petitioner and in such a situation, the mutual consent seems to be irrational and illogical. At the most, it can be said that at some time during continuance of the marriage, this fact might have come in the knowledge of Respondent No, 1 but it does not mean that it was with his consent.
9. The Petitioner raised the question of removing of minor Raem from the jurisdiction of this Court. It is contended that he was removed illegally and in a deceitful manner . It is an admitted position that the Respondent No, 1 has filed an application for guardianship certificate before the concerned Family Judge in which he was succeeded and the learned Family Court also allowed the Respondent No, 1 to take the minor outside the country . Apparently , the minor was taken to Dubai due to such permission granted by the Family Court. However , it is pertinent to mention that being natural guardian, it was not necessary for the Respondent No, 1 to seek a guardianship certificate. I am of the view that being a natural guardian, he is competent to take minor with him unless there is a restraining order from the Family Court of law. It is worth mentioning that the Petitioner could not point out any restraining order from the court of law regarding removal of minor from Pakistan. Nevertheless, the chapter of the said 'guardianship certificate' is now closed at the same has been cancelled on an application filed by the Petitioner under section 12(2), C.P .C.
10. Besides the fact that there was no restraining order , an aspect of the case is considerable. The previous counsel for the Respondent No, 1 has given a statement before this Court that the minor would not be removed from the jurisdiction of this Court. Such a statement of the counsel of Respondent No, 1 was recorded and the learned counsel for the Petitioner considered the same sufficient, as such no specific direction or restraining order was passed at that time. However , impliedly it may be considered that the Respondent No, 1 was restrained to travel with minor outside the country . But another aspect is considerable that it is contended on behalf of the Respondent No, 1 that the aforesaid statement was given by his previous counsel without seeking instructions. The contention of the Respondent No, 1 bears weight as the said statement was given by the previous counsel spontaneously and at that time, the Respondent No, 1 was not present in the Court. However , as long as the power of advocate is not cancelled, the act done by him in a proceeding is binding on the party . But, it is also worth noting that the Petitioner did not file a contempt application, as such no proceeding for contempt of court was initiated against the Respondent No, 1.
11. On 8 January 2016, it was brought into notice of this Court by the Inspector Legal of FIA that the child was taken out of Pakistan on 24-12-2015 on a new passport but on that date, the learned counsel for the Petitioner sought adjournment to acquire instructions to seek remedies and further action which may be available. On the next date of hearing, the learned counsel for the Petitioner filed C.M.A. No,405/2016 in which, he sought the relief of issuance of red notice for Respondent No, 1 and yellow notice for the minor to produce the custody of minor with the assistance of the Interpol. Thereafter matter was adjourned for so many dates but neither a separate criminal case was initiated nor a contempt application was filed. The counsel for the Petitio ner was harping the same string during that period for issuance of red and yellow notices and ultimately such order was passed on 08-04-2016.
However , the requisite red warrant or red notice for Respondent No, 1 could not be issued as the same can only be issued for a fugitive accused. What I understand that the intention of the Petitio ner was not to get arrested the Respondent No, 1 but she was interested in issuance of yellow notice for minor Raem. It is worth mentioning that the purpose of yellow notice is to get help of Interpol for tracing and locating of a missing person including a minor and in the instant case minor is not missing and this fact was very much in the knowledge of the Petitioner . It is worth noting that the minor has travelled to UAE earlier with his father . If it amounts to 'parental abduction' then the 'Hague Convention on The Civil Aspects of international Child Abduction' may play a part for bringing back the minor to Pakistan. Although, Pakistan has signed the said treaty in recent past but the UAE has yet not signed the said treaty . Both the counsel during course of arguments also concede that there is no treaty pertaining to parental abduction between the two states. I am of the view that when the Respondent No, 1 is not wanted in any criminal case and there is no treaty between Pakis tan and UAE regarding the issue, the order of issuance of red and yellow notices becomes infructuous.
12. Although, the Petitioner was pressing the instant petition but at the same time she initiated a tug of legal battle before the concerned court in Dubai. She filed a petition for custody of minor in Dubai, where she got some relief as she succeeded for visitation or temporary seeing of minor at Al Barsha Child Protection Centre, Dubai. It is important to note that the Petitioner filed Case No, 707/2016 before the Dubai Court on 01-08-2016 where the first date of hearing was fixed on 02-08-2016 and on 03-08- 2016, a travel ban was imposed and the Respondent No, 1 was not allowed to take minor out of Dubai. It is indeed astonishing that even after that date, this Court was not intimated about such travel ban and even about any proceedings before the Dubai Court. The fact about the proceedings before Dubai Court was the first time brought to the knowledge of this Court by a statement dated 16- 11-2016 filed by the present advocate of Respondent No,
1. If it is considered that the Respondent No, 1 his done something wrong by shifting the minor from Pakistan to Dubai while his counsel has already given a statement for not doing so then at the same time, the Petitioner has not appeared before this Court with clean hands at least after 01-08-2016 i,e, when she approached the Dubai Court but did not disclose the same. The learned counsel for the Petitioner reasoned out that the proceedings before the Dubai Courts was in Arabic and the Petitioner hadn't, sufficient resources to get translate the proceedings that is why it could not be disclosed. During the course of arguments, the learned counsel for the Petitioner not only admits the copies and translation of the proceedings filed by the counsel for the Respondent No,1 but he also relied upon the same. He submits that the Respondent No, 1 intends to take minor to USA and it was the struggle of the Petitioner due to which a ban was imposed and minor is still in Dubai. According to him, the case of the Petitioner was dismissed only because she is not domiciled of Dubai. However , he concedes that the Petitioner is still in Dubai, where she is contesting an appeal against the verdict of lower court.
13. I have gone through the proceedings of Dubai Court filed by the learned counsel for Respondent No,1. As per the text of English translation of judgment, the Petitioner's case before Dubai Court was us under: i) Evidencing the fosterage of her son, Raem, from the Respondent; ii) Obligating the Respondent to pay and alimony for the fostered child including food, clothes and customary medical treatment expenses at 5000 AED per month from the date of receiving the fostered child; iii) Obligating the Respondent to pay the remuneration to the Plaintif f at 2000 AED monthly from the date of receiving the fostered child; iv) Compellingly the Respondent to pay the fostered child's housemaid at 1500 AED per month from the date of receiving the fostered child.
Compelling the Respondent to pay the rent for the fostered child's dwelling at 100,000 AED per annum payable yearly from the date of receiving the foste r child, and obligating the Respondent to suitably furnish the dwelling in consideration of 50,000 AED enable every three years along with the payment of electricity , water and telephone bills; vi) Obligating the Respondent to hand over the fostered child's ID, health insurance card and true copy of his passport; vii) compelling the Respondent to pay the charges and expenses.
From the above summary of the Petitioner's case before the Dubai Court, it is clear that the intention of the Petitioner is to reside in Dubai with the minor for which she had claimed a consider able amount in UAE currency . It is specifically notable that the Petitioner has not demanded the original passport of the minor , meaning thereby that she herself, intends to keep the minor in Dubai. It has also come on record that the Petitioner is still keeping the Respondent No, I engaged in the legal battle before the Dubai Courts.
14. Now the situation is that the parties are under litigation at Dubai for the custod y of minor . The court of original jurisdiction at Dubai has given the verdict against the Petitioner . After going through the judgment of the court of first instance at Dubai, it appears that the Petitioner was disallowed to have custody of the child not only the sole ground of non-domiciling of the Petitioner but a detailed judgment was passed touching the merits of the case also.
I refrained to say anything about the said judgement due to manifold reasons. Amongst them one is the fact that an appeal is pending adjudication against the said judgment of the Dubai Court. Another aspect pertains to jurisdiction.
When parties have been in different jurisdictions, more specially in different international forums, Courts have refrained themselves from exercising the jurisdiction to those Matters which is already sub-judice in another international forum. The Courts have also restrained themselves from exercising such jurisdiction in what are essentially known as "reciprocal territories", in which the laws governing parties are consistent with the laws in Pakistan. UAE and Pakistan both are Muslim countries and for the Muslim family issues including custodial questions of their offspring, both the countries may be considered as "reciprocal territories". What is more, the judgment of Dubai Court itself speaks that the matter of custody was decided on the principle of the laws of Pakistan. In such a situation, any decision regarding the custody of minor Raem by this Court or even any other court, in Pakistan will be amounting to anti-suiting injunction, which obviously cannot be done in the instant case.
The Petitioner herself has chosen to knock the doors of Dubai Court, which is the appropriate forum (Forum Conveniens) having regard to the convenience of the parties and now exercising jurisdiction by the courts in Pakistan may not only amounting-- to grant anti-suit injunction against herself in respect of the proceedings pending in Dubai but also oppressive or vexations for the parties in a 'forum non-conveniens.
15. Before parting, I must add something regarding the best interest of minor , whose parents are separated and residing in different States i,e, Pakistan and UAE. It appears from the record furnished by the learned counsel for the Respondent No, 1 that the minor is getting education in a reputed school. The said school is a Pakistani school, which means that the upbringing of minor is being done in an atmosphere keeping in view of the norms and values of Pakistani society . The atmosphere and standard of living in Dubai is generally better than the overall atmosphere and the standard of living of this country . From the progress reports of the minor , it appears that the minor is well- settled in his new environment in UAE . Apparently , on the point of welfare of minor , his stay in Dubai will be more beneficial for the future of minor . Perhaps, it was the reason that while approaching the court in Dubai, the Petitioner , also put forth her case by showing her intention to keep the minor in Dubai and for the same purpose she demanded for the provision of a dwelling house for the minor and only the certified copy of his passport. In my humble view , even in trans national child custodial cases, the best interest of child cannot be overlooked.
The final outcome of the above discussion is that the instant petition is dismissed along with the listed applications.