SULTAN TANVIR AHMAD, J:-The petitioner-husband and respondent No. 3 (the respondent- mother) are having German Nationality. They contracted marriage on 13.02.2011 in Pakistan. Out of the wedlock two children `M' and `A' (presently 12 years and 8 years old, respectively) were born.
They have domicile of origin of Germany. The family moved to England from Germany in the year 2018. The husband acquired employment in England. `M' was given admission in Ryvers School Nursery-Slough, England. On 12.07.2019 they came to Pakistan. Certain disputes between the petitioner-father and the respondent-wife resulted into divorce, registered in Lahore-Pakistan. Both `M' and `A' are now studying in Pakistan. Further facts and disputes are succinctly stated in the judgment of the Court of Appeal, and need not be repeated in this part of judgment.
2. On 28.08.2020 the petitioner-father instituted suit, under section 25 of the Guardian and Wards Act, 1890 (GWA-1890), seeking custody of `M' and `A', with different assertion to justify his prayer.
The respondent-mother besides disputing jurisdiction, contested merits and claimed right to return `M' and `A'. On 13.12.2022 the learned Guardian Court refused to exercise jurisdiction for the following short reasons:- "Record further reveals that Muhammad Sulman petitioner through petition u/s 25 of the Guardian and Ward Act has prayed for custody of minors namely Muhammad Mussa Khan aged about 08 years and Muhammad Abdullah Khan aged about 3 1/2 years. Pleadings available on record transpired that minors are German nationals having their ordinary residence in United Kingdom.
As minors are foreign nationals having ordinary residence in United Kingdom and the petitioner himself stated this fact in his statement recorded on 21.11.2022 in presence of his counsel and stated that the petitioner seized to be Pakistani national on 15.04.2014 and his spouse also seized to be Pakistani national in year 2016. Hence, Guardian court Lahore has no jurisdiction to entertain instant application u/s 25 of Guardian and Ward Act. Hence the instant petition stands dismissed for lack of Jurisdiction. File be consigned to the record room after its due completion."
Guardian Appeal No. 13 of 2023 was filed by the petitioner-father. Vide judgment dated 15.03.2023, the learned Court of Appeal upheld the above decision.
3. Minute perusal of the response filed by the respondent-mother reflects that she denied averments in suit, pleaded merits by raising various allegation, referred to different proceeding in other cases, disputed jurisdiction of the learned Guardian Courts in Pakistan under GWA-1890 as well as the possibility of problems of recognition and enforcement of divorce registered in Pakistan by the recognizing state. Additionally, the respondent-mother has also adopted the stance that `M' and `A' should be returned to place of their habitual residence before they were removed, on the basis the Convention on the Civil Aspects of International Child Abduction-1980 (the `Hague Convention'). This last stance is vigorously argued by the respondent side before this Court. She claimed that `M' and `A' are German Nationals by birth, having domicile of origin of Germany and residents of England immediately prior to their wrongful removal, therefore, an order to return the children should be passed on account of wrongful removal and retention.
4. The issue relating to recognition of divorce is not required to be addressed because that is not under challenge before this Court. The present petition is essentially arising out of the suit to grant custody of `M' and `A'. The learned advocate(s) and parties have also argued on merits of custody issue, however, the same will be avoided to be discussed in this judgment for the reasons (i) the petition is filed against refusal to entertain the matter by learned Guardian Court, (ii) the Hague Convention (Article 19) restricts that the decision on the issue of return or its refusal shall not be a determination of merits and (iii) even otherwise, any observation in this regard by this Court can cause prejudice to the finding of the learned Court having jurisdiction to make such determination.
5. It is appropriate to first consider the submissions made by the two sides regarding the Hague Convention, which requires restoration of children who are wrongfully removed or wrongfully retained in any contracting State and to ensure that rights of custody and access under the law of a State are effectively respected by other contracting States. This requires from signatory States to take appropriate measures to secure within their territories the implementation of the objects of the Convention, in most expeditious procedures which are available. It also protects rights of custody even where there has been no order of custody. Chapter I of the Hague Convention is related to its scope. Article 3 provides when the removal or retention is to be considered wrongful :- Article 3 The removal or the retention of a child is to be considered wrongful where - a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
6. The rights of custody mentioned in sub paragraph (a) above, can arise by operation of law or under decision of competent forum or because of agreement which is legally recognized by the State from where a child is allegedly removed. "Wrongful" admits removal and retention (i) in breach of right of custody either jointly or alone, under the law of the State where the child was habitually resident immediately before the removal or retention; and (ii) at the time of removal or retention the rights were exercised or would have been so exercised but could not due to removal or retention.
7. The words "habitually resident", "wrongful" and "removal" or "retention" as well as the other significant terms, depending upon case to case basis, have to be given the meanings that are acceptable to all contracting States. For example, "habitual residence" should be given a harmonized approach with the law of the State from where a child had residence immediately before complained removal. This to me requires giving these words natural and ordinary meanings to avoid conflicting interpretations by different States and to protect interest of children.
8. In "Mark v Mark"[1] it has been decided that the question whether the residence is habitual is a factual one, which should be answered by applying the test laid down by Lord Scarman in "Shah"[2] and it is possible that legality of a person's residence in England might be relevant to factual question whether that residence is "Habitual". The jurisdiction was assumed to entertain a wife's divorce petition, both on the basis of her residence for previous twelve months and of her domicile in England.
9. Articles 4 and 5 of Hague Convention provide that the convention applies to any child having habitual residence in a contracting State immediately before any breach of custody or access right, until the child attains age of 16. The said Articles read as under:- Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
Article 5 For the purposes of this Convention - a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
The breach of custody referred in Article 4 relates to those rights which are defined in Article 5(a) i.e. "rights of custody", which are concerning the care of the person of the child, in particular, the right to determine the child's place of residence. There are a number of judgments from English jurisdiction to the effect that first task of the Court to which application is made is to see what right has been left behind by the parent that she/he had under the law of the State of habitual residence immediately prior to removal. Secondly, to see those rights amount to "right of custody" in terms of Article 3 or the "rights of access' that includes the rights to take a child for a limited period to a place other than the habitual residence. For the purposes of the Hague Convention habitual residence' must not be just a temporary or intermittent place, however, there is no need for an intention to reside indefinitely. There must be some degree of integration into the social and family environment in the State.
10. The presence should be voluntarily. Enforced presence or residing somewhere with opportunity to escape is not included. See "Udny v Udny"[3] and "Shah v Barnet London Borough Council and other appeals"[4].
11. In my opinion, in the given circumstances of the present case, where even no other Court or competent forum in contracting State is seized with the matter or assumed jurisdiction prior to alleged wrongful removal or retention, the determination regarding the issue of return is necessary to be made at earliest because there is risk of completely no assessment of rights of a child or for that matter rights of the parents. This is what happened in the present case. The learned Guardian Court has refused to entertain the claim on the basis of Nationality. No other forum in any contracting States is making any determination. The issue of wrongful removal or retention was not properly pressed before the competent forum or the learned Guardian Court for some reason best known to the parents. This essentially has left the aggrieved unremedied. Some essential facts shall be discussed in later part of this judgment.
12. As already discussed above that to make the Hague Convention effective in all the contracting States, particularly the States which have joined it lately, the meanings to the rights given therein and related terms should be interpreted in the literal sense otherwise the difficulty can be faced in protection from harmful consequences to a child by wrongful removal or retention. It is also vital to establish procedures to ensure prompt return of the removed child to the State of habitual residence. Article 6-A in schedule (Part-I) to Family Courts Act (FCA-1964), through SRO 980(I) / 2017 dated 25.09.2017 (the "Notification"), has been inserted. This confers jurisdiction upon the Guardian / Family Court to resolve these issues, in the Country. An examination of the Hague Convention also reveals that it warrants taking the measures of the nature that the question of wrongful removal and detention should be determined at earliest, so that upon being convinced the order of return can be passed without delay or harmful effect to any child.
13. For the purposes of the present case Article 12 of Hague Convention has critical implication:- Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
The above provisions necessitate that if less than a year has elapsed from the wrongful removal the order of return should be forthwith. After one year, position depends on the question- if the child has settled in its new environment? The word "demonstrated", used above for this purpose to me will make it a question of fact. It will depend upon case to case basis. However, when the same could not be demonstrated on the balance of probability the Court or authority should make an order of return. Nonetheless, this also is dependent on the Articles 13 and 20 of the Hague Convention. See the decision in "Re M (Children)(Abduction)"[5], particularly the view of Lady Baroness Hale of Richmond: "39. Thus there is always a choice to be made between summary return and a further investigation. There is also a choice to be made as to the depth into which the judge will go in investigating the merits of the case before making that choice. One size does not fit all. The judge may well find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that factor and to all the other relevant factors, some of which are canvassed in Re J, will vary enormously from case to case. No doubt, for example, in cases involving Hague Convention countries the differences in the legal systems and principles of law of the two countries will be much less significant that they might be in cases which fall outside the Convention altogether.
40. On the other hand, I have no doubt at all that it is wrong to import any test of exceptionality into the exercise of discretion under The Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the convention".
(Emphasis supplied)
14. Further discussion on Article 13(a) of the convention will not be out of context. The requested State is not bound to order the return if the one opposing can establish that the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or had subsequently acquiesced in the removal of or the retention.
15. "In re D (a child)"[6] the issue before the Court was whether a child should be returned to Romania after three years and ten months of his removal. Father in this case was opposing and passage of time was partly attributable to his conduct. It has been observed that not all the parents have right to demand automatic return of children who have been taken without consent.
The removal and retention is wrongful if it is in breach of right of custody attributed to a person, an institution or any other body, either jointly or alone.... In addition, those rights must have been exercised at the time of removal or would have been had it not been for the wrongful removal. In paragraph 29 the House of Lords has made discussion regarding problem characterization of other parent's right, travel restrictions imposed by law or by the Court's order without consent of other parent or the leave of Court. In the said case the proceedings were dropped and appeal was allowed, primarily on the ground that father was not having right of custody for the purposes of Hague Convention when the child was removed from Romania to England and accordingly removal was held as not wrongful, therefore, no obligation to return arose. The following analysis by the Court, in the aforesaid case, can also be useful guideline:- "49. Article 12 of the Convention caters for delay in making the application for return. If an application is launched more than 12 months after the wrongful removal or retention, the child is nevertheless to be returned "unless it is demonstrated that the child is now settled in its [sic] new environment". The choice of the date of application rather than the date of decision is deliberate: the left behind parent should not suffer for the failings of the competent authorities (see Professor Prez-Vera, op cit, para 108). It is not possible, therefore, to argue that cases such as this fall outside the Convention altogether.
50. Nevertheless, article 13 provides that there are circumstances in which the authorities of the requested state are not bound to order the return of the child. These are (a) where whoever had rights of custody was not actually exercising them at the time or had consented to or later acquiesced in the child's removal or retention; or (b) "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Article 13 also provides that the judicial or administrative authority may refuse to return the child "if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its [sic] views"
51. It is obvious, as Professor Prez-Vera points out, that these limitations on the duty to return must be restrictively applied if the object of the Convention is not to be defeated (op cit, para 34).
The authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child. There is a particular risk that an expansive application of article 13(b), which focuses on the situation of the child, could lead to this result. Nevertheless, there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention to require it. A restrictive application of article 13 does not mean that it should never be applied at all.
16. Here I would like to revert to some facts of the present case. Parents and the two children (M and A) came to Pakistan in July, 2019. `M' was about six years old and `A' was two years old. Mother claims that they were here only for holidays. Serious disputes between the parents resulted into criminal litigation. `M' started his education in a school at Lahore in January, 2020. Later, `A' has also joined a school. `M' is now twelve and half years of age and `A' is eight years old. Overseas Pakistani Foundation wrote a letter to the Ministry of Foreign Affairs of Pakistan, which has put-up note with the Embassy of the Federal Republic of Germany. The Embassy remained unable to issue new passports of the Children as there is no verdict in favour of either of the parents regarding Custody.
A letter dated 08.12.2022 by the Embassy of Federal Republic of Germany-Islamabad is available.
17. There is nothing on record to show that `right of custody' was being exercised or when they came to Pakistan gravity of dispute was so that these rights would have been exercised but for the alleged removal. Mother has not approached the learned Guardian Court, who is empowered through aforesaid Notification to look into the matter relating to the Hague Convention. Custody Petition was filed by the father after thirteen months of their entry in Pakistan. Only in response to this Petition, mother has set-up the claim under the Hague Convention and also raised question of jurisdiction on the basis of Nationality. "A" has spent most of his life in Pakistan. Both the Children are apparently well adjusted in the respective schools. Their passports could not be renewed, inter alia, for the reason that none of the parents has right of custody.
18. The questions of upbringing or relocation abroad in best interest of children have already been considered and such permissions have been granted in certain cases[7] keeping in view the United Nations Convention on the Rights of the Child-1989 (UNCRC). The Honourable Supreme Court in Malik Mahmood Ahmad Khan and Dr. Muhammad Asif cases[8] has issued guidelines considering the international obligation under UNCRC and best interest of Children.
19. Next is the pleaded conflict between GWA 1890 and FCA-1964. This has been examined in several cases[9]. Anne Zahra case is concerning where some proceedings took place in USA and later custody petition under FCA-1964 was filed in Pakistan. The question for determination that arose before the Supreme Court was as to which Court has the jurisdiction and if same is to be resolved under GWA-1890 or FCA-1964 and rule framed thereunder. In Paragraph No. 7 of this judgment the issue is resolved in following manners:- "7. Learned counsel for the petitioner in support of this petition made reliance on judgments reported as Sakhawat Ali and another V. Mst. ShuiKhelay (PLD 1981 SC 454), Adnan Afzal v. Capt.
SherAfzal (PLD 1969 SC 187) and Ihsan-ur-Rehman v. Mst. NajmaParveen (PLD 1986 SC 14) to contend that the question of forum being a matter of procedure, therefore, should have been decided in view of the provisions of the Guardians and Wards Act. We are afraid, the argument is plainly unsound and cannot be accepted on any reason. As has been observed, the West Pakistan Family Courts Act, 1964 has overriding effect in so far as the matter included in the Schedule, therefore, initially it is the Family Court which has to be approached in respect of matters relating to custody of minor being one of the listed item in the Schedule and in determining as to which of the Family Court shall have jurisdiction to entertain such a petition shall have to be decided under the provisions of the said Act and the rules framed thereunder and once a Family Court is approached accordingly by a party considering that a particular Family Court was vested with the territorial jurisdiction to entertain the petition, for the purposes of the trial of the same, the procedure as prescribed under the said Act is not to be followed but the general procedure for the trial of suit under the Civil Procedure Code has to be followed which has no nexus or relevancy with the question of determination of the Trial Jurisdiction of the Court. By virtue of section 25 of the West Pakistan Family Courts Act, every Family Court has been designated as the District Court, therefore, there is no Guardian Judge as such under the Guardians and Wards Act whereas the Family Court under the said Act competently seized of a matter relating to matter of minors shall be deemed to be a District Court."
(Emphasis supplied)
In "Scherazade" case (supra), after survey of cases on the subject, the learned Sindh High Court has also observed:- "...However the issue concerning territorial jurisdiction in custody / guardianship matter is regulated under West Pakistan Family Courts Act, 1964 and not under the Guardian and Wards Act, 1890."
20. The learned Courts below have refused to entertain the case being persuaded from the fact that parents and the children are German Nationals. However, it has been ignored that Nationality represents a person's status, by virtue of which she or he owes allegiance to a Country. The concept of Nationality is elaborated in "Umar Ahmad Ghuman"case[10] as under:- "10. Nationality in common parlance means membership of a particular nation. In international Law it refers to the attributes of a person natural or artificial person belonging to a State with certain rights and obligations which the law may prescribe..."
21. Similar question came up for hearing in "Muhammad Zaman" case[11], when it was observed that for such matters the question of citizenship or nationality is not relevant while determining the issue of jurisdiction for the Courts. The following principle settled in the said case for the purposes of jurisdiction under FCA-1964 has escaped the view of the learned two Courts below:- "...It may be observed that the question of citizenship or nationality is not relevant while determining the question of jurisdiction for the courts in Pakistan. Section 83 of the Civil Procedure Code 1908, also provides that even if a person is not a citizen of Pakistan he can as an alien always sue in Pakistan unless he falls within the definition of an alien enemy. Thus, any foreigner can avail and inovke the jurisdiction of the courts in Pakistan provided the defendant resides within the jurisdiction or the cause of action whether wholly or in part has arisen in Pakistan..."
(Underlining is added)
22. It is noticed that several constitution petitions were instituted by the present parties before this Court, prior to this petition. One of these, was filed by the respondent-mother, in the year 2021 (W.P No. 52630 of 2021) wherein similar questions as to jurisdiction were also raised. The learned Judge left the same for the learned Guardian Court to give finding after recording evidence but at the same time the following guidelines were also given:- "...Submission that respondent No. 1 cannot exercise jurisdiction against the minors, who being not the citizens of Pakistan, in terms of section 5 of Family Courts Act, 1964, read with section 1 of the Muslim Family Laws Ordinance 1961 is self-defeating, otherwise being fallacious. If, as claimed by the learned counsel for the petitioner, provisions of the Family Courts Act 1964, in terms of section 5 thereof - which provided jurisdiction with respect to the matters specified in part I of the schedule, which inter alia included Custody of the children and visitation rights of the parents to meet them [item 5] are not attracted, why not the jurisdiction can be assumed under section 9 of the Guardian & Wards Act 1890, in terms whereof question of territorial jurisdiction is dependent upon determining the fact that where the minor ordinarily resides which determination is otherwise a question of fact. Argument is inherently defective and based on misconstruction of section 1 of the Muslims Family Laws Ordinance 2001, examined in the context of the facts of instant case..."
Review of above was sought which was also dismissed vide order dated 18.07.2022. An Intra-Court Appeal instituted by the respondent-mother also met the same fate. However, at the stage of recording evidence, the parties gave statements that issue should be resolved without evidence.
Apparently, as a result of the same the learned Guardian Court as well as Appellate Court have reached to the conclusion and declined to assume jurisdiction. Resultantly, the learned Courts below have failed to examine the interest or welfare of the children, as required under UNCRC and principles settled under "Dr. Muhammad Asif" case (supra).
24. After examining this case from all perspectives, I am of the view that it is just and in the best interest of `M' and `A' to proceed further with this matter. The decisions of the learned two Courts below are hereby set-aside. The present petition is allowed and resultantly, the case shall be deemed to be pending before the learned Guardian Court to decide it on its merits. The parties to appear before the said learned Court on 25.07.2025. The dispute being old requires early attention.
Office to inform the concerned Court.
1. [2005] UKHL 42
2. [1983] 2 AC 309
3. [1869] LR 1 Sc
4. [1983] 1 All ER}
5. [2007] UK HL 55
6. [2006] UK HL 51 [7]"Dr. Aisha Yousuf Versus Khalid Muneer and 2 Others" (PLD 2012 Sindh 166). "Scherazade Jamali Versus Hisham Gillani and Others" (PLD 2018 Sindh 377). "Saadia Khalil Versus Additional District Judge, Lahore and 2 Others" (2025 CLC 478).
8. "Malik Mahmood Ahmad Khan Versus Malik Moazam Mahmood, etc." (CPLA. 2250-L / 2016) and "Dr. Muhammad Asif Versus Dr. Sana Sattar and Others" (CRP No. 458/2024).
[9]"Anne Zahra Versus Tahir Ali Khilji and 2 Others(2001 SCMR 2000). "Saima NazirVersus Guardian Judge (IV) Lahore (PLD 2023 Lahore 433). "Sohail Ahmed Versus Mst. Samreena Rasheed Memon and another" (2024 SCMR 634).
10. "Umar Ahmad Ghumman Versus Government of Pakistan and Others (PLD 2002 Lahore 521)
11. "Muhammad Zaman Versus Uzma Bibi and 4 Others" (2012 CLC 24)