' MALIK MUHAMMAD QAYYUM, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of a matter relating to custody of minors.
2. The facts of this petition are that the respondent No,1 was married to petitioner on 26-4-1970. This wedlock was blessed with two sons and two daughters whose particulars are as follows:---
(1) Nazish Saeed Islahi, daughter born on 18-9-1971 in Lahore.
(2) Tahir Saeed Islahi, son born on 8-3-1975 in Lahore.
(3) Eiman Saeed Islahi, daughter born on 22-10-1980 in Texas, U.S.A.
(4) Zeeshan Saeed Islahi son born on 2-1-1982 in Texas, U.SA.
3. Unfortunately serious disputes and differences arose between the parties who have levelled allegations and counter-allegations against each other which need not be gone into for the present purpose. Suffice it to say that during the subsistence of their marriage, they have been living in England and later on, in United States of America where Eiman Saeed Islahi and Zeeshan Saeed Islahi were born on 22-10-1980 and 2-1-1982 respectively.
3. Respondent No,1 filed proceedings for divorce in the Court of Harris County which granted ex parte decree by virtue of which marriage between the parties was dissolved and respondent No,1 was allowed to retain the custody of the minors. It appears that subsequently respondent No,1 shifted to Abu Dhabi where petitioner instituted proceedings in the Sharia Court of Abu Dhabi for obtaining custody of minor children. During the pendency of those proceedings, respondent No,1 shifted to Lahore alongwith minors. On 6-6-1987 she filed a suit for permanent injunction for restraining the petitioner from taking the children out of her custody. That suit was disposed of on 8-2-1990 on the basis of statement made by the petitioner that he shall obtain the custody of the minors through lawful means and further that he already filed an application under section 25 of the Guardians and Wards Act for the custody of the minor children before the Guardian Judge, Lahore.
4. This Constitutional petition arises out of the aforesaid application which was instituted on 6th May, 1987. In the written statement filed by respondent No,1 she disputed the claim of the petitioner for the custody of the minors and also raised certain preliminary objections. Originally the learned Guardian Judge framed the following three issues:---
(1) Whether this Court had got no territorial jurisdiction to try this petition? OPR.
(2) Whether it is in the interest of the minors that their custody be handed over to the petitioner?
OPP.
(3) Relief.
4. Later on, an application was filed by respondent No, 1 under sections 11 and 13, C.P.C. Praying for dismissal of the application for custody of minors on the ground that the decree of the American Court operated as res judicata. This application was dismissed by Guardian Judge on 15-7-1990 whereafter respondent No,1 filed a Writ Petition No,6174 of 1990 which was dismissed by this Court on 29th October, 1990 with the observation that the application be made to the Guardian Judge for framing additional issue. Thereafter, the following issue was framed as issue No,2-A: "Whether the application filed by Mr. Abu Saeed Islahi under section 25 of the Guardians and Wards Act is hit by principle of res judicata, if so, its effect? OPR.
5. On 26th October, 1991, the application filed by the petitioner for custody of the minors was accepted by the learned Guardian Judge who . Repelled the objection as to the lack of territorial jurisdiction. He also found that the decree of the American Court did not operate as res judicata and that it was in the welfare of the minors that their custody be handed over to the petitioner.
However, as the eldest daughter, Nazish Saeed Islahi had attained the age of majority, no order was passed with regard to her.
6. Feeling aggrieved of the order of Guardian Judge, an appeal was filed by respondent No,1 before the District Court which was heard by an Additional District Judge who on 14-12-1991 accepted the same, reversed the order of the Guardian Judge and dismissed the application for custody of minor filed by respondent No,1 on the grounds that the decree of the American Court operated as res judicata; that the Guardian Judge at Lahore had no jurisdiction to try this petition and lastly it was in the welfare of the minors that they should be allowed to remain with their mother.
7. The petitioner, who is father of the minors, has come to this Court by filing this Constitutional petition, praying that the judgment of the Additional District Judge dated 14-12-1991 be declared to be without lawful authority and of no legal effect and order of the Guardian Judge dated 20-10- 1987 be restored.
8. Syed Zahid Hussain, Advocate, appearing on behalf of petitioner has raised the following contentions:---
(i) that as the view taken by the Additional District Judge that the minors being American citizens, no application for their custody could be filed in Pakistan, is erroneous inasmuch as the minors having been born out of a Pakistani father are deemed to be citizens of Pakistan and, therefore, an application for their custody was maintainable in Pakistan;
(ii) that so far as territorial jurisdiction was concerned, as at the time when the application for the custody of the minors was filed, minors were admittedly residing at Lahore, the Guardian Judge, Lahore had jurisdiction to entertain this petition;
(iii) that the judgment of the American Court was ex parte and against Pakistani law further it, being an order in the nature of regulating the custody of the minors cannot operate as res judicata and can bar the application for the custody of the minors by petitioner;
(iv) that during the pendency of this petition and in violation of the stay order issued by this Court respondent No,1 has removed the minors from Pakistan to Manila and she is, therefore, disentitled to retain their custody especially when the petitioner cannot exercise his right of control and supervision;
(v) that the finding of the Additional District Judge that the welfare of the minors demanded that their custody should remain with respondent No,1 is based upon misreading of evidence as also contrary to Islamic Law and law declared by the superior Courts of this country.
9. The petition has been opposed by Mr. A.G. Chaudhary, learned counsel for respondent No,1 who has supported the judgment of the learned Additional District Judge and has reiterated that as the minors were American citizens, the Courts in Pakistan had no jurisdiction to try the petition; that the question of custody of the minors having been determined by competent Court in America on 7-2- 1994 the subsequent proceedings before the Guardian Judge at Lahore were barred; that in any case the Guardian Judge had no jurisdiction to try the petition as the minors were not ordinary residents of Lahore. On merits, learned counsel has contended that the Additional District Judge was justified in holding that the Guardian Court at Lahore had no jurisdiction to try the petitioners.
10. The first question, which falls for determination in the present case is as to whether minors can be deemed to be citizens of Pakistan or those of the United States of America. It is a common ground between the parties that presently the minors are holding American passports on which they have travelled to Pakistan. This fact is, however, not conclusive of the controversy inasmuch as undisputedly the petitioner, who is father of the minors, is a citizen of Pakistan. According to section 5 of the Citizenship Act, 1951, all children, wherever born of a Pakistani father, are deemed to be citizens of Pakistan by descent. This question was considered by this Court in Muhammad Younus v. Shahzad Qamar and 3 others PLD 1981 Lah. 280 wherein it was observed that respondents Nos. 1 and 2 in that case would be citizens of Pakistan by descent as provided by section 5 of the Citizenship Act, 1951 irrespective of the fact that they were born in U.K. And as such the Family Court at Sialkot had jurisdiction to decide the matter. In Rochonial Daryannomal v. The Province of West Pakistan PLD 1960 (W.P.) Kar. 150, it was held that the nationality of minor is determined by that of his father and onus to prove is on the person alleging to the contrary. Indian Courts in two cases namely Muhammad Umar v. The State AIR 1961 Orissa 150 and Abida Khatoon and another v. State of U.P. And others AIR 1963 All. 260 have also taken the same view. It may also be observed that as the three children to whom the dispute relates are admittedly minors the question of their renunciation of citizenship does not arise till they attain the age of majority. The same position obtains under the American law in Volume .2 of American Jurisprudence at page 558 which is as follows:--- "A child born in one country of subjects of another owes double allegiance, it seems, and at his majority may elect one and repudiate the other; but until such election he secures the rights of citizenship in both countries, although discharging the duties of allegiance in but one."
11. Learned counsel for the petitioner has placed reliance upon Interpreter Releases, dated 12th August, 1991 issued by the United States Department of State wherein it has been stated that: "The laws of the United States, no less than those of other countries, contribute to the situation because of U.S. Citizenship by birth in the United States and also by birth abroad to an American, regardless of the other nationalities when a person might acquire at birth. For example, a child born abroad to U.S. Citizens may acquire at birth not only American citizenship but also the nationality of the country in which it was born. Similarly, a child born in the United States to foreigners may acquire at birth both U.S. Citizenship and a foreign nationality."
12. Learned Additional District Judge has also non-suited the petitioner by holding that the decree passed by the Court of Harris County, Texas, U.SA. Operates as res judicata. This view appears to be contrary to the law. The first thing to be noticed in this behalf is that the United States of America is not one of the reciprocating countries within the meaning of section 44-A of the C.P.C. According to the learned counsel for the petitioner, the decree in question is ex parte and contrary to the laws of Pakistan. It is, however, not necessary to go into this aspect, for it is well-settled that decision on application for the custody of the minor is not final and conclusive in nature and matter can always be reviewed/re-determined keeping in view the welfare of the minors and change in circumstances. Authority, if any, needed reference may be made to Malik Khizar Hayat Khan Tiwana and another v. Mst. Zainab Begum and others PLD 1967 SC 402, Begum Zainab Tiwana v. Ch. Aziz Ahmad Warraich, District Judge, Lahore and others PLD 1967 Lah. 977, Ihsan-ur-Rehman v. Mst.
Najma. Parveen PLD 1986 SC 14, Ghulam Muhammad v. Mst. Rashida Bibi and 2 others PLD 1983 Lah.
442.
13. The position appears to be the same even in cases where the question of custody of minors has been decided by a foreign Court. That decision has never been considered to be conclusive of the controversy but is always subject to the considerations of the welfare of the minors. In Mackee v.
Mackee (1955) 1 All ER 942, it was observed that: "In proceedings relating to custody the welfare and happiness of the infant was the paramount consideration; the order of a foreign Court as to his custody must be given the weight which was due to it in the circumstances of the case but such an order was only one of the facts which must be taken into consideration; and, therefore, it was the duty of the Canadian Court to form an independent judgment on the merits of the matter."
14. As regards American Law, reference may be made to Volume 39 of Corpus Juris Secundum wherein the following statement of law appears at page 76, which is as under:--- "While a decree in a guardianship proceedings will often settle the questions of custody for the time being, it is not conclusive as against the parents' rights unless they had notice of the proceedings and the question of their competency and suitability was adjudicated. Moreover, custody matters are never settled so finally or conclusively that the Court may not, on a proper showing of change of circumstances, interfere and order a change of guardians if this appears desirable in the interest of the ward. The order of appointment of a guardian cannot be res judicata as to matters arising subsequent to its entry, since inherent in the continuing wardship of the minors is the possibility of additional litigation over their custody and welfare. So, the order in guardianship proceedings is given no effect as res judicata in subsequent adoption proceedings."
15. This question came up for consideration before the Peshawar High Court in Miss Christine Bross v. Dr. Javed Iqbal PLD 1981 Pesh. 110, wherein it was observed: "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 observations had 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 consideration of the welfare of the child."
16. It follows from the above discussion that the decision of the Court of Harris County Texas, U.SA.
Did not by its own force bar the filing of the c application for the custody of the minors by the petitioner especially when the circumstances have undergone many changes. That order was one of the factors to be considered by the Guardian Judge but it was not conclusive of the controversy.
17. Learned counsel for respondent No,1 has cited certain judgments to show that in the matters of guardianship/custody the order of the Court of the country of which minors are nationals should prevail. Even if that be so, these judgments would not be of much help to the respondent No,1 in the present case as it has already been found that the minors are citizens of Pakistan by descent.
18. So far as the territorial jurisdiction of the Guardian Judge is concerned, it is not disputed by the learned counsel for respondent No,1 that at the time when the application under section 9 of the Guardians and Wards Act was filed, minors were residing in Lahore. His contention, however, is that they cannot be deemed to be ordinary residents of Lahore. This assertion is based only on the plea that they were American citizens and have travelled on American passports under visas issued to them. It may be so, however, the question, as already observed, is that the minors are deemed in law to be D holding the citizenship of their father. The fact that the minors were residing in Lahore is evident from the suit filed by respondent No,1 herself in the Civil Court in which it was so stated.
Furthermore, learned counsel for the petitioner is also correct in contending that a minor is deemed to be ordinary resident of the place where his guardian resides and is for the person E challenging the jurisdiction to prove to the contrary. (See Syed Widhal Shah and another v. Syed Ghulam Nabi Shah and others PLD 1965 (W.P.) Karachi 84.
19. The legal objections arising in the case having been disposed of, the next question which arises is as to whether it was in the welfare of the minors that their custody be handed over to the petitioner or the respondent No,1 shall be allowed to retain the same. However, this aspect of the matter need not be gone into in this case for the reason that after the judgment of the Guardian Judge circumstances have undergone a change inasmuch as the minors have been removed to Manila by the respondent No,1. The effect of their removal has also to be examined. In the circumstances of the case, I feel that it would be in the interest of justice that the case is remanded to the learned Additional District Judge for decision afresh on the question as to where the welfare of the minors lies. It may also be noticed that the judgment. Of the Additional District Judge is at variance with that of the Guardian Judge and there is some merit in the contention that the judgment of the Additional District Judge, is based upon conjectures rather than evidence and is also contrary to the principles of Islamic Law. However, I refrain from making further comments less the case before the Additional District Judge is prejudiced. The Additional District Judge shall decide the matter keeping in view the evidence on record and overall circumstances in accordance with law.
' As a result of what has been stated above, this petition is allowed and the impugned order of the Additional District Judge is declared to be without lawful authority and of no legal effect with the result that the appeal filed by respondent No,1 shall be deemed to be pending before the Additional District Judge and shall be decided afresh.