Permission abroad | the child to relocate to the USA for educational purposes.
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| The judgement does address the decision to allow the child to relocate to the USA for educational purposes. |
عدالت نے ماں کو بچے کو امریکہ میں تعلیم حاصل کرنے کی اجازت دے دی، کیونکہ والد نے بچے کی فلاح میں کوئی دلچسپی نہیں دکھائی تھی اور اپیلٹ کورٹ کے فیصلے کو تبدیل کر دیا۔
یہ فیصلہ ایک درخواست کے بارے میں ہے جس میں اپیلٹ کورٹ کی طرف سے ایک نابالغ بچے کو امریکہ میں تعلیم حاصل کرنے کے لئے جانے کی اجازت نہ دینے کے فیصلے کو چیلنج کیا گیا۔ درخواست گزار، وکیل سیدا مقصومہ زہرہ بخاری کی نمائندگی میں، نے دلیل دی کہ سابقہ عدالتوں نے بچے کی تعلیم اور فلاح پر توجہ نہیں دی، اور والد کے بچے کی فلاح میں عدم دلچسپی کو اجاگر کیا۔ وکیل مریم حیات، جو امیکس کوری کے طور پر پیش ہوئی، نے بھی درخواست کی حمایت کی، اور کہا کہ والد کی عدم دلچسپی اور بچے کی بہتر تعلیمی مواقع کی ضرورت کو سیٹھی 26 کے تقاضوں پر فوقیت دی جانی چاہیے۔
عدالت نے پچھلے کیسز، جیسے "شیرازادے جمالی" اور "ڈاکٹر عائشہ یوسف" کا جائزہ لیا، جن میں یہ رائے دی گئی تھی کہ بچے کی فلاح اور تعلیمی ضروریات کو ترجیح دی جانی چاہیے۔ عدالت نے دیکھا کہ والد نے بچے کی فلاح میں کوئی دلچسپی نہیں دکھائی، جس کی بنا پر بچے کی امریکہ میں تعلیم حاصل کرنے کی درخواست کو مسترد کرنا غیر منصفانہ ہوگا۔
آخری فیصلہ یہ آیا کہ بچے کو امریکہ میں تعلیم حاصل کرنے کے لئے جانے کی اجازت دی جائے، اور اپیلٹ کورٹ کے فیصلے کو تبدیل کر دیا گیا۔ درخواست گزار کو امریکہ میں رہائش یا تعلیمی ادارے میں کسی بھی تبدیلی کی اطلاع گارڈین کورٹ کو دینی ہوگی۔
Must read Judgement
Writ Petition No. 27113 of 2024 (Judgment)
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approached the learned Appellate Court through Guardian
Appeal No. 38/24. Nevertheless, to the extent of above said
refusal or condition the prayer of the petitioner was turned
down, hence, this petition.
2.
Barrister Syeda Maqsooma Zahra Bokhari
(learned counsel for the petitioner) has argued that learned
two Courts below have not considered that the minor was
not just born in USA but he also has his education institution
in USA, therefore the minor cannot be restrained from
returning to his place of birth and to resume his education;
that the restriction in section 26 of the Act of 1890 comes
into effect when there is a reason or some application from a
non-custodial parent who wishes the minor to be close for
meeting(s) or adherence of schedule framed by the learned
Guardian Court, however, in the present case the
respondent-father despite knowledge of the proceedings uptill now has failed to take any interest in the Court
proceedings or to observe the visitation schedule or for that
matter to take any step for the welfare of the minor. Learned
counsel for the petitioner has also argued that the law has
already been settled by the learned Sindh High Court in
cases titled “Dr. Aisha Yousuf Versus Khalid Muneer and 2
Others” (PLD 2012 Sindh 166) and “Scherazade Jamali
Versus Hisham Gillani and Others” (PLD 2018 Sindh 377)
but somehow the learned Appellate Court, instead of
following the principle settled or being persuaded from the
observations made therein, has refused adhering to the same
for the reason that these judgments have not declared section
26 of the Act of 1890 as ultra vires and this approach
adopted by the learned Appellate Court is not tenable. Added
that even otherwise, the learned Appellate Court should have
granted general leave to the take the minor to USA for
Writ Petition No. 27113 of 2024 (Judgment)
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educational purposes.
3.
Barrister Maryyam Hayat, learned Amicus
Curiae has stated that in case titled “Mst. Sidra Asif Versus
Additional District Judge and 2 Others” (2019 YLR 2692)
it has already been observed that in guardianship cases, the
Courts exercise parental jurisdiction and stand in loco
parentis, thus, the jurisdiction could not be hampered with
undue interference of technicalities. Therefore, the Court
must perform its legal duties to regulate the custody of the
minor in order to ensure his well-being and welfare which
should be paramount and dominant consideration. She
further stated that it was held in the case titled “Raja
Muhammad Owais Versus Mst. Nazia Jabeen and Others”
(2022 SCMR 2123) that Court‟s jurisdiction in custody
cases is in the form of parental jurisdiction which means that
the Courts should not only consider all factors including
physical and emotional needs, medical care but also relevant
is the parent‟s ability to provide a safe and secure home
where the quality of the relationship between the child and
each parent is comfortable for the child, however, the
learned Guardian Court has ignored the same. It is further
stated that the intent of the legislature behind section 26 of
the Act of 1890 is to protect interest of the non-custodial
parent by imposing limits on removing children from
jurisdiction; that the said section is not applicable here as the
respondent-father was proceeded against ex-parte in both the
forums below, which essentially shows that the respondentfather is not interested in meeting the minor, thus, the
protection of section 26 of the Act of 1890 is not applicable.
She has further stated that the respondent-father is resident
of USA and does not even reside within the local limits of
the Court, therefore, the apprehensions disclosed by the
Writ Petition No. 27113 of 2024 (Judgment)
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learned Courts below are not rational and judicious. She has
apprised that the minor can have better education and
financial conditions in USA.
4.
Heard. Record perused.
5.
In “Scherazade Jamali” case (supra) the
learned Sindh High Court resolved the issue as to the
restriction on the movement of a ward out of the jurisdiction,
as contained in section 26 of the Act of 1890, while
observing that the ward cannot be penalized for the dispute
between the parents and if better education facilities or
institutions are available in any part of the world including
Pakistan, there is no justifiable reason that the ward should
be deprived to have access to such institutions or facilities.
The same is categorized as psychological trauma to the
ward, while further observing that the Courts below should
not view the welfare only from the angle that father must not
miss the opportunity to see his child but at the same time it
should be seen as to whether the child is capable of studying
abroad. The Court in the said case concluded as follows:-
“…Welfare of the minor includes his
material, intellectual, moral and spiritual well
being. In accomplishment of such object it
becomes the duty of the Court to take care of
the ward's welfare and shall ensure that the
litigating parents are not disputing to settle
their own score or to satisfy vanity or even to
soothe his/her craving of love and affection
for minor as it could only he done if the
welfare of the ward demands. Guardian
Courts sometime lose sight of the welfare of
the ward when love and affection is
demonstrated by parentswhich is considered as
overriding effect. True love of mother and
father no doubt is important but what is more
important is the welfare of the ward and it
should not be limited to any one's right of
custody, but a larger view is to be taken from
Writ Petition No. 27113 of 2024 (Judgment)
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ward's point of view.
No doubt father is a natural guardian
and any decision that concerns material,
intellectual, moral or spiritual well being is
always a father's prerogative, but such can
always be maintained and achieved in case the
custody remains with mother. There are
occasions when both parents or at times even
the environment that they have is not
considered as conducive for ward, custody and
supervision may be entrusted to foster
parents….”
(Emphasis supplied)
6.
In the present case, respondent-father has not
shown any interest in the visitation schedule framed by the
learned Guardian Court. It has been apprised that no
concern is being demonstrated by the respondent-father in
contributing towards the welfare of the minor. Throughout
the case before the learned Guardian Court, learned
Appellate Court or this Court the respondent-father has not
even joined the proceedings. In “Dr. Aisha Yousuf” case
(supra) the custodial parent / mother obtained job in Dubai
and she requested the learned Court to permit her to take the
ward to Dubai. The learned Court found the request
reasonable and permitted her to take the ward out of the
jurisdiction, while allowing the Constitution Petition. It will
be beneficial to reproduce paragraph No. 12 of the said
judgment:-
“12. In the present case two Court
below have concurrently held that the custody
shall remain with the mother and father has
not challenged such findings. Therefore, as far
as question of custody of the minor is
concerned there does not appear to be any
dispute between the parties. Regarding
visitation rights the two Courts below have
concurrently held that from 6-00 p.m. of
alternate Saturday to 6-00 p.m. of following
Sunday baby girl will be with the father. It is
Writ Petition No. 27113 of 2024 (Judgment)
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stated by learned counsel for the petitioner that
mother is doctor by profession and she has
obtained a job in Dubai and therefore prayed
that she be allowed to take the baby to Dubai.
The requests seems to be perfectly reasonable.
Just as a father cannot be asked to abandon his
career if he wants custody of a child, a mother
cannot be asked to forsake her career if she
wants custody of the child. In these days a
woman is equally entitled to pursue a fruitful
rewarding and satisfying career. Gone are the
day when social norms used to be that a
woman is expected to remain within four walls
of a house and bring up children and father
was free to roam the world in search of
livelihood. Mandate' of the Constitution as
contained in Article 25 is that the State can
make law for the protection and welfare of
women and children. The Supreme Court has
in Shrin Munir and others v. Government of
Punjab through Secretary Health, Lahore and
another, PLD 1990 SC (sic) held that while it
is permissible to practice discrimination in
favour of women and children but it is
forbidden against them. Therefore spirit
underlining all the legislation has to be that if
anything the Court should lean in favour of
weaker sections of society and it does not need
any sophistry of arguments to see that women
in this society, besides others, are certainly
weaker section. Therefore, a female has as
much right to roam in search of career and
livelihood wherever she finds it more apt and
she cannot be deprived of custody of the
children for mere reason that she wants to
serve abroad. Therefore, in my opinion it
would be fair and reasonable to permit the
mother to take the child out of Pakistan along
with her when she goes to Dubai for her
employment.”
(Underlining is added)
7.
In C.P. No. S-411 of 2022 titled “Gul Mina
Afridi Versus Rana Abdul Kareem & Others” the Sindh
High Court referred to a judgment of Karnataka High Court
in WP No. 892 of 2023 titled SmtRakshitha vs Sri C C
Shashikumar passed on 19 January, 2023, where the
Writ Petition No. 27113 of 2024 (Judgment)
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permission was granted to mother on the ground that father
was indolent and he was uninvolved in the matters of
upbringing of the ward. Reliance in the said case was also
placed upon the American jurisprudence and case titled
Watson V. Watson (Aug 03, 2004 I 2004 Neb. App. LEXIS
190) in which the Court granted mother‟s motion to remove
minor children from Nebraska to pursue her job opportunity
in Maryland. Here, I would like to reproduce paragraphs No.
8 and 9 of the said judgment:-
“8. Admittedly the world is a global
village and countless people are migrating
overseas for better opportunities for
themselves and especially their children. While
so far our legal jurisprudence has sparingly
dealt with the situations where the minor was
being removed from the jurisdiction of the
court where the consideration remained the
protection of the welfare of the minor,
however, considering the facts of the present
case where the petitioner's reason of seeking
permission for international travel is for her
daughter to have intentional exposure, the
courts of law aligned with the international
law, in my humble view, are bound to consider
that while allowing/denying the permission,
whether they are protecting the welfare of the
minor or acting otherwise. This responsibility
stems from the International Convention of the
Rights of Child ("Convention") which was
ratified by Pakistan on 12 November 1990,
where Article 3 reinforces the said
responsibility in the following words as
reproduced herein below:
Article 3
1. In all actions concerning children,
whether undertaken by public or private
social welfare institutions, courts of law,
administrative authorities or legislative
bodies, the best Interests of the child
shall be a primary consideration.
9.
Pakistan is also a party to three other
international instruments aiming at directly or
indirectly Improving the rights of the child,
Writ Petition No. 27113 of 2024 (Judgment)
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those being the Convention for the Elimination
of All Forms of Discrimination Against Women
(CEDAW), ratified in 1996; the Declaration
and Agenda for Action adopted at the issue of
the World Congress against Commercial
Sexual Exploitation of Children, signed in
1996, and reaffirmed by the Yokohama Global
Commitment in 2001, and the Convention
concerning the Prohibition and Immediate
Action for the Elimination of the Worst Form
of Child Labour Convention, ratified in 2001,
all of which make the Interest of the child of
primary consideration and through which our
Family Courts are bound to make decisions
that do justice to the principle of welfare of the
child.
8.
Now coming to the reasoning given by the
learned Appellate Court for not being persuaded from the
judgments in cases titled “Dr. Aisha Yousuf” and
“Scherazade Jamali” (supra) or withholding permission to
take the minor abroad. The learned Appellate Court has
observed that in these judgments section 26 of the Act of
1890 has not been declared as ultra vires. Section 26 of the
Act of 1890 reads as under:-
“26. Removal of ward from jurisdiction.---
(1) A guardian of the person appointed
or declared by the Court, unless he is the
Collector or is a guardian appointed by will or
other instrument, shall not without the leave
of the Court by which he was appointed or
declared, remove the ward from the limits of
its jurisdiction except for such purposes as
may be prescribed.
(2)The leave granted by the Court
under sub-section (1) may be special or
general, and may be denied by the order
granting it.”
(Emphasis supplied)
From a plain reading of above, I do not see any
intention of the legislature to place complete embargo on
Writ Petition No. 27113 of 2024 (Judgment)
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granting permission to restrict ward within jurisdiction.
Otherwise, the Courts would not have been empowered to
grant leave to take the ward out of the territorial
jurisdiction. Sub-section 2 of the above permits the Courts
to grant special or general leave and to deny the leave. The
learned Appellate Court is correct in its decision that the
above provisions are holding the field; however, ignored
that the requirement of leave before removing is also for the
wellbeing of the ward and protecting the interest of the
ward as well as the non-custodial parents. Such leave can be
granted, on case to case basis, when welfare of the ward so
demands and being exceedingly cautious in using this
power. I agree with Barrister Marryam Hayat (the learned
Amicus Curiae) who stated that the learned Appellate Court
should have proceeded to give findings on merits of the
case by considering the request to permit the petitionermother to take the minor to USA for education purposes,
instead of making the mother or the minor to go through
further rigors. The learned counsel for the petitioner has
submitted that already harm to the education of the minor
has been caused and referring the matter by learned
Appellate Court to the learned Guardian Court can further
results into damage and / or loss of an academic year.
9.
After carefully going through the available
documents and hearing the arguments, I am of the opinion
that the learned Appellate Court has not exercised the
jurisdiction conferred by law to properly consider the
request of the petitioner. It has been ignored that the
respondent-father is not taking any interest or contributing
for the welfare of the minor and his complete failure in
observing the visitation schedule, framed by the learned
Guardian Court. I do not consider it in the welfare of the
Writ Petition No. 27113 of 2024 (Judgment)
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minor to deprive him from joining his educational
institution in USA, restricting him within the territorial
jurisdiction of the learned Guardian Court, in the
circumstances of the case. It is considered appropriate to
permit the custodial-parent / mother to take the minor to
USA for education purposes. Barrister Syeda Maqsooma
Zahra has submitted that the petitioner-mother undertakes
that prior to change of residential address or educational
institution, information of the same in such eventuality shall
be given to the learned Guardian Court.
10.
In view of the above, the petitioner-mother is
allowed to take the minor to USA for educational purposes
and the judgment of the learned Appellate Court to this
extent is modified. In case of breach of undertaking or any
other relevant condition imposed by learned Guardian
Court, respondent-father can approach the learned
Guardian Court for cancellation of the permission granted.
Petitioner to appear before the learned Guardian Court for
intimation about her present residence address and name as
well as address of educational institution of the minor in
USA.
11.
Allowed in the above terms.
(Sultan Tanvir Ahmad)
Judge
Approved for reporting
Signed on 27.08.2024
Judge