Case Background
Zulfiqar Ahmad Khan, J., disposed of the petition on 06.10.2023, remanding it to the Family Court to resolve the foreign couple’s case. After the Family Court gave its judgment, the petitioner filed C.M.A. No.1226/2024 to enforce his rights under the Hague Convention.
Parties Involved
The petitioner is a U.S. citizen who married Respondent No.1 in the U.S. on August 21, 2017. They had a child, Rohaan Faraz Shaikh (Respondent No.2), born on January 8, 2019. The couple separated on October 2, 2021. Following the separation, the petitioner sought custody in the U.S. The U.S. Court granted temporary joint custody. However, in May 2022, the petitioner discovered that the mother had taken the child to Pakistan without his consent, leading to legal action.
Legal Proceedings and Arguments
- Temporary Custody and International Abduction
The petitioner claimed that Respondent No.1 abducted the child, violating international custody laws. He emphasized that under the Hague Convention, a child cannot be removed across international borders without the consent of the custodial parent. - The Hague Convention and U.S. Court Orders
The petitioner argued that Pakistan, as a signatory to the Hague Convention, is obligated to return the child to his habitual residence, the U.S. He cited various precedents, including 2019 CLC 1311 and PLD 2016 SC 174, which support the child’s return under such circumstances. - Claims of Abuse and Fitness of Parents
The petitioner presented evidence from the U.S. court, including an officer’s investigation, which declared the mother unfit to care for the child. The investigation found that the petitioner was the better custodial parent, with a strong relationship with the child. - Defense of the Respondent Mother
The respondent’s counsel relied on Islamic law and argued that the mother had the right to custody under Hizanat. Additionally, the respondent challenged the enforceability of foreign judgments in Pakistan, claiming the U.S. judgment violated natural justice.
Family Court’s Decision
The Family Court in Pakistan upheld the petitioner’s claim, dismissing the respondent’s request for guardianship. The court ruled that the U.S. court’s order was valid and enforceable. The respondent was ordered to hand over the child to the American consulate in Karachi. If she failed to comply, Pakistani authorities were authorized to assist in the child’s return.
International Treaties and Child Welfare
Pakistan ratified the Hague Convention in 2016, and the Convention aims to protect children from wrongful international abductions. Additionally, the United Nations Convention on the Rights of the Child (UNCRC) prioritizes the child’s best interest. The U.S. court’s report supported the petitioner’s claims, confirming that the child would suffer harm if kept in the respondent’s custody.
Legal Precedents and Enforcement of Foreign Judgments
The court referred to several precedents that support the enforcement of foreign custody orders in Pakistan, including PLD 2007 Lahore 293 and 1989 MLD 2209. These cases emphasized the return of children abducted from their habitual residence and the enforcement of international custody decisions.
Court’s Findings and Conclusion
The court found that the U.S. court had jurisdiction and issued a competent judgment. It dismissed the respondent’s claims and reinforced that the child’s welfare would best be served by returning him to the petitioner in the U.S. Therefore, the petitioner’s request for the enforcement of the Hague Convention was granted, and the respondent was ordered to comply.
Final Order
The Family Court’s decision to grant custody to the petitioner was upheld. The respondent was directed to return the child to the U.S. authorities for enforcement of the U.S. court’s decision. The application under the Hague Convention was accepted, and the case was closed.