SHC orders Pakistani woman to hand over her son to US national father

KARACHI: The Sindh High Court (SHC) has directed a woman to hand over her five-year-old son to his American national father since Pakistan is the signatory of a convention to prevent parental abductions.

A single-judge bench, headed by Justice Zulfiqar Ahmad Khan, also observed that US court as well as a family court of Pakistan had already decided the issue about custody of the minor in favour of his father while the Council of Children Rights in USA reported the attraction of minor towards father instead of mother and the father was declared to be the best caring option.

Faraaz Shaikh had filed a petition in the SHC against his ex-wife Javeria Shahani and others last year, seeking the custody of his son Rohaan Faraaz Shaikh.

The petitioner contended that he was a citizen of the United States of America and got married to the main respondent in the US in August 2017, and from the wedlock, the child was born in January 2019 in USA. Thus he gained the US citizenship by birth.

However, the couple got separated in October 2021 and whereafter a case was instituted in the US the for custody of the minor, which was pending at the time of institution of this petition, but later same was decided asking the parents to share the temporary joint custody of child, he maintained.

The petitioner further submitted that his ex-wife had ‘illegally abducted’ the minor without his consent and brought the child to Karachi from USA in April 2022 and maliciously filed for guardianship and Pakistani citizenship for the minor in order to save her from US courts which granted temporary full custody of the boy to his father.

The lawyer for woman argued that respondent mother was entitled to the custody of the minor as a right of Hizanat which means the father is not entitled to the physical custody of a male child until he attains the age of seven years and of a female child until puberty.

After hearing both sides, the SHC in its detailed judgment said that Pakistan had singed the Hague Convention on the Civil Aspects of International Child Abduction, 1980 in December 2016 which has been enforced in March 2017 to secure the prompt return of the children wrongfully removed or retained and to ensure allied rights of the children.

In January 2022, a US court appointed Mr Freeman to represent and advocate for the minor’s best interest, who after thorough investigation introduced on record certain facts, constituent of which were also discussed and delineated in the US court edict, it added.

The bench also noted that it was an admitted position that the minor was a foreign national who was brought into Pakistani territory secretly and residing within the precinct of SHC in defiance of court’s order.

The US court as well as the family court declared that the petitioner father is fit to be declared as guardian of the minor and that a family court in Pakistan, also having observed the pros and cons of the matter at hand, dismissed the plea of guardianship filed by the respondent mother and directed the mother to handover the custody of the minor to the American consulate in Karachi with his Pakistani and American passports, it added.

About contention of lawyer’s respondent mother regarding hizanat, the SHC noted that this aspect was covered by a number of the judgment rendered by the apex court where welfare of child was held to be the key consideration.

“In the case at hand the mother was married in the US, marriage was registered under the US laws, child was born in the US and later on she chose to traffic the minor to Pakistan, such illegal acts have rendered the mother incapable of making right decisions in the best interests of the child. She seemingly has destroyed the US passport of the minor and have dug holes in the Pakistani passport of the child (her own admission in the court)”, it added.

The SHC also observed that despite two opportunities having been given to mother to bring the child to court, she failed and apparently wished to keep the child ‘underground’ and intended to hide herself from the red warrants issued against her.

During the course of the hearing, the counsel for petitioner filed a statement in the SHC in which the petitioner undertook to withdraw the contempt application filed against the respondent mother in a US court and thereafter the warrant issued against the mother would become ineffective and that the respondent mother would have rights granted to her by the US Courts.

“For the aforementioned reasons and in the presence of concurrent edicts decided in favor of the petitioner father, the respondent mother is directed to hand out custody of the minor to the father or the concerned authorities acting on his behalf, so also the concerned authorities to afford all facilities to the father to take the child back to the United States pursuant to the order passed by this court and the US courts and in case the mother wishes to follow the suit appropriate facilities also to be provided to her as and when requested”, it concluded.

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