PLJ 2013 Cr.C. (Islamabad)
513
Present: Iqbal Hameed-ur-Rehman, C.J.
Dr. VIKTOR
HACKER--Petitioner
versus
Dr. SHAHIDA
MANSOOR etc.--Respondents
Crl. Misc. No. 14-H
of 2012, heard on 18.9.2012.
Civil Procedure
Code, 1908 (V of 1908)--
----S. 13--When
foreign judgment not conclusive--Issue of custody of
minors--Jurisdiction--Judgment passed by the District Court, Garz, Austria is not a conclusive judgment because (i) the District Court, Garz,
Austria has not delivered the said judgment on merits and (ii) that the appeal
against the said order is still pending in the Apex Court of Austria--Moreover,
High Court while dealing with the instant petition, has no jurisdiction to
decide the issue of custody of minors, coupled with the fact that at present, the
minors (both female) are in custody of their real mother, therefore, by any
stretch of imagination it cannot be held that the minors are in illegal
confinement--It would also not be out of place to mention here that this Court
while dealing with issue in hand cannot assume the jurisdiction of executing
Court of the judgment passed by the District Court, Garz,
Austria. [P. 517] A
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
491--Habeas corups--Illegal confinement--Custody of
minors--No jurisdiction of High Court--Held: If a person is alleged to be in
illegal confinement but in the instant case, the minors are in the custody of
their real mother, whereas, the petitioner, who is the real father of the
minors is praying for declaring the custody of the minors by the real mother as
illegal confinement, as such, the matter involved in the instant petition
strictly relates to the appointment of a Guardian of the minors, therefore, the
custody of the minors by the real mother cannot be held, in any circumstances,
to be an illegal custody--High Court while exercising jurisdiction under
Section 491, Cr.P.C. cannot decide the question of
appointment of a Guardian of the minors and such jurisdiction solely lies with
the Guardian Judge--Moreover, in the instant case, the petitioner has not
alleged that respondent has removed the minors from his custody, therefore, the
ultimate course which is required to be adopted by the petitioner, is the
filing of petition under Section 25 of the Guardian and Wards Act, 1890--Petition
disposed of. [Pp. 517 & 518] B
Mr. Ali Raza, Advocate for Petitioner.
Syed Nayyab Hassan Gardezi, Advocate
for Respondent No. 1.
Sahibzada Muhammad Raees Satti, Standing Counsel for
Respondents No. 2 & 3.
Date of hearing:
18.9.2012.
Judgment
Through the
instant Crl. Misc. No. 14-H/2012, the petitioner has
made the following prayers--
a) that the detention of the detenues by Respondent No. 1 is unlawful and improper and
Respondent No. 1 be directed to produce the minor children before this Court
forthwith and the minor children may be directed to be released from their
legal confinement;
b) to find the detention of the detenues by Respondent No. 1 as unlawful and improper and
direct Respondent No. 1 to produce the detenues
before this Court forthwith.
(c) that directions
be issued for release of the detenues from the
illegal confinement and detention.
2. The
petitioner, in the petition has alleged that he is a citizen and resident of
the Republic of Austria and is employed as a Professor in the Technical
University of Graz, Austria, whereas, Respondent No. 1 is a citizen of
Pakistan, The petitioner and Respondent No. 1 entered into matrimonial bond on
07.08.1999 and out of the said wedlock, two minor daughters named Saida Hacker and Samia Hacker
were born on 18-09-2003 and 05.05.2006 respectively. The petitioner has further
alleged that he is the sole lawful custodian and guardian of the minor detenues with such sole custody having been granted to him
by the District Court of Garz, Austria vide its
decision dated 03-05-2012, which was further affirmed by the Provincial Court, Garz, vide its decision dated 29-06-2012. The minor detenues were unlawfully removed by the Respondent No. 1
from Austria and she brought
them to Pakistan on
12-02-2012, in patent violation of the respective orders of the Courts in Austria, hence,
the instant petition.
3. Learned
counsel for the petitioner argued that in the year-2009, Respondent No. 1
sought divorce from the petitioner and instituted proceedings in Austria,
however, divorce has not yet been effected, as such, the marriage is still in
existence; that as per Austrian law Court step in with regard to custody of
minors and vide order dated 8th September, 2010 custody was allowed to be
joint; that vide order dated 26th July, 2010 joint custody of the minors was
allowed but residence of the minors was declared to be with the mother; that
Respondent No. 1 assailed the order dated 26th July, 2011, by filing appeal in
the Provincial Court which was accepted and the sole custody was granted to
Respondent No. 1 and the matter was remanded; that the appellate Court had
granted sole custody to Respondent No. 1 subject to the condition that the
minors would not be removed from the jurisdiction of the Court of Garz, Austria; that on 12th February, 2012 Respondent No. 1
took the minors outside the jurisdiction of the Court at Garz,
however, counsel for Respondent No. 1 continued to present her in the Court and
subsequently the custody of minors was given to the petitioner vide judgment dated
3rd of May, 2012; that Respondent No. 1 filed appeal against the said judgment
which was dismissed vide order dated 29-06-2012, however, Respondent No. 1 has
filed an appeal before the Supreme Court of Austria, which is still pending and
no injunctive order has been issued therein; that the District Court, Garz, Austria has initiated criminal proceedings and has
issued arrest orders of Respondent No. 1. Learned counsel for the petitioner
has further argued that Respondent No. 1 has unlawfully and in patent violation
of the orders of the Courts in Austria has removed the minors; that the minor
children are Austrian citizens and could not be brought to Pakistan without the
lawful permission and consent of the petitioner; that Respondent No. 1 is
illegally confining and detaining the minor children in violation of the law
and against their will. Learned counsel for the petitioner has relied upon PLD
1995 Supreme Court 633, PLD 2010 Lahore 48, 1993 SCMR 1690 and 2008 YLR 2647
[Lahore].
4. Conversely,
learned counsel for Respondent No. 1 has argued that the petitioner had
converted his faith from Christianity to Ahmadi
faith; that admittedly appeal in respect of the minors is pending in the Apex
Court of Austria; that petition is not maintainable firstly because the foreign
Court judgment has not become conclusive and secondly that the decision on the
basis of which the present petition has been filed was obtained on the back of
Respondent No. 1; that the reason for withdrawing the custody from the mother
is not appealable; that Respondent No. 1 was granted the custody of minors
after going through a long process of four years i.e. medical test and
psychological tests etc. and thereafter, she was declared fit for the sole
custody of the minors; that the welfare of the minors lies with Respondent No.
1/mother; that it cannot be held that the judgment of the lower Court in
Austria is conclusive one, when appeal is pending; that the judgment passed by
the Provincial Court of Austria, is against the principle of natural justice
because the same as passed in absentia and the same was not passed on merits;
that there was no restriction by the Court in Austria regarding taking away the
minors outside the jurisdiction of the Court; that even if the judgment is
conclusive one then too, this Court has no jurisdiction to entertain the matter
and the proper forum is the Guardian Judge; that the matter involves a factual
controversy which cannot be decided without recording of evidence; that
alternate remedy is available to the petitioner and Respondent No. 1 was
lawfully handed over the custody of minors; that this Court is not an executing
Court, therefore, this petition is not maintainable. Learned counsel for
Respondent No. 1 has relied upon 2007 YLR 399, PLD 1983 S.C. 280, 2009 MLD 367,
2004 CLD 1407, PLJ 2004 Lahore 221, 1997 SCMR 323 and PLJ 1997 1219.
5. I have heard
the learned counsel for the petitioner as well as learned counsel for
Respondent No. 1 and perused the documents appended with the petition.
6. The
petitioner through the instant petition has made two fold prayers:--
(i) that the
detention of the detenues by Respondent No. 1 is
unlawful and improper, therefore, Respondent No. 1 be directed to produce the
minor children before this Court and the minor children may be directed to be
released from illegal confinement;
(ii) that the
detention of the detenues by the Respondent No. 1 be
declared as unlawful and improper and directions be issued for the release of
the detenues from illegal confinement and detention.
7. As far as,
the prayer of the petitioner to the extent of production of minors before the
Court is concerned, vide order dated 11.09.2012, Respondent No. 1 was directed
to produce the minors before this Court today i.e. 18-09-2012. Respondent No. 1
has produced the minors today before the Court and the petitioner met with the
minors.
8. The second
prayer of the petitioner is regarding declaration of the custody of minors by
Respondent No. 1, as illegal and issuance of directions for the release of detenues/minors from illegal confinement.
9. The
petitioner in the instant petition has taken the stance that as vide
order/judgment dated 3rd May, 2012, District Court Garz,
Republic of Austria, has awarded the sole custody of
minors to him, therefore, the detention of the detenues
by Respondent No. 1 be declared as illegal.
10. Section-13
of the Code of Civil Procedure, 1908 relates to the foreign judgment. The said
section reads as under:-
"13. When
foreign judgment not conclusive.--A foreign judgment shall be conclusive as to
any matter thereby directly adjudicated upon between the same parties or
between parties under whom they or any of them claim litigating under the same
title except:-
(a) Where it has not been pronounced by a
Court of competent jurisdiction;
(b) Where it has not been given on the
merits of the case;
(c) Where it appears on the face of the
proceedings to be bounded on an incorrect view of international law or a
refusal to recognize the law of Pakistan
in cases in which such law is applicable;
(d) Where the proceedings in which the
judgment was obtained are opposed to natural justice;
(e) where it has
been obtained by fraud;
(f) where it
sustains a claim founded on a breach of any law in force in Pakistan.
(underlining
and emphasizing is mine).
From the bare
reading of the above re-produced Section of Code of Civil Procedure, 1908, it
is crystal clear that the judgment passed by the District Court, Garz, Austria is not a conclusive judgment because (i) the District Court, Garz,
Austria has not delivered the said judgment on merits and (ii) that the appeal
against the said order is still pending in the Apex Court of Austria. Moreover,
this Court while dealing with the instant petition, has no jurisdiction to
decide the issue of custody of minors, coupled with the fact that at present,
the minors (both female) are in custody of their real mother, therefore, by any
stretch of imagination it cannot be held that the minors are in illegal
confinement. It would also not be out of place to mention here that this Court
while dealing with issue in hand cannot assume the jurisdiction of executing
Court of the judgment passed by the District Court, Garz, Austria.
11. Petitioner
has also filed the instant petition under Section 491, Cr.P.C.
The proceedings under Section 491, Cr.P.C. are
summary in character and the jurisdiction of High Court can be invoked under
Section 491, Cr.P.C. if a person is alleged to be in
illegal confinement but in the instant case, the minors are in the custody of
their real mother, whereas, the petitioner, who is the real father of the
minors is praying for declaring the custody of the minors by the real mother as
illegal confinement, as such, the matter involved in the instant petition
strictly relates to the appointment of a Guardian of the minors, therefore, as
observed above, the custody of the minors by the real mother cannot be held, in
any circumstances, to be an illegal custody. This Court while exercising
jurisdiction under Section 491, Cr.P.C. cannot decide
the question of appointment of a Guardian of the minors and such jurisdiction
solely lies with the Guardian Judge. Moreover, in the instant case, the
petitioner has not alleged that
Respondent No. 1 has removed the minors from his custody, therefore, the
ultimate course which is required to be adopted by the petitioner, is the
filing of petition under Section 25 of the Guardian and Wards Act, 1890.
12. In view of
what has been discussed above, the instant petition stands disposed of with the
observation that the petitioner may approach Guardian Judge for the custody of
minors.
(A.S.) Petition
disposed of
