KARACHI, Aug 3: Saira, name changed on request, was married a few years back to a man living abroad and had a daughter from the union. Due to various differences, including a miscarriage, she decided five months ago that she could no longer stay with her husband.
“Though my khula case is pending in court, I thought that since he is the father he has every right to meet and see the child. Initially, he used to take her to weddings. One day he informed me that he wanted to keep her for a day and would return her the day after,” she reveals.
The next morning she got a call from him. He simply refused to give back Saira’s daughter, while making various excuses.
Confused about what she should do, Saira decided to go to her in-laws, who live in Pakistan and where her husband was staying, and take the baby from them. When she got there, she was pushed around by her husband while her mother-in-law took away the child. A few days later she filed a case and went with the police to regain custody of the child, but it was of no use. “Now I hear he has taken my daughter to Europe,” she says in a concerned voice.
Saira is like countless women who get married by their families to men living abroad in the hopes of a better future. “I almost left my husband when I was pregnant for the first time and came to Pakistan on a short visit. It was then that I lost the pregnancy because of him and his family’s behaviour,” she points out. Owing to the pressure from both families to reconcile, she decided to patch up with her husband and went back to his home in Europe.
She tried to keep up with the mental and at times physical torture she was subjected to by her husband, yet when she came to Pakistan this time there was a major dispute between the two. This is when she gave up hope and filed a case for khula, opting to stay with her parents while her husband went back. Now that she is without her child she, like many other women, wonders how the law could help her get back her daughter.
Legal limbo
Though in cases where the child is born out of the country such as in Saira’s or either of the parents is a foreign citizen, courts in Pakistan are bound to scrutinize a number of things and at times can’t even take up the case.
“A case for the custody of a child can only be filed in a place where the child is. If the child happens to live outside Pakistan, it is then considered to be beyond the jurisdiction of a Pakistani court to take such a case,” explains retired Justice Majida Rizvi. She said that “If the child is born out of Pakistan or has a foreign nationality, then the law of that country is applied in such a case.”
However, she says that in such cases the only thing that can be done is to go to that particular country and then file a case. “The Foreign Office of Pakistan can be asked to intervene if the child has been taken away from the legal guardian of the child (living with the child in Pakistan) and taken abroad,” she adds.
On the other hand human rights lawyer Zia Ahmed Awan maintains that this can only be done if the case has got enough public attention.Lawyer Riffat Mughal maintains that if both the parents are Pakistanis and the child has been born in Pakistan and then taken away by the father, a mother can file a case here. However, talking about the method to pursue in cases such as Saira’s, she says that “What a mother should do is to file for child custody with the separation case that she has filed. Or if the separation case had been filed earlier and she had not filed for custody, she could try and file a case of deceptively taking away the child and then contact the embassy or the high commission of that country here and ask them to help after lodging a case with the police.
Interim custody
“Since custody cases take quite a long time, what women can do is file an application for interim custody under Section 12 of the Guardian and Ward Act,” she suggests. “This would help her keep the child while the court takes its time to decide on the issue,” she adds. According to Ms Mughal, there have been rare cases of the sort as it is highly expensive for people to go abroad and then file a case.
“To avoid such scenarios a woman should file a civil suit for the guardianship of the child,” said Pakistan Women Lawyers’ Association’s president Noor Naz Agha.
“The court can’t do much if the child has been taken abroad as one has to go to the place where the child is and then file a case,” she says.
Moreover, she observes that even contacting and asking foreign consulates and embassies is of little help in such cases. “It has to be seen under which law and in which country they both got married and what the child’s country of birth is. The age of the child is also brought into consideration while awarding guardianship to the parent. It is also considered what would be better for the child’s future, though the father is responsible to provide maintenance for child-care.”
Interestingly, the lawyers maintain that even foreign nationals can appeal to Pakistani courts if the other parent the child is living with is a Pakistani national.
However, if the child was born in a country other than Pakistan and has been given foreign nationality, then the court would also consider foreign law. Vice versa, a Pakistani parent can apply in a foreign court for child custody if the child is a foreign national and living abroad. Moreover, embassies and missions can also be asked for help and guidance on the subject.
“There are certain instances where the child had been abandoned by the mother, for example while the child was an infant and dependent on the mother and she did not apply for custody for a year or two, then her grounds become very weak,” maintains Ms Agha. She said that divorced or not, parents could apply for child custody.
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