Ahmedabad: The Gujarat High Court recently refused to allow a plea of a Pakistani national to grant the custody of his minor son whom he alleged was in illegal confinement of his wife, who travelled to India, saying that his lawyer could not substantiate the claim of illegal detention.
A bench comprising Justice Sangeeta K Vishen and Justice Sanjeec J Thaker said that the minor aged four years is in the custody of his his mother and hence, it is difficult to believe that the welfare and the best interest of the child is at stake.
“The Court has repeatedly requested the learned advocate to substantiate the claim of illegal detention or the welfare and interest; however, the learned advocate could not point out, except the bare assertion about the nationality, culture and values. Thus, the claim of the petitioner that the minor ……………has been illegally detained, cannot be accepted,” the bench said.
What was the grievance raised by Pakistani husband?
Grievance raised by the Pakistani husband through the Power of Attorney holder was that his wife together with her minor son has travelled to India and after some days, she has stopped responding to him and raised concern that she would keep the minor in India.
As per the Pakistani national, his marriage with his respondent wife was solemnised at Karachi, Pakistan in January 2019 and the minor, who is currently aged little over four years and a Pakistani passport holder, was born out of the wedlock. It was submitted to the court that his wife illegally brought his minor son to India in September 2024 and has stopped contacting him. He further raised apprehension that his wife would not take sufficient care of the minor and he would be deprived of his culture and value,
“Child is kept in isolation outside the country and it is not in doubt that the child is in force confinement and hence, the custody be handed over to the father,” the counsel submitted and added, “Considering the welfare and well-being of the child, the respondent wife be directed to hand over the custody.”
Proceedings for permanent custody of minor has been initiated before a Karachi family court: Counsel
The counsel also told the High Court that proceedings have been initiated before a family court in Karachi, Pakistan for permanent custody of minor and a notice has been issued by the Karachi court, however, he is unable to serve the notice on his wife as she is in India and he cannot travel to India.
State opposed plea of Pakistani national filed through Power of Attorney holder
The State opposed the plea of the Pakistani national and submitted the respondent wife is a biological mother and if the child is in her custody, it cannot be said that it is illegal confinement .The State further submitted that except the proceedings pending before the Karachi court, there is no order in favour of the husband and therefore, the petition cannot be entertained.
“In the present case, there is no order passed and hence, on mere assertion that the minor is illegally detained, cannot be considered and hence, the petition is not entertained and is dismissed,” the High Court said.
