EVALUATE THE CASE OF LOUISE ANNE FAIRLEY vs.

SAJJAD AHMAD RANA

(PLD 2007 Lah. 300)

Introduction
The word “guardianship” implies guardianship of a minor. Minor is a person who has not
attained the majority age as per the law working in the land. The law assumes a minor as
“dole incapax”1 therefore, on behalf of minor a wali is appointed to guard the person and
his/her property. In Pakistan, the age of reason for both sexes is seven years, and the age of
puberty for a boy is twelve, and for a girl is nine years.

Definition
Under ​The Guardian and Wards Act, 1890​ guardian is defined as

“A person having care of person of a minor, or his property, or of both

his person and property.2”

In the case of separation between parents, they do not litigate for the guardianship but the
custody of a minor. In custody matters, the High Courts have broadened their scope under
section 491 of Criminal Procedure Code and Article 199 of the Constitution in the cases
where minors have been illegally removed from the custody.

Difference between Guardianship and Custody

The Guardian and Wards Act, 1890, fails to distinguish between the two concepts.
Guardianship is the right to perform legal transactions and contracts on the minor’s behalf.
Custody is the upbringing, nursing, and taking care of the minor’s emotional and personal
needs every day. In custody, the minor must live with the custodian, but in guardianship, it is
not necessary.
In granting the custody, the welfare of the minor is of utmost importance.

1
One who is incapable of reasoning
2
Section 4 of the Guardians and ward Act 1890
Child Custody Issues
Child Custody is a critical issue after every divorce in Pakistan, and parents litigate with full
might to attain the custody. In this regard, child welfare is an essential factor. Financial
strength, maltreatment, character, and capacity of parents are given importance.
Mothers are mostly given preference over fathers under personal law, till certain age of the
child. However, nowadays, there are some complications because women are opting for
career-driven lives.

Parental Child Abduction

“Child Abduction” means the kidnapping of a child. It can be in the form of a stranger
abducting the child or a parent abducting the child from the lawful custody of another parent.
Parental child abduction happens mostly after the separation of parents.
Several laws regulate the concept of Parental Child Abduction, such as the Hague Convention
on the Civil Aspects of International Child Abduction 1980. In Pakistan, the Family Courts
Act, 1964 and Guardian, and Wards Act, 1890, predominantly regulate child protection.

Evaluation Of Louis Anne Fairley vs. Sajjad Ahmed Rana(PLD 2007 Lah. 300)
The case of Louis Anne Fairley vs. Sajjad Ahmed Rana is a landmark case that deals with the
concept of parental child abduction in Lahore High Court. Molly’s parents separated in 2001.
In 2006, without the mother’s (lawful custodian) consent, the father brought her to Pakistan.
Molly’s mother flew to Pakistan to fight for custody.

Firstly we will discuss section 9 of the Guardians and Wards Act (VIII of 1890) talks
about the court jurisdiction ​“in the place where the minor ordinarily resides.” ​According to
the case, the minor had not only been living and studying abroad but was recognized and
accepted before a foreign court. Moreover, she lived there for more than a year hence proves
Pakistan not to be the residence of Molly.

The mother presented a constitutional petition under Article 199 of the Constitution​,
evoking the High Court’s constitutional jurisdiction to plead her case. She alleged that the
father abducted her daughter despite a restraining order by the foreign Court. The Court
termed father’s actions as ​“oblique, dishonest, ulteriorly motivated and was tainted with
fraud to circumvent orders of Courts of a foreign jurisdiction and deprive the mother of her
lawful custody.”3. Hence the father was not entitled to exercise his right of custody over the
minor not only he abducted the child but violated the judgment of a foreign court.
Furthermore, ​Article 199 (1) (b) (i) was examined​. The Court scrutinized the words
“without lawful authority’ and ​“in an unlawful manner” ​supports the concept that custody
should not violate the law.

The Court rightly interpreted ​Section 491 of the Criminal Procedure Code (V of 1898)​,
which proved that the High Court had jurisdiction to entertain the appeal of habeas corpus.
The petition of Habeas Corpus has justly filed, keeping in mind the unlawful actions of the
father where he abducted the minor.
In this case, the Court referred to many previous judgments, mainly ​Uzma Wahid v
Muhammad Javed Umra4, Muhammad Javed Umrao v Miss Uzma Wahid5, Miss Hina Jilani,
Director of A. G. H. D. Legal Aid Cell v Sohail Butt6 and Sara Palmer v. Muhammad Aslam7
In Uzma Wahid v Muhammad Javed Umrao, for instance, the Supreme Court of Pakistan
used the ​Guardians and Ward Act to prevent the minor from being unlawfully taken from
the mother’s custody.

The Court did not only rely on domestic law but also took international law into
consideration.

The judgment termed Pakistan as a ​“responsible state.” Under international law, every state
is responsible for the other up to some extent. Judiciary is an integral organ of the country
had to show respect to the decision of another state to harmonize global politics and relations.
Hence the Lahore High court had to make sure justice was done seen as a Pakistan national,
and a foreign court order was involved.

3
(PLD 2007 Lah. 300)
4
(​1988 PCr.LJ 1883)
5
(​1988 SCMR 1891)
6
(​PLS 1995 Lah. 151)
7
(​1992 KLR Crlo)
The Court relied on the Convention on the Rights of the Child to affirm that child welfare is
the most crucial factor to consider when deciding such cases. The Court stated that Pakistan
law regarding custody is per the welfare of the child, which is the primary concern before the
judiciary in the United Kingdom and Islamic principles. Since the foreign Court decided the
matter, the Lahore High Court allowed the constitutional petition ordering the father to give
the mother the lawful custody of Molly.

Conclusion
Concluding, I would like to say The Molly Case touched several different aspects of looking
at the custody of a child and parental child abduction. The Court set a precedent that provides
a pathway to similar cases in the future. The judgment included a remarkable interpretation of
domestic as well as international law to ensure justice while remaining a “responsible state.”