Not Guilty By Reason Of Parentage: Parental Kidnapping (Or The Lack Thereof) In Pakistan

Not Guilty By Reason Of Parentage: Parental Kidnapping (Or The Lack Thereof) In Pakistan

You open the door to find a new born baby on your front steps. You conclude that she has been abandoned by her mother so you take her into your home and raise her. You provide for her in every manner possible, cherish her as your own and love her with all your heart. And then one day, maybe five years later, a woman comes to visit you saying she is the birth mother of your child and would like to see her. You are in the middle of chai, biscuits and small talk when….nothing. You pass out and wake up to find both the woman and the child gone. Your baby has been kidnapped.

Put aside your natural inclination as a Karachiite to wonder what you were doing letting an unknown woman into the house and instead just think of the sheer panic that is coursing through your veins when you realise that you were drugged and the child – your child – intentionally kidnapped. This is exactly what happened to one of Mrs. Qureshi’s children at Sirat-ul-Jannah orphanage early in 2015.

Now imagine the same scenario as above except that the child belongs to your relative. And you have been asked to take her in because the birth parents don’t have the resources to support her. She grows up believing you are the parents till the age of seven. One day, the child’s birth father (your relative) comes into your home, holds the child at gun point and threatens to kill her unless you agree to let her go with him. Naturally, you do just that. You never see the child again.

The two scenarios, have three very important similarities. Firstly, the minor was in the custody of someone other than a birth parent (but not an adoptive parent), secondly, there seems to have been an abduction or kidnapping and thirdly, the kidnapper is a birth parent. The second commonality appears to give you a cause of action – or locus standi – against the kidnapper. But in actual fact, the combined presence of the first and third commonalities means that under Pakistani criminal law, you have no recourse: there is simply no legal concept of a birth parent “kidnapping” his/her child.

That is not to say that the concept of “kidnapping” is not recognized under the law. Kidnapping is recognized under Section 359 of the Pakistan Penal Code 1860 which provides for two different categories of kidnapping: kidnapping from Pakistan[1] and kidnapping from a lawful guardian[2]. Kidnapping from Pakistan is committed when “any person (is conveyed) beyond the limits of Pakistan without the consent of that person, or of some person legally authorized to consent on behalf of that person” and kidnapping from a lawful guardian is committed when a child (under the age of fourteen for boys and sixteen for girls) is removed from the “keeping” of their lawful guardian[3]. Further, Section 362 defines abduction as “whoever by force compels or by any deceitful means induces, any person to go from any place, is said to abduct that person”. Kidnapping and abduction are forms of human trafficking and are treated as such by the law rather than by a separate provision on human trafficking.

There are also further sub-types in each category, dealing with the intention – or mens rea – behind the kidnapping or abduction which include, inter alia, kidnapping or abduction:

• with the intent to murder[4],
• with intent to secretly and wrongfully keep in confinement[5],
• for extorting property, valuable security etc[6],
• with the intent to compel a girl into marriage[7], or
• in order to subject to grievous hurt or slavery[8].

So why does this overtly holistic law not cater to situations as described above?

The problem is rooted deep in the family law system of Pakistan and the concept of lawful guardianship. Understanding who the mythical “lawful guardian” is and why it isn’t it the person who fed, clothed, educated and loved the child for many years without expecting anything in return, is the key to understanding why the concept of parental kidnapping does not exist. “Lawful guardians” – easily understood as being the legal guardian – under the laws of Pakistan, only include (1) either birth parent, or (2) any person to whom the Court has awarded custody – and therefore lawful guardianship – like an adoptive parent or relative in the event of the parents’ death, or (3) a Court appointed guardian.

Guardianship, however, is different from custody. The latter refers to where the child lives or with whom he or she resides. It is a fluid state and can change by Court order (and even such orders can change if circumstances change, leading to the conclusion that the welfare of the child now lies elsewhere). The former refers to the state of being responsible for the child’s welfare – even if the child is not in your custody. A child’s natural guardian under the law (irrespective of whom custody/lawful guardianship lies with), is always the birth parents without exception. While the lawful guardian is responsible for the child’s general wellbeing – which includes the child’s emotional, physical, and mental wellbeing – there is a “moral and legal duty” to maintain the child (financially) which always falls on the shoulders of the birth father[9] (the birth mother does not have this responsibility under the law, despite her status as the natural guardian[10]). In addition, the birth mother has a right of hizanat, that is, the right to custody of her minor children[11]. Therefore, the principles of custody and guardianship work in tandem to mean that in any given situation, it is possible for the custody and guardianship to lie with separate people.

The issues of guardianship have been explored by the Lahore High Court in the following terms:

“Under Muslim law, dual control of minor children by the father and mother has been recognized. The father is the legal and natural guardian of the minor whereas the right of hizanat vests in the mother of the minor. Under Sunni Muslim personal law, the mother is entitled to custody of her male child until he has completed the age of seven years and of her female child until she has attained puberty.”[12]

The Sindh High Court has also approved of this view and stated:

“Here (in Pakistan) the right of…custody is primarily dealt with in view of Islamic jurisprudential inferences of hizanat and then the welfare of the minor. At the same time an important facet cannot be disregarded, that despite having custody of a child by a mother, the guardianship of a father does not extinguish and he should have access to his children and he remains financially responsible for their maintenance and education even though they may be under the care of their divorced mother. We also concur the view taken in the case of Kausar Parveen that the guardianship of a father does not cease while the minor is in the custody of his mother and there in nothing in the law to prevent the mother to agitate her right of hizanat when minor is with the father.”[13]

With the concepts of guardianship (natural and legal) and custody (the right of hizanat and otherwise) in mind, it can now be established that in the situations at the beginning of this article, the de facto parent who raised the child, did not fall within any of the three categories of lawful guardianship even though s/he had custody of the child. For all intents and purposes therefore, that “parent” was (under the law) a stranger to the child. S/he was, as a result, not competent to give or withhold consent with regard to the child. Most importantly, the birth parent who “kidnapped” the child was (and always will be) the natural and lawful guardian of the child. It is therefore the absurd case in the scenarios above – and in all parental kidnapping situations – that the kidnapped child is taken into the custody of a lawful guardian as opposed to being taken from the custody of the same (the latter being the definition of the offence of kidnapping from a lawful guardian). The law finally seals the de facto parent’s fate by including an exception in Section 361 which states “this section does not apply to the act of any person…who in good faith believes himself to be entitled to the lawful custody of the child.”

As a result of the state of the law as above, the usual course of urgent action in the case of kidnapping does not work in the specific situation where the kidnapper is the birth parent – that usual course being the filing of a habeus corpus petition under Section 491 of the Criminal Procedure Code 1898. The section covers a wide range of unlawful confinement situations but the one relevant in circumstances of kidnapping or abduction states that “a person illegally or improperly detained in public or private custody within such limits be set at liberty”[14]. However, in cases of parental kidnapping where a child has been taken into the custody of his/her lawful guardian , such “detention” is on the face of it, neither “illegal” nor “improper” and therefore does not fall within the purview of this section[15]. As courts have categorically stated:

“No case of abduction can be registered against the natural guardian (mother and father)…mother can never be ascribed or attributed the offence of kidnapping her own child.”[16]

And in similar fashion:

“(the) father of a child always being the natural guardian along with the mother, can never be ascribed or attributed the offence of kidnapping his own child.”[17]

Not only does the state of the law mean that third parties who have raised a child have no recourse in the face of “kidnapping” by a parent, but also means that in cases of divorce, if custody is awarded to one parent, and the child is then abducted from such custody by the other parent, the former has no recourse under the criminal law. The reasoning is the same: although by court order, custody may lie with one, the existence of the order cannot and does not deprive the other of his/her status as natural guardian[18]. As a result, criminal proceedings against a natural guardian cannot succeed.

That is not to say that one has no recourse under the law at all in a case of parental kidnapping. There remains one trump card which – if proved – can sway courts from their firm stance on this matter: the welfare of the child.  A case for custody may be made out under Section 25 of the Guardians and Wards Act 1890, based on the premise that the child’s welfare lies with someone other than the person who currently has custody. If it can be proved that the welfare of the child lies elsewhere than with the parent who has taken the child (and therefore prompted the Section 491 application), then courts have shown to be willing to order that custody be returned to the original caretaker[19]. The approach taken in such cases however, must be understood. There is still no declaration that the detention of the child is unlawful, nor that the birth parent is somehow guilty of the criminal offence of kidnapping. Instead it is that even though custody may be lawful, it is in the best interests of the child to be in the custody of someone else[20]. However, even this must be taken with a pinch of salt since such cases are truly rare, as courts are in general, unwilling to remove the child from the custody of a birth parent.

While certainly counter intuitive at best, the law is rooted in logic encompassing both a religious and a social aspect. The concepts of custody, hizanat and natural guardianship, all make perfect sense when understood in theory. But the law – and especially family law – is impossible to look at in a vacuum; there are always multiple considerations – and people – to take into account. Surprisingly however, Pakistan is not alone in its treatment of parental kidnapping. Some states in America also do not recognize parental kidnapping as a criminal offence and do not provide for laws to prosecute the perpetrators – especially in cases where parents are separated and there is no court order in place to prescribe where custody lies.

Looked at from an international perspective, the issue of cross-border/international kidnapping by parents is much more serious than kidnapping within the country itself. The ‘Hague Convention on the Civil Aspects of International Child Abduction’, is the law governing the crime of international kidnapping. It aims to deal with the rights and responsibilities of signatories with regard to the crime and binds signatory states to the terms set out therein. However, not all countries are signatories to the Convention – in particular, Pakistan, India and Egypt have not signed the Convention. As a result, it becomes impossible for a child to be retrieved from such a country once removed from a signatory country. This is a grave problem in the United Kingdom and United States where cross cultural marriages are common. Some signatories have passed local legislation to enforce the provisions of the Convention – for example, the United Kingdom passed ‘The Child Abduction Act’ of 1984. However, the problem is the same: once a child is removed from the jurisdiction of the signatory country, the law has no force, and without the cooperation of authorities (police, courts and government) in the non-signatory country, there is simply no avenue to recover a child kidnapped by their parent. Needless to say, such cooperation is difficult to ensure.

In Pakistan, reform of the law should follow a two pronged approach: firstly, developing and improving upon local legislation and secondly, ensuring that it is not an obstruction to combating the crime of international kidnapping. With regard to the first, there needs to be a focus on interpreting existing laws more widely and in light of the purpose that the laws are to serve. Taking the concept of lawful guardianship as an example, if the purpose of such a concept is to protect the interests of the child, then the law needs to ensure that the application of the concept does just that. There needs to be an acceptance and acknowledgement that a child’s welfare may lie other than in the obvious place – that is, with his/her birth parents. Again purposively, why is it that there is a presumption that a child’s interest lies with his/her parents? The answer lies in the love and nurturing that a parent provides. So if that same love and nurturing is being received from another, does it not make sense to widen the realms of the law to take into account that “another”? Therefore, reform is a matter of steering away from rigid laws that prescribe situations and towards laws that are capable of adapting and catering to situations.

With regard to the second, the authorities need to give serious thought and consideration to becoming a signatory to the Hague Convention. Not only would this ensure that the crime of kidnapping from Pakistan[21] can be more effectively dealt with, but would also ensure that Pakistan can be seen in the international sphere as a country that is facilitating rather than hindering the crime of international kidnapping and in turn boost the country’s image and perpetuate goodwill. By implementing both prongs of reform, the foundational purpose of laws – that is, justice – can be safeguarded both locally and internationally.

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References:

[1] Further elaborated upon in Section 360 [Section 360]

[2] Further elaborated upon in Section 361

[3] This offence includes three elements: that the minor was taken away or enticed by the kidnapper; that the minor was out of the keeping of the lawful guardian; that the keeping of the minor was without the consent of the lawful guardian (Ahsanullah vs. The State, 2008 P Cr. L J 627)

[4] Section 364, Pakistan Penal Code 1860

[5] Section 365, Pakistan Penal Code 1860

[6] Section 365-A, Pakistan Penal Code 1860

[7] Section 365-B, Pakistan Penal Code 1860

[8] Section 367, Pakistan Penal Code 1860

[9] Shazia & Another vs. Muhammad Nasir & Others, 2014 YLR 1563

[10] Muhammad Nasrullah vs. Fauzia Bibi, 2014 CLC 272

[11] Shahbaz Ahmed vs. Additional District Judge, 2014 YLR 1374

[12] Kausar Parveen vs. The State, PLD 2008 Lahore 533. Under Shia Law, the right of hizanat lies with the mother till a male child has attained two years of age and a female child has attained seven years of age (Bisma Safdar vs. Additional District Judge & Others, 2010 YLR 1309).

[13] Marium Tariq & Others vs. SHO of Police Station Defence & Others, PLD 2015 Sindh 382

[14] Section 491(b), Criminal Procedure Code 1898

[15] Rabia Noor vs. Shahzad Shah & Others, 2014 MLD 1333

[16] Kaniz Fatima vs. Sessions Judge Muzaffargarh, 2015 MLD 659 [Kaniz]

[17] Muhammad Ashraf vs. SHO and Others, 2001 Cr.LJ 31

[18] Kaniz, supra note 16

[19] Shazia Bano vs. Government of Sindh & Others, 2014 YLR 152; Abida vs. S.H.O. Ratodero Police Station, 2014 YLR 705; Reema vs. S.H.O. Police Station Darri, Larkana, PLD 2014 Sindh 598

[20] Fauzia Iqbal vs. Farhat Jahan, PLD 2015 Lahore 401; Muhammad Khursheed vs. Ihtisham & Others, 2014 P Cr. L J 1249

[21] Section 360, supra note 1

 

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