Muhammad Faraaz Shaikh and another v. Javeria Shahani and others

Background

Background

In F.C.P.L.A. No. 1183 of 2026, the Federal Constitutional Court set aside a Sindh High Court recall order and explained the framework for cross-border child-return and custody disputes.

The dispute involved a child connected to the United States and Pakistan. The record discussed a North Carolina custody case, proceedings before the Family Judge at Malir, a Family Court handover order, a withdrawn District Judge appeal, earlier Sindh High Court directions, and a later High Court recall order that was challenged before the Federal Constitutional Court.

Questions of child return, habitual residence and foreign custody orders

Questions of child return, habitual residence and foreign custody orders

Whether the Sindh High Court could recall an earlier custody-return order and initiate contempt proceedings without addressing the finality of the Family Court order, the withdrawn District Judge appeal, the foreign custody proceedings, and the framework governing cross-border child return.

Court holding

What the Court decided

No. The High Court recall order did not address material features of the record, including the finality of the Family Court order and the foreign proceedings. The Court set it aside and explained that habitual residence, the return inquiry, section 13 CPC and the distinction between return and final custody must be considered in cross-border child disputes.

Final outcome

Final outcome

The petition for leave to appeal was converted into an appeal and allowed. The Sindh High Court order dated 16 March 2026 was set aside.

Practical effect

What the decision means in practice

The petition for leave to appeal was converted into an appeal and allowed. The Sindh High Court order dated 16 March 2026 was set aside.

This summary states the immediate effect recorded in the decision. The original judgment and the facts of the particular case remain controlling.

Key legal principles

Key legal principles

• A child-return inquiry and a final custody inquiry are distinct. A decision about return does not itself determine the merits of long-term custody.
• The court must consider the child's habitual residence immediately before the alleged removal or retention and whether custody rights were breached under the law, a judicial or administrative decision, or a lawful agreement of that State.
• After notice of an alleged wrongful removal or retention, the requested court should not decide custody merits until the return question has been determined under the framework referred to in the 1980 Convention.
• Under section 13 CPC, a foreign judgment is conclusive only when the statutory conditions concerning jurisdiction, merits, private international law, natural justice, fraud and Pakistani law are met.
• High Court intervention in custody matters remains exceptional and must account for the Guardian Court's ordinary jurisdiction and available remedies.
• Before recalling a concluded custody-return order, a court must address the finality of existing Pakistani orders and the procedural status of relevant foreign proceedings.

Pakistan relevance

Pakistan relevance

For cross-border child disputes involving Pakistan, counsel should separately identify the return issue, the final custody issue, the child's habitual residence, every operative foreign and Pakistani order, the status of appeals, and the requirements of section 13 CPC. The exact procedural route should then be matched to the relief sought.