Permission to Take Minor Abroad for Educational Purposes

In Saadia Khalil vs. Additional District Judge, Lahore, and Others (2024 LHC 3901), the Lahore High Court addressed a petition challenging the refusal of the Guardian Court and Appellate Court to grant permission to the petitioner, the mother and custodial parent, to take her minor son abroad for educational purposes. The petition was filed under Section 25 of the Guardians and Wards Act, 1890, for the custody of the minor and to seek leave for his relocation to the United States.

Background:

The petitioner, Saadia Khalil, sought custody of her minor son, Rayyan Muhammad Yamin, who was born in the United States and required permission from the Guardian Court to return to the USA for educational purposes. The minor's father, respondent No. 3, was proceeded ex-parte after failing to pursue the case or adhere to the visitation schedule. Despite being granted custody, the Guardian Court denied the mother’s request to take the minor abroad, a decision upheld by the Appellate Court, citing Section 26 of the Guardians and Wards Act, 1890, which restricts the removal of a ward from the jurisdiction without court permission.

Key Issues:

Applicability of Section 26 of the Guardians and Wards Act, 1890: Whether the restriction in Section 26 of the Act could be applied to prevent the mother from taking the minor abroad, given that the father was ex-parte and showed no interest in the minor's welfare.

Welfare of the Minor and Educational Needs: Whether the minor’s welfare, including access to better educational opportunities in the USA, justified granting leave to the mother to take the minor abroad.

Precedent and Judicial Approach: Whether previous judgments, such as Dr. Aisha Yousuf vs. Khalid Muneer (PLD 2012 Sindh 166) and Scherazade Jamali vs. Hisham Gillani (PLD 2018 Sindh 377), which allowed custodial parents to take minors abroad under similar circumstances, should guide the decision.

Court’s Analysis:

Interpretation of Section 26: The Court acknowledged that while Section 26 imposes restrictions on removing a ward from the jurisdiction, it does not constitute an absolute prohibition. The law allows the court to grant leave to take the ward abroad if the welfare of the minor so requires. The Court found that the respondent-father's lack of interest and failure to observe the visitation schedule rendered the protection of Section 26 unnecessary in this case.

Welfare of the Minor: The Court emphasized that the minor’s welfare, including his access to education, must be the paramount consideration. It found that depriving the minor of his education in the USA would not serve his best interests. The Court noted that the father’s lack of involvement in the child’s life further supported the need to allow the mother to relocate the minor to the USA for educational purposes.

Precedent and Judicial Approach: The Court cited relevant precedents where permission was granted to custodial parents to take their wards abroad for educational and welfare reasons. The judgments emphasized that courts should prioritize the child’s material, intellectual, and emotional well-being over the mere geographical proximity to the non-custodial parent, especially when that parent has shown no interest in the child’s upbringing.

Court’s Conclusion: The Lahore High Court allowed the petition, modifying the judgment of the Appellate Court. The mother was granted permission to take the minor to the USA for educational purposes, subject to her undertaking to provide the Guardian Court with updates on her residential address and the minor’s educational institution. The father retains the right to approach the Guardian Court if any conditions are violated.

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