LHC gives custody of illegitimate child to Canadian woman

LAHORE – The Lahore High Court (LHC) on Tuesday directed two illegitimately married foreign nationals to resolve the case of the custody of their son, and adjourned the hearing of a habeas corpus petition, which was filed by the child’s mother, who sought her child’s recovery from the child’s father in Pakistan. The petition was filed by Roshni Desai, a Canadian national of Indian origin, against Jahanzeb Niazi of Sialkot, a Canadian national. Desai, through her counsel Aftab Ahmad Bajwa, submitted that she gave birth to Jahanzeb’s child on July 10, 2007.
The child was named Azan Sohail Niazi. She said, they separated in November, 2010 and she, along with her son, moved to Montreal, Canada and had the custody of her son till March 7, 2011. She said Jahanzeb initially had the visitation right to the child but he was not content with the right and wanted child’s complete custody. Therefore, he started negotiations with her and was given access to the child once a week, she said. Desai said that on March 7, 2011, Jahanzeb took away the child and disappeared. She tried to contact but he did not reply.
After repeated attempts, she succeeded in establishing contact with Jahanzeb, who promised that the child would be handed over to her soon, but it never happened, she added. She said that on March 9, 2011, she received a phone call from Sergeant Detective Sotiriria Klironomos, who informed that Jahanzeb had flown out of Canada along with the child through Toronto Airport to Pakistan on his Pakistani passport. She contacted the Pakistani Consulate and made efforts for the child’s return, she said.
Desai said she also filed a petition in Canadian Superior Court (Family Division), Province of Cubic, District Montreal, Canada and successfully obtained an order which directed the respondent to hand over the child to her by March 15, 2011. The court also granted her the legal custody of her child. Desai, after obtaining the said order, approached Royal Canadian Mounted Police who issued warrants of Jahanzeb for parental abduction on account of abduction and kidnapping of Azan Niazi.
She pleaded that Jahanzeb had no right to take custody of the minor according to Canadian laws as well as Muslim Family Laws of Pakistan. She admitted that there was no legal marriage solemnised between them and the minor was born from their union and according to the Islamic Laws of Pakistan, Jahanzeb had no right for the custody of minor. Desai said she was a Canadian national and the minor also possessed Canadian nationality and Jahanzeb had not obtained citizenship of Pakistan. Therefore, the Azan was a citizen of Canada and could not live in Pakistan. Earlier, the police produced the minor and Jahanzeb in the court of Justice Asad Munir, who allowed Desai to meet her son in the courtroom.
During the course of hearing, Justice Munir observed that under the Pakistani laws, it was difficult to determine the custody of the minor, as his parents were not legally married. The judge asked Jahanzeb, “Do you think that Pakistani culture would accept this child whereas in Canada he can live a better life?” The judge said to the unmarried couple that it was a very sensitive matter and it should be resolved amicably. Justice Munir temporarily handed over the child to Desai and directed both to reach an agreeable solution by next date of hearing, April 14. The judge however, directed the petitioner to surrender her passport to the court until disposal of the case. A representative from Canadian Consulate also attended court proceedings.