LAHORE – The Lahore High Court (LHC) on Thursday gave last chance to a Canadian couple, Roshni Desai and Jahanzeb Niazi, to reach out-of-court settlement on the custody of their illegitimate child and travelling expenses to Canada. The court observed that if the couple failed to reach an out-of-court settlement on flying expenses to Canada by Friday (today), the court would decide the matter on merit.
Roshani Desai, a 28-year-old Canadian of Indian origin, filed the petition against her child’s father, Jahanzeb Niazi, a Canadian national of Pakistani origin, through her counsel, Aftab Ahmad Bajwa, submitting that Niazi had fled with her son to Pakistan.
Desai’s counsel, Bajwa, informed the court that the parties had failed to reach consensus on travel expenses. Niazi’s counsel, Binyamin Khalil Chaudhry, told the court that all of Desai’s conditions were accepted by Niazi except the payment of all expenses which she incurred to reach her child from Canada to Pakistan. Bajwa said that Desai was demanding 5000 Canadian dollars which were half of her total expense. Earlier, considering the sensitivity of the issue of the illegitimate child, Azan Sohail Niazi, Justice Asad Munir had asked both parties to sit together and resolve the matter amicably.
FATHER’S COUNSEL ARGUES: Niazi’s counsel opposed the demand and said payment of such a huge amount could only be made through instalments. The counsel suggested that Niazi could pay all expenses through instalments if Desai promised to take Niazi to Canada with her. Niazi could pay the money in instalments after earning from Canada, the counsel said. However, the court did not consider the proposal and asked both counsels to advance their arguments on merit of the case.
Binyamin, the father’s counsel, challenged the jurisdiction of the court to decide guardianship of the child. He said under Guardian and Ward Act, only a guardian court could decide the matter of child’s guardianship. In a habeas corpus petition, the court could not take up the matter of guardianship, he added. He further pleaded that as both the father and the mother were Canadian citizens, a concerned court of Canada had the jurisdiction to decide the matter as per the Canadian law. He pointed out that under the Canadian law, love partners get status of husband and wife if they spend at least one year together.
He also claimed that the child had now become a Pakistani citizen and could not be handed over to a non-Muslim mother. He also produced a document in this regard, however, Justice Munir did not entertain this argument observing that Pakistan was not the birth place of the child. The counsel also questioned Desai’s mental health alleging that she had made two suicide attempts in Canada. MOTHER’S COUNSEL ARGUES: Bajwa, relying on the Mohammedan Law, said the child should be handed over to the mother only. He referred to different judgments of the Supreme Court and the LHC wherein custody of minors were granted to mothers.
He said the child could not be given the name of his father in Pakistan as his father had not legitimately married his mother. Moreover, the child had a better future in Canada, he added. The counsel pointed out that Niazi’s family was not willing to accept the child as well. He said Desai had not even changed the Muslim name of her child and wanted to bring up the child as a Muslim. She was also learning the Quran and about Islam and had no intention to change the child’s religion.
At this, Justice Asad Munir asked Desai to come forward and tell her plans. Desai said that she was studying Islam and would definitely convert her religion if it becomes a hurdle in getting the custody of her son. “I have been visiting Islamic Centre in Montreal and getting knowledge of Islam from the scholars there,” she added. She also promised to give favourable statements for Niazi before the Canadian Courts except the cases were initiated by the state. She also pointed out that Niazi did not possess a Canadian passport and had been living there with a status of “permanent resident”.
Bajwa, continuing his arguments, referred to Inheritance Law which did not give any share to an illegitimate child in father’s property. He said if the child was given to the father, he would have an insecure future in Pakistan. During the course of hearing, the judge recommended the parties to resolve the issue through out-of-court settlement and urged Niazi to pay Desai’s expenses. At this, Jahanzeb’s counsel agreed to give air ticket to Desai and her child for going back to Canada. Justice Munir, however, adjourned the hearing for Friday and gave both parties another chance to reach a consensus.
He directed Bajwa and Binyamin to sit together and make a brief note of their conditions and suggestions to decide the issue. The judge has also asked Niazi’s counsel to bring air tickets of Desai and her son today.
