LAHORE – The Lahore High Court (LHC) on Friday gave the custody of a Canadian child born out of wedlock to his unmarried Indian-origin Canadian national mother Roshni Desai and held that the mother should move a Canadian court for getting compensation, if any, from the Canadian national father of Pakistani origin who unlawfully brought the child to Pakistan.
The court also returned the passport of the mother so that she might travel back to Canada with her three and a half year old son Azan Sohail Niazi born to Roshni Desai and Jahanzeb Niazi in Canada in 2007. The court rejected the plea of Niazi’s counsel Binyamin Khalil Chaudhry to restrain the Hindu lady from taking the child to Canada. Chaudhry argued that a Muslim child could not be handed over to a non-Muslim mother under Islamic laws.
Justice Asad Munir rejected the argument observing that under Islamic laws, a father had no right to keep the custody of his illegitimate child. The judge held, “An illegitimate child has to be given to the mother only”. Advocate Azhar Siddique, also representing the mother, pointed out that if the counsel wanted to discuss Islamic laws then Jahanzeb Niazi should be ready to face proceedings under Hudood Law as he committed Zina.
On Friday, the judge asked the counsels of both parties whether they had reached any consensus to resolve the matter. Chaudhry presented ‘agreed’ written conditions and claimed that the parties had honoured them. But Desai’s counsel, Aftab Ahmad Bajwa, rejected the claim saying that his client had directions from Canadian authorities not to sign any agreement.
At this, Niazi’s counsel asked the court to decide the case on merit and started his arguments challenging the jurisdiction of the high court to decide guardianship of a child. Advocate Bajwa interrupted and said that the guardianship of Azan Sohail Niazi had already been decided by a Canadian court in favour of Desai.
Chaudhry, responded to the argument, said that if the mother had any order of a Canadian court then she should adopt the due process for its execution, including contacting the Pakistani High Commission in Canada. He said that she could not seek relief directly from a court in Pakistan on basis of that order. Chaudhry also quoted a relevant law in this regard.
Justice Munir asked the counsel, “You mean that a foreigner cannot invoke Pakistani law?” Niazi’s counsel could not give a satisfactory reply and tried to divert the court’s attention towards the alleged bad mental health of Desai claiming that she had twice attempted suicide in Canada. He asked the court to order medical examination of the mother before deciding the case.
Chaudhry also objected to the presence of a Canadian High Commission official in the court on each hearing. But he failed to defend his objection when the judge observed that there was no harm in the presence of embassy officials in the court. Annoyed from irrelevant arguments of Niazi’s counsel, Justice Munir urged him to come up with some valuable points, which could be appreciated.
At this, Chaudhry referred to the Contact Act and said that only offer and acceptance was sufficient to solemnise a marriage. The judge remarked that the couple was not enjoying status of husband-wife even under Canadian law. Desai’s counsel pointed out that an illegitimate child could be handed over to the father under Canadian law but in Pakistan the child had to be given to the mother.
After hearing the arguments, the judge announced his short verdict allowing Desai to retain the custody of her son and also ordered court officials to return her passport. Justice Munir observed, “Under Islamic laws, in case of an illegitimate child the tie between mother and child is stronger than the tie between father and the child. And the father cannot become guardian of an illegitimate child.”
Rejecting the plea of Niazi’s counsel to stop the lady from taking the child to Canada, the judge observed the child was in Canada before coming to Pakistan. “Roshni is free to go wherever she wants to go,” he said ruling that she had the exclusive right of custody being the single parent of the child.
The judge also asked Niazi’s counsel to wait for the detailed judgment, when he announced to approach a civil court to get a stay order against removal of the child from Pakistan. 28-year-old Desai, who belongs to the medical profession, was happy over the court’s decision.
Talking to journalists, Desai expressed her confidence on Pakistani courts and left the court along with an official of the Canadian High Commission.
