http://dawn.com/
Canadian child`s custody: CHL rules in favour of mother
LAHORE, April 15: The Lahore High Court on Friday decided the custody case of a Canadian child by handing him over to his mother, a Canadian national of Indian origin.
The court also returned Roshni Desai’s passport and rejected a plea of her “common law partner”, Jahanzeb Niazi, to restrain her from taking the child to Canada.
Niazi’s counsel Binyamin Khalil Chaudhry had argued that a Muslim child could not be handed over to a non-Muslim mother under the Islamic laws.
Justice Asad Munir rejected the argument and observed that under Islamic laws a father had no right to keep custody of his illegitimate child. “An illegitimate child has to be given to mother only,” the judge added.
Advocate Muhammad Azhar Siddique, also representing the Hindu lady, pointed out that if the counsel wanted to talk about Islamic laws then Jahanzeb Niazi should be ready to face proceedings under the Hudood Law.
At the start of the hearing the judge wanted to know if the parties had reached any consensus to resolve the matter.
Advocate Binyamin presented ‘agreed’ conditions in writing and claimed that the parties had honoured them.
However, Desai’s counsel Advocate Aftab Ahmad Bajwa rejected the claim saying his client had directions from Canadian authorities not to sign any agreement.
At this Mr Binyamin asked the court to decide the case on merit. Arguing, he challenged the jurisdiction of the high court to decide guardianship of a child.
Advocate Bajwa intervened and said the guardianship of three and half years Azan Sohail Niazi had already been decided by a Canadian court in favour of Roshni Desai.
Advocate Binyamin responded if the mother had any order of the Canadian court she should adopt the due process for its execution and contact the Pakistani high commission in Canada. He said that she could not seek relief directly from a court in Pakistan on the basis of that order. He also quoted a relevant law in this regard.
Justice Munir, however, asked the counsel: “You mean that a foreigner cannot invoke Pakistani law?”
The counsel could not give a satisfactory reply and tried to divert the court’s attention towards alleged poor mental health of Ms Desai, claiming she had twice attempted suicide in Canada. He asked the court to order medical examination of the mother before deciding the case.
He also objected to the presence of a Canadian embassy official in the court on every hearing. However, he failed to defend his objection when the judge observed that there was no harm if they came with their citizens.
Being annoyed at `irrelevant’ arguments of the counsel, Justice Munir urged him to come up with some solid points which could be appreciated by the court.
At this advocate Binyamin referred to Contact Act and said only “offer and acceptance” was sufficient to solemnize a marriage. The judge remarked that the couple was not even enjoying status of husband-wife under the Canadian law.
Ms Desai’s counsel pointed out that an illegitimate child could be handed over to father under the Canadian law but in Pakistan the child had to be given to mother.
After hearing the counsels, the judge announced his short verdict and allowed Roshni 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 father cannot become guardian of an illegitimate child.”
Rejecting the plea of Jahanzeb’s counsel to stop the lady from taking the child to Canada, the judge observed the child was in Canada and had been removed from Canada. “Roshni is free to go wherever she wants to go,” he said and ruled that she had exclusive right of custody being single parent of the child.
The judge also asked advocate Binyamin to wait for the detailed judgment when he announced approaching a civil court to get a stay order against removal of the child from Pakistan.
Justice Munir, before announcing his verdict, once again proposed the lady that she could accept the conditions of settlement set by Jahanzeb which carried some monetary benefit too. But she refused to get any financial benefit saying, “My child is more important for me than money.”
The 28-year-old Roshni Desai, who belongs to medical profession, was happy on court decision. She expressed her confidence in Pakistani courts and left the high court along with an official of the Canadian embassy. She was set to take off for Canada through a special flight on Friday night.
