Canadian child`s custody battle: Couple gets another chance to resolve issue

LAHORE, April 14: The Lahore High Court on Thursday hearing a case pertaining to custody of a minor son of two Canadian "common law partners" observed if the couple failed to reach an out-of-court settlement by Friday (today), the court will decide the matter on merit. On the previous hearing of habeas corpus petition moved by 28-year-old Ms Roshni Desai, an Indian-origin Canadian national, Justice Asad Munir had asked both parties to sit together and resolve the matter amicably. On Thursday, Advocate Aftab Ahmad Bajwa, counsel for the mother, informed the court that the parties failed to reach a consensus. At this, Binyamin Khalil Chaudhry advocate, counsel for the father, Jahanzeb Niazi, told the court that almost all conditions set by Ms Desai were accepted but she was insisting on payment of all expenses which she made to reach her child by traveling from Canada to Pakistan. Advocate Bajwa said his client was demanding at least 5,000 Canadian dollars which were half of her total expense. Mr Niazi's counsel, however, opposed the demand and said payment of such a huge amount could only be made in installments. The counsel also suggested the father could pay all expenses through installments if the mother promised to take him to Canada along with her. Mr Niazi would be able to pay the expenses after earning the money in Canada, the counsel added. The court, however, did not consider the proposal and asked both counsels to advance their arguments on merit of the case. Advocate Binyamin, in his arguments, 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. The counsel further plea ded that as both father and mother of the child were Canadian citizens, a concerned court of Canada had the jurisdiction to decide the matter as per Canadian law. He pointed out that under Canadian law the partners who were not formally married got status of husband and wife if they spend at least one year together. The father's counsel also claimed the three and a half years old child, Azan Sohail Niazi, 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 Pakistan was not the child's birthplace. The counsel also questioned mental health of Ms Desai, alleging she had twice attempted suicide in Canada. The matter of child's guardianship should be left for Canadian courts to decide, the counsel concluded his arguments. Ms Desai's counsel, quoting "Mohammedan Law", said a minor child shall be handed over to the mother only. Advocate Bajwa also referred to different judgments of Supreme Court and high court wherein custody of minors was granted to mothers. He said the child could not be formally considered Jahanzeb's son in Pakistan as he had not 'legitimately' married his mother. Contrary to this, the child had a better future in Canada as he would not need the name of father over there. The counsel argued that when the family of Jahanzeb Niazi was not willing to accept the baby as their scion, then how would Pakistani society acknowledge him as its member. He said Roshni Desai had not even changed Muslim name of her child and wanted to bring him up as a Muslim. She was also learning Islam and Quran and had no intention to change child's religion, the counsel added. At this, Justice Asad Munir asked Ms Desai to come forward and tell the court about her plans if she was allowed to take the child with her. Replying to the court's queries confidently, Ms Desai said she was keenly studying Islam and would definitely change her religion if it proved a hurdle in the way to have custody of her son. "I have been visiting Islamic Centre in Montreal and getting knowledge of Islam from the scholars there," she told the court. Ms Desai also promised to give statement in favour of Jahanzeb Niazi before Canadian courts except in the cases initiated by the Canadian state against him. She, however, said Jahanzeb did not possess Canadian passport but had been living there as a "permanent resident". Advocate Bajwa, continuing his arguments, also referred to Inheritance Law which did not give any share to a child born out of wedlock in father's property. He said if the child was given to father, he would have an insecure future in Pakistan. During the course of hearing, the judge again recommended the parties to resolve the issue through an out-of-court settlement and urged Jahanzeb Niazi to pay travel expenses to Ms Desai. At this, Jahanzeb's counsel agreed to give air ticket to Ms Desai and her child for going back to Canada. Justice Munir, however, adjourned hearing for Friday and gave both parties another chance to reach a consensus. He directed Advocate Bajwa and Advocate Binyamin to sit together and make a brief note of their conditions and suggestions to decide the issue. The judge also asked Jahanzeb's counsel to also bring air tickets for Ms Desai and her son on Friday (today).