Cohabitation offspring: Canadian mother weeps as she is granted son’s custody

Petitioner delighted by the outcome of case, praises Pakistani courts.

LAHORE:

The Lahore High Court, on Friday, gave custody of a minor to his Canadian mother observing that according to Islam the father cannot claim custody of a child born without a marriage.

Justice Asad Munir held, “As an illegitimate child does not inherit from the property of his father according to Islam, the custody would remain with the mother.” The judge said the mother was the sole parent in the case and directed the court staff to return petitioner Roshni Desai’s passport, which the court had confiscated on the last hearing as surety against giving her interim custody of the child.

Desai, a Canadian national of Indian origin, had filed a habeas corpus petition for the recovery and custody of her son from his father, respondent Jahanzeb Niazi. The petition said that the child had been born during their cohabitation in Canada in 2007 but later Niazi had removed the child to Pakistan without her consent.

Justice Munir, on Firday, issued the verdict after the parties failed to reach an out-of-court settlement. The court had given the parents two chances to come to an amicable resolution. Niazi’s lawyer, on Friday, submitted his proposals for a settlement but the court held them non-practicable. Desai’s counsel denied them.

Advocate Binyamin Khalil Chaudhry, Niazi’s lawyer, said that as Desai claimed having a custody order from a Canadian court she should get the order implemented through the Foreign Office instead of moving the court.

Chaudhry said Desai was not mentally fit as she had tried to commit suicide. Justice Munir said there was no legal right for the father in the case.

Chaudhry said that Niazi and Desai had performed like husband and wife and according to the Contract Act offer by one party and acceptance by another constituted marriage. Justice Munir wondered if  every such offer and acceptance could be considered marriage.

Chaudhry submitted that the child was Muslim and he should not be handed over to his non-Muslim mother.

The judge told Desai she could accept the conditions set by Niazi. She said, “My baby is more important than money.”

Desai burst into tears when the order was read in her favour. Later on, she said she was delighted with the outcome and that this had strengthened her belief in fairness of the courts of Pakistan.

The respondent, on the other hand, was overheard telling his lawyer, “Thank God, the judge did not pass an order asking me to arrange a return ticket for her.”

During the course of hearing, Justice Munir had observed that under Pakistani laws it was difficult to determine the custody of a child whose  parents were not legally married.



Published in The Express Tribune, April 16^th, 2011.