The Lahore High Court on Tuesday directed two Canadian dual nationality holders, one of Indian origin and the other Pakistani, to resolve the custody of their minor son who would not be considered legitimate according to Pakistani law.
The judge asked the respondent, Jahanzeb Niazi, “Do you think Pakistani culture would accept this child? At least in Canada, where he was born, he can have a better life.”
The judge told the unmarried couple that this was a sensitive matter which needed to be resolved amicably. Justice Asad Munir temporarily handed over the child to the petitioner, Roshni Desai, and directed both to reach a solution by the next date of hearing, April 14.
The judge directed Desai to surrender her passport. A representative from the Canadian consulate also attended court proceedings.
The Sialkot police produced the minor and Niazi in court. Justice Munir observed that under Pakistani law it was difficult to determine the custody of the minor as his parents were not legally married. The habeas corpus petition filed by Desai, a Canadian national, sought recovery and custody of her son from Niazi, his father. Desai alleged that Niazi illegally removed the minor from Canada
Desai’s lawyer Aftab Ahmad Bajwa submitted that she gave birth to her son in July 2007 in Canada. He said she separated from the child’s father Niazi in November 2010 and retained custody of the child. He said the father wanted increased visitation rights with the child and through mediation he was given access to the child once a week.
The petitioner said that in March 2011, the respondent disappeared along with the child. Desai was able to track Niazi down and he promised to hand over the child to her soon.
The petitioner was informed that Niazi had left with the minor for Pakistan.
Desai said she had also filed a petition before the Canadian Superior Court (Family Division) and successfully obtained an order which directed the respondent to hand over custody of the minor to her by no later than March 15, 2011. The court also granted her legal custody of the minor.
After obtaining the order she had also approached the Royal Canadian Mounted Police, who issued warrants for Niazi’s arrest for parental abduction.
Her counsel added that Niazi had no right to custody of the minor according to Canadian or Muslim family laws of Pakistan. Desai submitted that there was no legal marriage between them and the minor was born from their cohabitation. She said according to Pakistan’s Islamic laws, Niazi had no right to the custody of the minor.
Bajwa said that Desai was a Canadian national as was the minor.
Niazi had not obtained Pakistani citizenship for the minor, the counsel added, and legally the minor was a citizen of Canada and could not live in Pakistan according to order of the Canadian Superior Court.
Published in The Express Tribune, April 13th, 2011.
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