The Lahore High Court (LHC) here on Friday handed over a child to his Indian-origin Canadian national mother Roshni Desai. The court also returned passport of the mother and rejected a plea that under Islamic laws a Muslim child could not be handed over to a non-Muslim mother. The court also rejected the request of the counsel of Jahanzeb Niazi, Binyamin Khalil to restrain the lady from taking the child to Canada.
The court rejecting the plea 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 court added. Earlier court asked the counsel of both the parties whether they reached any consensus to resolve the matter. Advocate Binyamin presented 'agreed' conditions in written and claimed that the parties had honoured them.
However, Desai's counsel Aftab Ahmad Bajwa rejected the claim saying his client had directions from Canadian authorities not to sign any agreement. At this Binyamin asked the court to decide the case on merit and started his arguments challenging the jurisdiction of the court to decide guardianship of a child.
Advocate Bajwa intercepted and said the guardianship of three and half years Azan Sohail Niazi had already been decided by Canadian Court in favour of Roshni Desai. Advocate Binyamin responded to the argument saying if the mother had any order of Canadian court she should adopt due process for its execution. Which, he said was to contact Pakistani high commission in Canada. She could not seek relief directly from a court in Pakistan on the basis of Canadian court orders. The court however, asked the counsel, "You mean that a foreigner can not invoke Pakistani law.
The counsel diverted the court's attention towards alleged bad mental health of Desai claiming, she had been twice attempted suicide in Canada. He asked the court to order medical examination of the mother before deciding the case. He also objected presence of Canadian embassy official in the court on each hearing. However, he failed to defend his objection when the court observed that there was no harm if they come after their nationals.
Being annoyed from irrelevant arguments of the counsel, the court urged him to come up with some valuable points, which could be appreciated. At this Binyamin referred to Contact Act and said only offer and acceptance was sufficient to solemnise a marriage. The court remarked that the couple was not even enjoying status of husband-wife under Canadian law.
Desai's counsel pointed out that an illegitimate child could be handed over to father under Canadian law but in Pakistan the child had to be given mother. 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 court, therefore, allowed Roshni Desai to retain the custody of her son. The 28-year-old Roshni Desai, who belongs to medical profession, was happy on court decision. Talking to media persons, Roshni expressed his confidence in Pakistani courts.