2000 PLP 1605 (CLC)

Ch. Muhammad Rafiq Waraich for Petitioner. . Brief facts of the instant writ petition are that the petitioner was married with the respondent Mst. Zahida Parveen on 11‑7‑1994. Out of the said wedlock Haider Ali alias Arslan Pervaiz and respondent No.3 were born. The contention of the petitioner is that respondent No.3 is illegitimate child and is not born out of. the wedlock, as a cash loan of Rs.3,52,000 allegedly taken by Sh. Ejaz Ahmad step‑father of Mst. Zahida Perveen, the respondent‑wife remained in the house of her parents upto 7‑5‑1996, on her return to Sahiwal on 7‑5‑1996 she allegedly told the petitioner that her step father and her mother made her to lead immoral ulterous life and she allegedly kept relationship with one Qasim alias Shehar Yar Khan and out of that relationship she got pregnant during the period between 15‑12‑1995 to 7‑5‑1996, The petitioner allegedly got this pregnancy certificate by ultra-sound but did not allow abortion and Mst. Zahida Perveen was turned out from her house, she went to the house of her maternal‑aunt and gave birth to respondent No.3, therefore, respondent No.3 is allegedly off spring of fornication. The petitioner also got a criminal case F. I. R. No. 195 of 1997 registered under Article 10 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), against Mst. Zahida Perveen and her step‑father Sh. Ejaz Ahmad and Qasim alias Shehar Yar Khan. Mst. Zahida Perveen filed a suit for dissolution of marriage and suit for recovery of maintenance allowance for the respondents Nos.2 and

3. Suits were contested by the present petitioner. Both the parties led their oral as well as documentary evidence and vide judgment and decree, dated 29‑4‑1998 the marriage was dissolved and the suit for maintenance allowance was decreed and fixed as Rs.500 per month in favour of Haider Ali alias Arslan Pervaiz and in favour of respondent No.3 Sundas. Petitioner filed an appeal to the extent of maintenance allowance granted by the learned Judge, Family Court in favour of the respondent No.3. The appeal was dismissed vide judgment and decree, dated 20‑4‑2000. Through this writ petition he has challenged the concurrent finding of both the learned Courts below.

2. I have heard the learned counsel for the petitioner and carefully perused the record. It is very strange that although paragraph 3 of the written statement filed by the petitioner disclosed that the respondent No.3 is allegedly the outcome of fornication, but no issue as to the legitimacy of the respondent No.3 has been framed by the learned Judge, Family Court and neither the petitioner nor his counsel pressed the learned Judge. Court to frame the concerned issue. However, the evidence was led there being an issne on this point. P.W.1 Mst. Zahida Perveen appeared and stated that both the children were born out of the wedlock by the petitioner: The son was born at the house of the petitioner and the daughter was born on 23‑12‑1998 at the house of her parents and she came only to the parents house on 21‑10‑1996 and before that she was living in the house of the petitioner. Petitioner got registered F.I.R. No. 195 of 1997 under section

10. Offences of Zina (Enforcement of Hudood Ordinance (VIT of 1979) and she has been bailed out from that F.I.R. She stated that female child Sundas is from the wedlock of the petitioner/defendant. In her cross‑examination she categorically denied all the allegations that her entire atmosphere in her parents house is immoral. She has denied that she wrote a letter to the petitioner/defendant to get her voice‑tape recorded that her parents made her to do Zina. She also denied that petitioner/defendant was asked by her to abort the child. No such conversation took place between her and the petitioner. She also negated that she went to the house of Shahnaz and admitted before her that the pregnancy is illegal defendant appeared as his own witness as D.W.1 and he stated that the respondent/plaintiff was compelled by her parents to commit adultery and as a result of the same she got pregnant out of one Qasim alias Sheharyar. She communicated this news to him and his auntee, the conversation about abortion of the illegitimate pregnancy was recorded in cassette and the plaintiff also reduced this in writing. He did not abort the child but sent her to her auntees' house. In his cross‑examination he admitted that F.I.R. was registered at his instance. He negated that his brothers' wife Sajeela was caught red‑handed in Pearl Continental with a stranger. He also negated that Shehnaz is a woman of bad conduct and he has illegitimate relationship with her daughters. He voluntarily stated that he was not married with one Nageena and Nageena was younger in age, he was only engaged with her. He also negated that his two younger brothers Jamshed and Aurangzeb are his sons. He also admitted that on 25‑4‑1997 an agreement took place between him and Sh. ljaz and through this agreement Sh. Ijaz has given him Rs.3,00,

000. He voluntarily stated that Rs.3,00,000 were on loan. He admitted that Haider Ali was born after one year of the wedlock but he did not know his date of birth. The loan was taken by Sh. Ijaz before the marriage. Again said it was taken at the time of marriage and he knew. Sh. Ijaz from the time of marriage and he was the one who got procured his meeting with Shehnaz. Again said that the money was taken at the time of Nikah and after Rukhsati. He negated that after the girl was born, he got registered F.I.R. on 29‑7‑1997. The respondent is a woman of immoral conduct and that a specific question was asked by the learned counsel for the plaintiff that since the plaintiff is a pious woman, therefore, there was no divorce. The answer was that plaintiff being an immoral woman is being divorced now and he does not want to keep her any more, again said that he does not remember when the respondent came for the last time in his house. Again said that she went on 7,5‑1996 alongwith the son and he has not maintained the plaintiff and his son after 7‑5‑1996 as the plaintiff was a woman of immoral conduct. This contention of the D.W.1 was supported by D.W.2 and D.W.3.. In his examination‑in -chief he admitted that the respondent plaintiff is not daughter of his sister‑in-law and when the respondent/plaintiff came to the house of her parents on 15‑12‑1995, she admitted illegal pregnancy. In cross‑examination of D.W.2 ‑one chit was taken by learned counsel for the petitioner from the witness where he wrote as memory and where it is written that D.W.3 in his examination‑in‑chief stated that in December, 1995 the defendant sent the plaintiff to make return the loan advanced by him. In December, 1995 the defendant sent the plaintiff to make return the loan advanced by him. In December. 1996 the respondent/plaintiff went back. Again said after 5/6 months she went back and she was told by. the plaintiff that she is pregnant from Qasim alias Shaharyar and she requested him to get, the child aborted. The child was born in December, 1996. In his cross examination, he stated that he has not seen the respondent/plaintiff committing Zina.

3. Learned Judge, Family Court vide judgment and decree, dated' 29‑4‑1998 decided issues Nos. l, 2, 3 and 4 in favour of the respondent/plaintiff and against the petitioner/defendant. This judgment was confirmed by the learned appellate Court‑ From the perusal of evidence a material fact is very clear that only the petitioner as D.W.1 and two of his relatives as D.W.2 and D.W.3 have supported that respondent No.3 was illegitimate child. No better evidence has been produced by the petitioner. The evidence of the D.Ws. is contradictory. The girl was born on 30‑12‑1996 According to the evidence plaintiff left the house on 7‑5‑1996, and she was not given any maintenance after 7‑5‑1996 and this clearly shows that she was living in the house of the petitioner/defendant. Evidence of D.Ws.2 and 3 is totally immaterial for the minor girl being legitimate or illegitimate. Any child being born after six months of wedlock is a legitimate child unless otherwise is proved by solid evidence. If the petitioner was so sure that respondent No.3 was illegitimate child, he could have pressed in the Court for D.N.A. test or he could have brought other evidence on record to prove that the respondent No.3 was illegitimate. By mere registration of F.I.R. against the respondent is no proof for the alleged fornication committed by respondent No.

1. The evidence produced otherwise shows that the plaintiff was living in the house of the petitioner/defendant in the early days of the pregnancy and even the witnesses say something which is allegedly told to them by the respondent/plaintiff and the respondent/plaintiff has categorically denied that she has not told anybody that she was carrying illegitimate child.

4. A bare perusal of the complete evidence produced on record in respect of the alleged illegitimacy of the respondent No.3 shows that it is not confidence inspiring not trustworthy nor connected with the alleged commission of fornication or adultery imputed by the respondent No. l Islam has put great emphasis on the sacred right or reputation of a person in the society especially the woman, the weaker vessel, therefore, the strictest possible mode scrutinizing the evidence of the truthful witnesses who have not committed the minor sin and also the major sin is required to prove the allegation of Zina. The story narrated by D.W.1 itself sounds ridiculous‑ Is it possible that a woman who is carrying illegitimate child is going door to door telling about her commission of adultery and carrying her illegitimate pregnancy. In a society where a woman is preserved within the four wall of her house in sacred atmosphere and how it is possible that the petitioner who is husband of respondent No. l comes to know the early days of pregnancy and the alleged adultery committed by the respondent No. l with some stranger and he kept quite for a long time till the respondent No. l gave birth to a female child, then suddenly he become flared up and goes and registers F. I. R. against the respondent No. 1.

5. Legitimacy has to be determined in line with Islamic principles. Paternity is established by the marriage between the parents of the child. Under the Sunni law a child born after six months from the date of marriage and within two years of the termination of marriage is presumed to be legitimate child. In Shia law, there is a. little variation in respect of the period. The starting point for counting six months is the date on which the marriage is consummated and the other limit is of ten months from the dissolution of the marriage. In every case where legitimacy of child is questioned the primary evidence is of mother of the child, who is the best person to testify that the child is legitimate issue from her husband Whenever such evidence is proved to be disinterested, independent and impartial, it is always believed by the Court being truthful, trustworthy and confidence inspiring. The discharge of negative onus is placed on the father Muhammad Ishaque v. Nadeem Ahmad PLD 1987 Azad J&K 1.

6. Moreover, on the establishment of paternity of child the legitimacy is also established. The Muslim jurists have always considered the point of conception of pregnancy to be very essential during the valid continuance of lawful wedlock. In the present case it is established through evidence of the parties that the female child was born on 30‑12‑1996 and the plaintiff left the house of her husband on 7‑5‑1996 and it clearly established that during early conception of pregnancy she was living in the house of her husband, therefore, the legitimacy of respondent No.3 is established as she is born when the wedlock between the spouses is intact. Under the English law, a child born in wedlock is presumed to be legitimate. Their Lordships of the Privy Council held "the presumption of legitimacy follows the bed and is not ante‑dated by relations" Ashrufooddowla v. Hyder Hossain 11 MIA 93,

113. Even otherwise ordinarily proof of marriage is very cogent to establish his legitimacy and every presumption is made in favour of legitimacy of child and especially when legitimacy could be inferred from the surrounding circumstances Nasir Fatima v. Ghulam Fatima 1987 CLC 2073.

7. In case of legitimate and valid marriage father is bound to take immediate step as soon as he comes to know of any alleged adultery committed by the wife and he disclaims the child, the matter will be taken under the principle of Li'an. In the present case he remains silent for 9 F months as according to his own statement and when the child is born within the wedlock, he disclaims the child being illegitimate child, such an evidence is not; believable. Mere registration of F.I.R. carries no evidentiary value. Every surrounding circumstances in this case proves that the disclaimer of legitimacy of child has not been able to prove the same with cogent and reasonable evidence, therefore, both the judgments of learned Courts below E are unexceptionable. Instant writ petition is dismissed being without substance. Petitioner is burdened to cost of Rs.50,000 which is directed to be, paid to the respondents Nos. l and 3 for the redressal of the injury to their reputation. H.B.T./M‑180/L Petition dismissed.