P L D 2003 Lahore 264 (PLP)

‑‑‑‑Art.128‑‑‑Legitimacy‑‑‑Child who was born within six months of a valid wedlock was a legitimate child under Islamic Law. Ch. Muhammad Yousaf for Petitioner. Brief facts in this writ petition are that petitioner got married with the respondent‑wife in an exchange marriage. Out of the wedlock a minor was born. Later on dispute arose and the respondent‑wife filed a suit for dissolution of marriage and also suit for recovery of maintenance allowance, which were consolidated. These suits were hotly contested by the petitioner/defendant. The petitioner filed written statement in suit for recovery of maintenance allowance and made preliminary objection that respondent No.2 minor is not his daughter and she is illegitimately born within 5 months after the marriage, therefore, he is not responsible for her maintenance allowance. Issues were formulated, evidence was produced and the learned Judge Family Court, Shahpur adjourned the suit for recovery of maintenance sine die till the decision of status of legitimacy of the minor by the Civil Court and decreed the suit for dissolution of marriage vide judgment and decree dated 8‑4‑2002. An appeal was filed by the respondent and vide judgment and decree dated 30‑11‑2002 findings of learned Judge Family Court were reversed and this judgment and decree is impugned in the instant writ petition.

2. The arguments advanced by learned counsel for the petitioner are that the learned Appellate Court has failed to appreciate the evidence of the petitioner and has acted with material irregularity and illegality while passing the impugned judgment and decree on the sole evidence of the mother of respondent No.2, who has been stating in her evidence that she was asking for a pardon from the petitioner and as the petitioner was categorically denying that minor‑respondent No.2 is not his daughter, therefore, the learned Appellate Court had to consider this material fact and should not have to upset the decree passed by the learned Judge Family Court.

3. I have heard the learned counsel for the petitioner and perused the Judgment and decree passed by the learned Judge Family Court and that o the learned Appellate Court. The learned Appellate Court while reversing the judgment and decree passed by the learned‑ Judge Family Court held that the plaintiff and defendant married on 13‑6‑1999 and out of the wedlock minor Naheed was born on 13‑1‑2002 and the monthly income of the defendant/respondent is Rs.10,000 so he can easily pay the maintenance allowance to the minor. The learned Appellate Court while deciding Issue No.1 observed that mere denial of respondent from the paternity of the appellant‑minor is not sufficient as the minor‑appellant was born out of the wedlock with Mst. Razia Bibi within 6 months of their marriage and as such the appellant was born in a lawful wedlock of the respondent with her mother according to Sunni Schools. The presumption of legitimacy is so strong that in case a child is born after six months from the date of marriage and within two years of the dissolution of the marital contract either by the death of husband or by divorce, a simple denial for paternity on the part of husband would not take away the status of legitimacy of a child. In the instant case the respondent never disowned the paternity of the appellant before the institution of instant suit for recovery of maintenance allowance and the respondent's denial of paternity of the appellant during the maintenance suit has not sanctity under the law, therefore, the learned Appellate Court decreed the maintenance allowance in favour of the minor‑appellant at the rate of Rs. 1,000 per month since the institution of suit till her marriage and liable to he increased at the rate of 10% ever‑ year.

4. After perusing the evidence on record 2(iii) of the west Pakistan Faintly Courts Act (XXXV of 1964) and section 5, whenever a wife is charged with adultery, husband is required to substantiate his accusation of adultery by producing four witnesses, but if no evidence except himself is available he will take an oath or Lian‑‑‑and if wife also took oath no chances of retraction of charge remains with the husband and he can be punished if he retracts. The learned Appellate Court has rightly intervened as the Family Court being a Civil Court has inherent powers to proceed about the evidence in support of allegation of adultery but also would have stepped further to ask the concerned husband to take an oath or Lian. Under such circumstances no chances of retraction would be allowed to the husband and retraction would amount to acknowledgement by the husband. Under the Mahomedan Law and Sunni Faith a child who is born within six months of a valid wed lock is a legitimate child. The respondent‑miner is born in the 7th month of the wedlock and after six months of marriage and she is the lawful child of the wedlock.

5. It is also established in evidence of P.W.1 that birth entry of the minor was got registered by the father and she was born in the 7th month after the Nikah and when she was expelled from the house the minor was 5 months old and in cross‑examination she admitted that 1‑1/2 years ago she went to the house of the petitioner. She had tried her level best to rejoin her husband but the defendant does not allow her to join him and she has been asking forgiveness but the defendant does not forgive her. The word "forgiveness" is not concerning the legitimacy or illegitimacy of the minor, it is that she was trying for the re‑union but the defendant was not allowing her to come to his house. She produced a copy of register of birth Exh.P‑2, where the name of petitioner is registered as the father of the minor. The petitioner appeared as D.W.1 and also admitted that he got married on 3‑6‑1999 and the minor was born on 17‑11‑1999. The marriage was solemnized in exchange of his daughter, who has also filed suit for dissolution of marriage and suit for recovery of articles of dowry. He also admitted that he belongs to Sunni Sect and when his wife left the house his daughter was expelled by the family of the respondent.

6. In this way the judgment and decree passed by the learned Appellate Court is based on reasoning and principles of Mahomedan Law relating to Sunni Sect about the birth of minor, therefore, no substance exist in the instant writ petition to interfere in the judgment and decree passed by the learned Appellate Court. The instant writ petition is therefore, dismissed in limine. H.B.T./M‑1680/L Petition dismissed.