P L D 2008 Lahore 302 (PLP)

ALI AKBAR QURESHI, J.

This Constitutional Petition impugns the legality of order dated 1st of March, 2008, whereby the learned Judge of the Family Court Sheikhupura rejected petitioner's application with reference to the determination of parenthood of the child through DNA test.

2. Precisely the facts of the case are that Sughran Bibi, hereinafter to be referred as respondent No.1 instituted suit for dissolution of marriage also claiming maintenance for herself and the minor son Ahmed respondent No.2 with the averments that he was born in consequence of marriage between her and petitioner Muhammad Arshad.

3. Petitioner resisted and contested the suit by controverting the assertions being reiterated in the suit by filing written statement explicitly disowning and denying the factum of the birth of respondent No.2 out of the wedlock between him and respondent No.1. It was the case of the petitioner that respondent No.1 did not perform the matrimonial obligations during one month of their marriage life, inasmuch as, respondent No.1 left the petitioner and went to Saudi Arabia without petitioner's permission and consent. And on her return to Pakistan, respondent No.1 did not live with the petitioner except for a couple of days, and ultimately, left the house of the petitioner. At that particular point of time, neither respondent No.1 was pregnant nor did she disclose it to the petitioner at any stage. Petitioner next asserted that no birth certificate was enclosed with the plaint by respondent No.1 and the date of birth of the child too was conspicuous by its absence in the plaint. Petitioner claimed that neither the petitioner nor any of his family members had the knowledge as to the said birth of the child. Hence, the petitioner filed an application dated 20-2-2008 for carrying out DNA test with reference to the child so as to ascertain and determine his parentage. But the same was rejected by the learned Judge Family Court Shiekhupura by means of order dated 1-3-2008 impugned herein.

4. It transpires from the contents of the plaint that respondent No.1 gave birth to respondent No.2 before 8 months of the filing of the suit at the house of her parents who also bore the expenses towards the delivery of the child. Since then, petitioner did not pay maintenance to both the respondents 1 and

2. In nutshell, petitioner in the same breath disowning the child as his issue by denying maintenance and is also casting aspersion on respondent No.1 to have given birth to an illegitimate child.

5. The plea as raised by the petitioner with reference to legitimacy of the child entails far reaching impact, therefore, determination of this crucial and vital issue should not be taken in a cavalier manner. The accusation by a husband or his act of disowning the child born out of the wedlock is to be substantiated through tangible proof and credible evidence. Paternity of a child born out of the lawful wedlock invariably carried presumption of truth in its favour and mere simple denial can never take away the status of legitimacy, inasmuch as, according to Mohammadan Law "child follows the bed". Every presumption is made in favour of legitimacy of the child, is presumed to be an issue of his parents without acknowledgement or affirmation of the parentage on the part of father, the child follows bed (Firash).

6. According to sections 146 to 149 of Majmooa-e-Qawaneen-e-Islam Edited by Dr. Tanzeel-ur-Rehman, evidence of woman would be sufficient to prove parentage of a child. To elaborate this view, I am fortified by the case reported as Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 wherein, it was held that to establish the legitimacy of the child, evidence of the mother and the child is sufficient, and the superior Courts invariably leaned in favour of the legitimacy of the child in absence of any cogent and credible evidence to the contrary. Reliance can also be placed on Nazir Fatima v. Ghulam Fatima and others 1987 CLC 2073, Bashir Ahmed v. Ilam Din and others PLD 1988 SC 8, Rehmat Khan and 3 others v. Rehmat Khan and another PLD 1991 SC 275, Muhammad Tallat v. Mst. Yasmin Zohra and another PLD 1992 CLC 1180, Manzoor ul Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109, Muhammad Hussain alias Muhammad Yar v. Sardar Khan and 11 others PLD 1993 Lahore 575 and Muhammad Pervez v. Additional District Judge and others 2000 CLC 1605.

7. I have noticed that there is no evidence or proof whatsoever to affirm that miller son namely Ahmed was born after divorce, nor any evidence exits on record that respondent No.1 had been living in adultery. Evidently, child is being disowned by the petitioner in the proceedings currently pending against him with the sole object and intention of avoiding the liability to maintain the minor child. In fact, petitioner is denying his relationship with minor Ahmed solely on the ground that respondent No. 1 did not perform matrimonial obligations during one month of the marriage life and proceeded Saudi Arabia after one month of the marriage. The rational and logic being put forth by the petitioner does not in any manner substantiate his version being in conflict with principles of Fiqa, inasmuch as, according to Sunni School of thought, a child born after six months of the marriage or within two years of dissolution thereof, could be presumed to be a legitimate child of his father. Reliance in this, context can be placed on the case of Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624, Mst. Ghulam Fatima v. Mst. Inayet Bibi and 4 others 1987 MLD 172 and Muhammad Hussain v. Abdur Rehman and others PLD 1995 Pesh. 124. 'On this particular issue, Verse No.15 Surrah Ahqaf (Part XXVI) provided the period of carrying child and his weaning is 30 months. The verse of the Holy Qur'an is quoted as under:

8. A reference from Majmoo-e-Qwaneen-e-Islam edited by Dr. Tanzeel ur Rehman is quoted for ready reference, wherein the following Hadith has been narrated at Page 870:

9. In the above quoted case of Mst. Hamida Begum ibid, the apex Court observed that according to Hanfi School of thought, a child born in wedlock is of his parents even if the husband has no access to the wife. In any case,, it is obligatory upon the husband who repudiates the child so born can only have resort the procedure of Liyan, by swearing before Qazi that child is illegitimate and result of adultery, and in that eventuality, the Court will pass two fold decree by dissolving the marriage and declaring the child as illegitimate. Such type of husband has to disown the child immediately on the birth of child or on having the knowledge thereof, and very strong and unimpeachable evidence is required to substantiate the factum of illegitimacy by proving that child was born after the lapse of three consecutive periods of "tohar" following the death or divorce by husband, as the Idat comprises of three periods of "tohar"

10. There is not an iota of evidence on record to substantiate the frivolous and scandalous version of the petitioner with reference to the accusation that child is illegitimate, and that admittedly he did not have recourse the Court of competent jurisdiction for Liyan, thus the minor Ahmed having born out the wedlock between the petitioner and respondent No.1 would inevitably be deemed to be a legitimate child, and as such lawfully entitled to be supported and maintained by the petitioner.

11. For the foregoing facts and reasons, I am of the considered view that this petition is palpably misconceived and devoid of any substance merits dismissal at limine stage of the hearing of the case. Order accordingly. M.H./M-40/L Petition dismissed.