2007 PLP 1145 (CLC)

SYED HAMID ALI SHAH, J.

Respondent No.1 approached the Family Court, through institution of suit for dissolution of marriage, recovery of dowry articles and for award of maintenance to respondent No.1 and the minor son. The petitioner resisted the suit through filing the written statement, wherein averments of the plaint were controverted and various preliminary objections were raised. Learned trial Court framed issues, recorded the evidence of the parties and on conclusion of the trial passed the decree. Resultantly, the marriage was dissolved, dowry articles were granted excluding the golden ornaments (weighing 15 Tolas) and the maintenance to respondent No.1 was allowed at a rate of Rs.1,000 (rupees one thousand only) for the period of Iddat only while the maintenance of respondent No.2 at a rate of Rs.800 (Rupees eight hundred) per month was granted vide judgment, dated 22-3-2005. The decree was assailed in appeal by the petitioner. Learned appellate Court vide judgment and decree, dated 6-6-2005, upheld the decision of the trial Court to the extent of maintenance granted to respondents Nos. 1 and 2 and the decree of trial Court qua the dowry articles, was modified. Learned Court viewing the evidence of the parties directed the petitioner to deliver the articles of dowry, lying in the room under lock and key, in the house of the petitioner. The petitioner has now assailed the decrees/ judgments of the two Courts below, in this petition.

2. It is contended by the petitioner that the dowry articles in view of non-mention of detail, in the list and price thereof, cannot be granted. Learned counsel has further submitted that the marriage has since been dissolved on the basis of Khula, thus the respondent is not entitled to dowry articles, which are considerations of Khula. The petitioner has emphasized that it is established from record that respondent No.1, had left the house of the petitioner on 2-12-2003 and respondent No.2 was born on 7-11-2004. Spouse remained aloof from each other. A child born after 11 months and 5 days of desertion, is not legitimate. Learned Courts have decided the question of legitimacy without framing a specific issue to that effect. Learned counsel for the respondents Nos.1 and 2 on the other hand, stood behind the impugned decrees. He went on to argue that the impugned judgments have been passed, after proper appraisal of the evidence on the record. He lastly contended that the petition is barred by laches and merits dismissal on that score.

3. I have heard the learned counsel for the parties and perused the material available on the record.

4. Respondent No.2 was born on 7-11-2004, at a point of time, when the spouse were living in desertion, since 2-12-2003. The child was born after 11 months and 5 days of desertion. The petitioner is denying the maintenance to the child, disowning him as his issue and accused respondent No.1, of having given birth to illegitimate child. Can such child be deprived of his right of being maintained? The question of legitimacy of child has a far reaching impact, therefore, determination of such question should not be taken lightly. The allegation by husband or his act of disowning the child born out of the wedlock, should not be given weight, without a strict proof in this regard to the contrary. The paternity of a child born, out of the lawful wedlock has a presumption of truth in its favour. Simple denial, would not take away the status of legitimacy, for according to Muhammadan Law "child follows the bed". Every presumption is made in favour of legitimacy of the child. Such child is presumed to be an issue of his parents without any acknowledgement or affirmation of the parentage on the part of father, the child follows bed (Farash). According to sections 146 and 149 of Majmooa-e-Qawaneen-a-Islam edited by Dr. Tanzeel-ur-Rehman, the evidence of woman would be sufficient to prove parentage of a child. In the case of Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624, it has been held that to prove the legitimacy of the child, evidence of mother and of the child is sufficient. Further discussion in this respect is not useful, as the superior Courts have constantly leaned in favour of legitimacy of a child, in the absence of any cogent evidence to the contrary. Reference in this respect can be made to the cases of Nazir Fatima v. Ghulam Fatima and others 1987 CLC 2073; Bashir and others 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 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 Lah., 575 and Muhammad Pervez v. Additional District Judge and others 2000 CLC 1605.

6. There is nothing on the record to establish that Muhammad Ramzan (minor son) was born after the divorce. Nor any evidence exists to the effect that respondent No.1/Mst. Nasreen Bibi, had been living in adultery. The child had been disowned in the proceedings against the petitioner, for the recovery of maintenance to the minor. There cannot be any other view, except that the relationship has been denied by the petitioner to escape the liability to maintain the child.

7. The petitioner has denied his relationship with Muhammad Ramzan, on the ground that he was born 11 months and 5 days after the desertion. This logic put forth by the petitioner is of no help to him, being contrary to principles of Fiqa. According to Sunni School of Thought, a child born after six months of marriage or within two years of dissolution of marriage would be presumed to be a legitimate son of his father. To dislodge such presumption one has to prove that the child was born within six months of marriage or more than two years after the divorce. As authority for this proposition, I may mention, the cases of Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624, Mst. Ghulam Fatima v. Mst. Inayat Bibi and 4 others 1987 MLD 172, Maqbool Hussain v. Abdur Rehman and others" PLD 1995 Pesh. 124.

8. Further as per Verse No.15, Surrah-Ahqaf (Part XXVI) period for carrying child and his weaning is 30 months. The verse is quoted as under:-- A reference from Majmooa-e-Owaneen-e-Islam edited by Dr. Tanzeel-ur-Rehman needs mention, where - the following Hadith is narrated at page 870:-- The apex Court in the case of Mst. Hamida Begum (supra) has observed that according to Hanfi School of thought a child born in wedlock is of his parents, even if the husband had no excess to the wife.

9. The husband who wishes to repudiate the child, so born, can only do so, by procedure of Liyan, that is to say, he swears before Qazi that child is illegitimate and fruit of adultery, in which case the Court will pass a decree, not only of dissolving the marriage but also declaring the child illegitimate. Such husband has to disown the child immediately on the birth of child or on having the knowledge of such birth. A strong and unimpeachable evidence is required to prove illegitimacy and one has to prove that child was born after the lapse of three consecutive periods of "Tohar" subsequent to death or divorce by husband. As "Iddat" comprises of three periods of "Tohar".

10. Adverting to issue of discretion, it was a tribal custom among Arabs during pre-Islamic era to keep a wife in agony, her husband (in certain cases) used to prolong divorce. The husband used to pronounce divorce and before the lapse of period of Iddat, he used to repudiate the same by recourse to the wife. Prolonging divorce by recourse to wife, shortly before lapse of period of Iddat, was disliked by Holy Prophet (pbuh). Hazrat Moosa Al Ashaari when approached Holy Prophet (pbuh) and asked about the prevailing custom in Ashaary tribe, he was told that Islam does not permit or recognize such divorce. Verse No.231 of Sura Al-Bagra (Part-II) was revealed in this background. Islam enjoins that husband has to live with his wife in a decent manner and has to divorce her in a fair manner.

11. According to "Illa" manner of desertion is prescribed, whereby a husband swears that he will stay abstained from his wife, in such event, the husband-can desert his wife for a period of four months only. Reference in this respect, is made to Verse No.226 of Sura Al-Baqra (Part-2):

Restraining women in order to tease them or enhance their agony is strictly prohibited in Islam. Relevant part of Verse No.231, Sura Al-Baqra Part-2 is quoted below:-

12. Applying these principles to the case in hand, desertion by the petitioner over a period of four (4) months, contravenes the Injunctions of Islam, needs no consideration.

13. So far as the question of recovery of dowry articles is concerned, the lower appellate Court has granted the respondent, those articles which were admittedly lying in the house of the petitioner, under lock and key. No interference in the appellate judgment is justified, as admittedly, these articles are lying with the petitioner and belong to respondent No.1. Additionally the question that these articles form part of consideration for Khula was not raised before the Courts .below, cannot be considered at this stage. Honourable Supreme Court of Pakistan has declared in the cases of Amir Shah v. Ziarat Gul 1998 SCMR 593 and Anwar Ali and others v. Manzoor Hussain and another 1996 SCMR 1770 that the defendant is required to raise all points of law and fact in the written statement. The grounds/pleas not raised before the Courts below cannot be considered for the first time in this petition.

14. There is no proof on the record to support the contention of the petitioner that child is illegitimate. More so, when the petitioner has not approached the Court of competent jurisdiction for Liyan, thus, respondent No.2 who is born out of the wedlock is a legitimate child and as such entitled has to be maintained by the petitioner. For the foregoing, the petition is without any merit and is accordingly dismissed. M.H./Z-21/L Petition dismissed.