2009 PLP 962 (MLD)

MAZHAR HUSSAIN MINHAS, J.

The petitioner has assailed the judgment and decree, dated 18-4-2007 passed by learned Judge Family Court, Taxila, District Rawalpindi, whereby suit for recovery of maintenance allowance filed by respondents Nos. 2 to 4, has been decreed against him and minor respondents Nos. 3 and 4 have been awarded maintenance at the rate of Rs.500 per month each from the date of institution of the suit with increment of 10% per annum.

2. Precisely the facts of this case are that Mst. Taj Bibi respondent No.2 embraced Islam and contracted marriage with petitioner in October, 1997 against dower amount of Rs.50,000 which was paid in the form of 3-1/2 tola gold ornament. Petitioner was already married but his wife along with children was residing in District Abbotabad on account of some matrimonial differences and had tiled cases against him over there. Respondent No.2, who was employed in Federal Government School, Wah Cantt., as a maid, was kept by him in a rented house at Nawababad, Wah Cantt. During their cohabitation respondents Nos. 3 and 4 namely Khuram Shahzad and Kianat Shehzadi were horn who are in the custody of their mother. Meanwhile respondent No.2 was transferred to Karachi, but after some time she was posted back at Wah Cantt., by the efforts of petitioner. During her absence from Wah Cantt., the petitioner shifted her dowry articles from the rented house to his own house. In the meantime he effected compromise with his first wife and brought her back to his house. On her transfer to Wah Cantt., in September, 2001, respondent No.1 demanded back her dowry articles but the petitioner refused to return the same and ousted her along with the minors from his house. Since then respondents Nos. 2 to 4 were not paid any maintenance by the petitioner, which necessitated the institution of suit.

3. Petitioner contested the suit through written statement whereby he denied his marriage with respondent No.2 and also disclaimed the paternity of respondents Nos. 3 and

4. In view of divergent pleadings of the parties, following issues were settled by the learned Judge Family Court:-- (1) Whether plaintiff No.1 Mst. Taj Bibi is legally-wedded wife of the defendant? OPP (2) Whether the minors plaintiffs Nos. 2 and 3 are not descendants/son and daughter of the defendant Aftab Ahmad, if so, its effect? OPD (3) Whether the plaintiffs are entitled to get maintenance allowance from the defendant, if so, for which period and with what rate? OPP (4) Whether the suit of the plaintiff is baseless and frivolous one, therefore, the same is liable to be dismissed? OPD (5) Whether the plaintiff has no cause of action against the defendant? OPD (6) Relief. After trial learned Judge Family Court held that petitioner and respondent No.2 were legally-wedded spouses and respondents Nos. 3 and 4 being his legitimate children were entitled to get maintenance from him at the rate of Rs.500 per month each from the date of institution of the suit. Hence, present constitutional petition has been filed.

4. During the course of proceedings of this petition, learned counsel for the parties arrived at the mutual consensus that: (i) To affirm the factum of marriage and birth of Khurram Shahzad and Kaniat Shehzadi (respondents Nos.3 and 4) out of the wedlock the determination should be carried through DNA test; (ii) In case, it is proved through DNA test that the petitioner is biological father of respondents Nos. 3 and 4, he will concede to the judgment and decree of learned trial Court and will have no objection as to its execution. In view of the above consensus, petitioner and respondents Nos.3 and 4 were directed to appear before CAMB (Centre for Applied Molecular Biology), Government of Pakistan, Ministry of Science and Technology, Islamabad, for DNA test. Respondents Nos. 3 and 4 in compliance with direction of this Court attended the centre for DNA test, but the petitioner despite several opportunities did not appear. Learned counsel for the petitioner has submitted that even today he has tried to contact him on his mobile phone but he did not attend his call. It is evident from the conduct of the petitioner that he is deliberately avoiding the DNA test, therefore, the writ petition is being disposed of on merits. 5 Arguments of learned counsel for the parties heard and record perused. Learned counsel for the petitioner contends that respondent No.2 is Christian by faith and she is married to one Lawrence Masih resident of Chak No.12, Gurmula, Tehsil and District Nankana and without obtaining divorce from her husband she was not competent to contract marriage with any other person. Her conversion to Islam did not ipso facto dissolve her earlier marriage. According to learned counsel, respondents Nos. 3 and 4 are offsprings of said Lawrence Masih who has acknowledged their paternity through an affidavit annexed with the writ petition. Learned counsel submits that petitioner has categorically denied his marriage with respondent No.2, therefore, she should seek a declaration from a competent Court that she is legally wedded wife of the petitioner. It has been next contended by learned counsel that she has failed to prove the alleged Nikah with the petitioner through documentary evidence, therefore, respondents Nos. 3 and 4 whose paternity has not been acknowledged by the petitioner, are not entitled to receive any maintenance. Conversely, learned counsel for respondents Nos. 2 to 4 has vehemently controverted the above contentions and has supported the impugned judgment and decree.

6. I have given anxious thought to the submissions made by learned counsel for the parties and have gone through the record carefully.

7. The foremost question requiring determination in this case is whether by conversion of her faith, respondent No.2 was automatically relieved of the marital bond with her earlier husband Lawrence Masih or not. In this respect, guidance may be sought from the Principles of Mahomedan Law by D.F. Mulla, Section 20(4) of which provides that if one of the non-Muslim spouses in a country subject to Muslim Law, embraces Islam, he or she should offer Islam to the other spouse, and if the latter refuses, the marriage can be dissolved, and in a country where law of Islam is not the law of land, the marriage is automatically dissolved after the lapse of a period of three months after adoption of Islam by one of the spouses.

8. Respondent No.2 while appearing as P. W .1 has stated that three days prior to her marriage, she embraced Islam. A document to this effect was also written which was attested by the petitioner as a witness and original document was in his possession. Photocopy of that document Mark `A' was tendered by respondent No.2. Photocopy of Mark `A' (affidavit of respondent No.2) is available on this file in which it is recorded that she embraced Islam on 22-6-1997 before Maulvi Habib in mosque of 3-G, Wah Cantt., and it bears signatures of petitioner as marginal witness. Her statement has not been challenged in cross-examination, so it deemed to have been admitted. The petitioner in cross-examination denied the execution of above document in his presence, but he did not adduce any evidence to rebut it. However, he has appended affidavit of Muhammad Siddique Rizvi son of Aziz-ur-Rehman Chishti, Khateeb Jamia Masjid 3-G, Wah Cantt., who has claimed that Maulvi Habib ur Rehman Chishti was his brother who died on 17-3-1989 and any Christian woman did not embrace Islam in his presence as per record of the mosque. Since the deponent of this affidavit has neither appeared before the learned trial Court nor before this Court to affirm its contents, therefore, it cannot be taken into consideration. It is proved from the evidence on record that after repudiating Christianity, respondent No. 2embraced Islam. Although there is nothing on record to show that she invited her husband Lawrence Masih to accept Islam, but it is established that it was in his knowledge that she had changed her faith and was living with a stranger i.e. petitioner. Despite that he did not challenge their co-habitation in any forum. Therefore, presumption would be in favour of respondent No.2 that she offered him Islam but he refused to accept the same. Hence, his marriage with respondent No.2 stood dissolved. In this respect, reference may be made to "Sardar Masih v. Haider Masih and others" (PLD 1988 FSC 78):-- In "Mst. Zarina and another v. the State" (PLD 1988 FSC 105), also it has been held by Hon'ble Federal Shariat Court that "by conversion to Islam, a non-Muslim lady's earlier marriage with a non-Muslim Man, is dissolved and on account of her subsequent marriage with a Muslim, she is not guilty of any offence".

8. The next question which crops up for determination is as to whether respondent No.2 entered into marital bond with petitioner or not. In her statement before the learned trial Court, she has deposed that after her conversion to Islam she contracted marriage with the petitioner and they cohabited with each other for four years and during this period respondents Nos. 3 and 4 were born. In cross-examination, she has stated that Nikah Nama was also prepared, but during trial any such Nikah Nama has not been produced. Only photocopy of the Nikah Nama is available on this file but it is not legible. However, P.W.2 Abdul Majid and P.W.3 Malik Zafar Iqbal have supported her version and deposed that the petitioner and respondent No.2 resided together at Nawababad, Wah Cantt., and the petitioner introduced her as his wife. In rebuttal, there is solitary statement of the petitioner that he never contracted marriage with respondent No.2 nor he was having any concern with respondents Nos. 3 and

4. It may be pertinent to mention that at the time of recording of statement of respondent No.2, the learned Judge Family Court asked the minors as to who was their father upon which respondent No.3 by touching the petitioner and respondent No.4 pointing towards him said that he was their father. During arguments, learned counsel for the petitioner has submitted that under section 5 of the Muslim Family Laws Ordinance, 1961 a marriage solemnized under Muslim Law is required to be registered in accordance with the provisions of this Ordinance and non-registration of Nikah by Nikah Registrar invalidates the marriage. The contention of learned counsel is misconceived and devoid of any force. No doubt, under Clause (1) of section 5 of the Ordinance, a marriage solemnized under Muslim Law requires its registration but the Nikah does not become invalid due to its non-registration. If a person does not report the marriage to the Nikah Registrar for the purpose of registration under Clause (3), he may be held liable under clause (4) of this provision. Reference in this respect may be made to "Muhammad Akram v. Mst. Farman Bi" (PLD 1989 Lahore 200), in which it has been held that registration of marriage was compulsory under Muslim Family Laws Ordinance, 1961, but its non-registration in itself, would not invalidate the same, if factum of marriage was otherwise proved to have taken place in accordance with requirements of Islamic Law. Where, however, factum of marriage was in serious doubt between parties, non-registration might cast some doubt on its existence and solemnization. In "Abdul Majid Khan and another v. Mst. Anwar Begum" (PLD 1989 SC 362) the Hon'ble Supreme Court has laid down that the presumption regarding Muslim marriage, in absence of direct proof can be raised and acted upon, in the following instance:-- (a) prolonged and continuous cohabitation as husband and wife. (b) The fact of acknowledgement by the man, of the paternity of the children born to the woman, provided all the conditions of valid acknowledgement are fulfilled or; (c) The fact of the acknowledgment by the man, of the woman, as his wife. In "Bashir and others v. Ham Din and others" (PLD 1988 Supreme Court 8) also it has been held by the august Apex Court that Muslim Law presumes in favour of marriage in the absence of direct evidence on the point provided, however, evidence exists to show that a man and woman have lived together as man and wife for a long time. As discussed above, there is plenty of evidence on the file to show that petitioner and respondent No.2 kept on residing together and respondents Nos. 3 and 4 were also born as result of their cohabitation. Therefore, in view of the above judgments of the Honourable Supreme Court of Pakistan, status of petitioner and respondent No.2 as husband and wife is proved beyond any reasonable doubt. It would not be out of place to mention that despite the consistent claim of respondent No.2 that she is legally wedded wife of the petitioner, the latter has not filed any suit for jactitation of marriage to disprove her assertion.

9. Now comes the question of paternity of respondents Nos. 3 and

4. They were admittedly born during the lawful union of petitioner and respondent No.2 and as per latter's statement, the petitioner paid them maintenance through money orders even during their stay in Karachi after her transfer from Taxila. To establish the paternity of the minors, respondent No.2 has offered to get their DNA test of minors conducted, but the petitioner despite undertaking before this Court, has deliberately avoided to appear before the concerned authorities for DNA test without any lawful excuse. This fact alone is sufficient to prove his paternity of the minors leaving aside the other evidence available on record. An affidavit of Lawrence Masih, previous husband of respondent No.2 has been annexed with the file in which he has acknowledged the paternity of both the minors, but this document is not worth any consideration because said Lawrence Masih has not been examined before the learned trial Court to substantiate his version. It is crystal clear that he has tendered his affidavit out of grudge and malice against respondent No.2 who has severed her matrimonial relations with him by embracing Islam. It has been held by the Honourable Apex Court in "Bashir and others v. Ilam Din and others" (PLD 1988 SC 8), that legitimacy of a child may be presumed where there had been continuous cohabitation of the alleged parents, acknowledgement of the child by the father, treatment by the father of the mother and child, and repute and notoriety amongst members of the family, the community, all respectable members of the locality.

10. For what has been discussed above, I hold that respondent No.2 is legally-wedded wife of the petitioner and respondents Nos.3 and 4 are his legitimate children and are entitled to receive maintenance from him as decreed by the learned Family Court. Before parting with the judgment, it may be observed that the conduct of the petitioner in this case throughout remained highly contumacious rather shameful and he disowned the paternity of his legitimate offsprings just to avoid payment of maintenance which is his legal as well as moral obligation. He maliciously dragged them into litigation and humiliated them in the society. Therefore, it is deemed appropriate to impose special cost against him. Hence, the writ petition is dismissed with special cost of Rs.25000 which shall be paid to both the minor respondents in addition to the maintenance allowance awarded by the learned Family Court. M.H./A-36/L Writ Petition dismissed.