Friday, 10 August 2012

Article 199 and Article 35 of Constitution invoked

  Citation Name  : 2010  PLD  10     PESHAWAR-HIGH-COURT-NWFP
  Side Appellant : WAQAR AHMAD
  Side Opponent : NOMINA AKHTAR
                        S. 5, Sched. & S. 14---Constitution of Pakistan (1973), Arts.199 & 35---Constitutional petition---Suit for recovery of dower amount and maintenance allowance---Legitimacy of child ---Determination of---Suit for recovery of dower amount as well as maintenance allowance for "Iddat" period of plaintiff and maintenance of male child  having concurrently been decreed by the Family Court and Appellate Court, defendant had filed constitutional petition against said concurrent judgments and decrees of the courts below---Parties were married as was evident from the "Nikah Nama" and that fact was admitted by the parties---Defendant, however, disowned the child  born during existence of marriage and declared said child  as illegitimate ; alleging that he was born premature i.e. six months after marriage---Excepting the ultrasound test report, which too was not proved at the trial, defendant had led no evidence of any legal worth to be relied upon, despite having ample opportunity---Under Islamic Law, the legitimacy of a child  would be presumed if he was born within the period of 180 days i.e. six months and the maximum period so fixed was two years---No child , in circumstances, could be stigmatized as illegitimate , simply for the reason that he was delivered premature i.e. in six months or with unusual delay of two years---Under Art.35 of the Constitution it was ordained that the State would protect the marriage, the family, the mother and the child ---Intention and object of the framers of the Constitution, while inserting Art.35 was to protect the child  from all types of hostile forces, so that it was ensured that he was brought up in a conducive and favourable social environments; and more particularly to become a viable citizen with honour and grace---Judiciary being the essential constitutional organ of the State, it was required to place meaningful interpretation on the said provision of the Constitution, so that the We, the liberty and dignity of the child  was preserved and was fully guaranteed---Any child  who was stigmatized, declaring him as illegitimate  without legal proof, would be the worst degree of injustice to him as in that case the rest of life he had to spend almost in hell---If procreation of illegitimate child ren was a nasty social evil, declaring a legitimate child  as illegitimate  was the worst type of social evil which mischief must be suppressed by the court of law---Held, child  was legitimate  one and courts below had rightly held that defendant was bound to maintain the child  under the law---Impugned judgments and decrees were maintained,, in circumstances.

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