Friday, 10 August 2012

Detailed judgment on various articles of Qanon-e-Shahadat

Interpretation of Articles 117,118, 119 and 128 of Qanoon-e-Shahadat Ordinance addressed in this judgment..

  Citation Name  : 2010  PLD  422     LAHORE-HIGH-COURT-LAHORE
  Side Appellant : KHIZAR HAYAT
                        S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Qanun-e-Shahadat (10 of 1984), Arts.117, 118, 119 & 128---Constitutional jurisdiction of High Court---Scope---Suit for recovery of maintenance allowance for minor son and dowry articles---Trial Court decreed the suit fixing maintenance at Rs.2000 per month and awarding Rs.30, 000 as alternative price of dowry articles---Defendant's appeal was dismissed by the Appellate Court---Defendant contended that the Appellate Court did not issue direction for conducting DNA Test to determine the legitimacy of the minor and that the courts below allowed plaintiff to enter and rely on documents which were not attached at the time of initiation of suit---Validity---Defendant's admissions regarding his knowledge of the minor's birth and entry of his name in defendant's Shajrah Nasab by Halqa Patwari led to the conclusion that his denial of legitimacy of his son was a ploy meant to avoid maintenance---Defendant admitted having divorced the plaintiff but failed to disprove the birth of minor one year before divorce---Birth during marriage was conclusive proof of legitimacy under Art.I28 of the Qanun-e-Shahadat, 1984---Objection to admissibility of documents produced by plaintiff was not tenable as the plaintiff produced the copy of birth certificate of the minor only after defendant refused to acknowledge the minor as his son---Even otherwise, birth certificate was a public document to which presumption of truth was attached, therefore, no exception could be taken to the admissibility of the same---Direction could not be issued for conducting the DNA Test as a matter of routine in cases where father refused to acknowledge his child  born during lawful wedlock because under Art.128 of the Qanun-e-Shahadat, 1984, a child  born during continuance of a valid marriage or within two years of its dissolution, if mother remained unmarried during that period, was conclusive proof that he was legitimate child  of that man, unless the man denied the same---Even otherwise, burden of proof under Arts.117, 118 and 119 of the Qanun-e-Shahadat, 1984 was on the defendant---Birth of the minor one year before divorce indicated that he was born during subsistence of marriage, presumption could safely be drawn that he was legitimate child  of the defendant---In view of the undesirable practice of denying legitimacy of one's own child  in order to avoid maintenance or exclude the child  form inheritance, issuance of direction for DNA Test was not proper---Conditions were not suitable in Pakistan for application of DNA Test owing to lack of skills and facilities required for DNA Test---Any mistake or malpractice committed in the course of DNA Test was tantamount to stigmatize the child  for the rest of his life---Possibility of error in the results of DNA Test could not be ruled out, therefore, attending circumstance of the case had to be taken into consideration---Point of time at which father denied paternity was a relevant factor, so considerable delay in raising the plea of illegitimacy was not permissible---Defendant denied paternity after more than eleven years of the birth of minor son and failed to produce any cogent evidence to rule out possibility of his cohabitation with the plaintiff---Concurrent findings of courts below could not be assailed in constitutional jurisdiction unless subordinate courts had exceeded jurisdiction, acted without jurisdiction or such findings were not based on any evidence---Findings of fact recorded by a court of competent jurisdiction could not be challenged through constitutional petition merely on the ground that the same evidence could be viewed differently---Courts below did not commit any illegality, material irregularity, misreading or non-reading of evidence---Constitutional petition was dismissed in circumstance.

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