Saturday, 12 July 2014

Child born after two years of divorce is legitimate

PLJ 2007 Lahore 1178
Present: Syed Hamid Ali Shah, J.
ZAHEER AHMAD--Petitioner
versus
Mst. NASIMAN BIBI alias NASIM BIBI and 3 others--Respondents
W.P. No. 5219 of 2006, decided on 9.1.2007.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 7--Muslim Family Laws Ordinance, (VIII of 1961), Ss. 8 & 9--Majmooa-e-Qawaneen-e-Islam, Ss. 146 & 149--Constitution ofPakistan, 1973, Art. 199--Constitutional petition--Dissolution of marriage on the basis of Khula--Legitmacy of a child born after 11 months and 5 days of desertion--Denying of maintenance to such child--Appreciation of evidence--Held: Allegation of husband of disowning the child born out of the wedlock, should not be given weight, without the strict proof in such regard to the contrary--Paternity of a child born out of the lawful wedlock has a presumption of truth in its favour; simple denial could not take away the status of legitimacy--Such child is presumed to be an issue of his parents without any acknowledgement or affirmation of the parentage on the part of father--Further held: Evidence of the mother and the child was sufficient to prove the legitimacy of a child, in the absence of any cogent evidence to the contrary--Mother of the minor had been living in adultery--Child had been disowned in the proceedings against the petitioner for recovery of maintenance to the minor--Relationship had been denied to escape the liability to maintain the child--Husband had not approached the Court of competent jurisdiction for "Liyan"--Thus, the minor born out of the wedlock was a legitimate child and as such was entitled to be maintained by the petitioner.
      [Pp. 1181, 1182 & 1185] A, B & K
PLD 1975 SC 624; PLD 1988 SC 8; PLD 1991 SC 275; PLD 1993 Lah. 575; 1987 CLC 2073; 1992 CLC 1180 & 2000 CLC 1605, ref.
(ii)  Islamic Law--
----Principles of Fiqh--According to Sunni School of thought, a child born after 6 months of marriage or within 2 years of dissolution of marriage would be presumed to be a legitimate son of his father--According to Hanfi School of thought a child born in wedlock is of his parents, even if the husband had no access to the wife.
      [Pp. 1182 & 1183] C & D
PLD 1975 SC 624; 1987 MLD 172 & PLD 1995 Pesh. 124, ref.
(iii)  Islamic Law--
----Procedure of Lian--Repudiation of child, procedure--Husband has to swear before Qazi that child is illegitimate and fruit of adultery, in that event the Court will pass a decree whereby not only the marriage will be dissolved but also the child will be declared illegitimate, such husband has to disown the child immediately on his birth or on having the knowledge of such birth--Strong and un-impeachable evidence is required to prove illegitimacy.     [P. 1183] E
Islamic Law--
----"ILLA" (       )--Manner of desertion--Procedure--Husband has to swear, he will stay abstained from his wife, in such event, the husband can desert his wife for a period of four months only--Desertion by the petitioner over a period of four months contravenes the injunctions of Islam.   [P. 1184] F & G
Verse No. 226 of Sura Al-BAQRA ref.
West Pakistan Family Court Act, 1964 (XXXV of 1964)--
----S. 7--Recovery of dowery articles, decree--Concurrent findings--Appreciation of evidence--Effect of admission--Contention--Dowry articles in view of non mention of detail in the list and price thereof, cannot be granted, was repelled--Admittedly the dowery articles were lying in the house of the petitioner; therefore no interference is justified. [P. 1184] H
Constitution of Pakistan, 1973--
----Art. 199--Muslim Family Laws Ordinance, (VIII of 1961), S. 8--Dissolution of marriage by way of Khula--Dowery articles formed part of consideration for khula was could not be considered at that stage--Petitioner was required to raise all points of law and fact in the written statement--Plea not raised before Courts below could not be considered for the first time in writ petition--Petition was dismissed.
      [Pp. 1184 & 1185] I & J
1996 SCMR 1170 and 1998 SCMR 593, ref.
Rai Muhammad Tufail Khan Kharal, Advocate for Petitioner.
Ch. Khalid Farooq Akbar, Advocate for Respondents.
Date of hearing: 9.1.2007.
Order
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 and decree 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 No. 1 & 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 No. 1 & 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 it's favour. Simple denial, would not take away the status of legitimacy; for according to Mohammadan 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 (Firash). 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 Vs. Mst. Murad Begum and others" (PLD 1975 S.C. 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 Vs. Ghulam Fatima and others" (1987 CLC 2073), "Bashir and others Vs. Ilam Din and others" (PLD 1988 S.C. 8), "Rehmat Khan and 3 others Vs. Rehmat Khan and another" (PLD 1991 S.C. 275), "Muhammad Tallat Vs. Mst. Yasmin Zohra and another" (1992 CLC 1180), "Manzoor ul Haq and 3 others vs. Mst. Kanzeez Begum" (1993 CLC 109), "Muhammad Hussain alias Muhammad Yar Vs.    Sardar   Khan   and   11   others"   (PLD   1993   Lahore   575)   and "Muhammad Pervez Vs. Additional District Judge and others" (2000 CLC 1605).
5.  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.
6.  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 vs. Mst. Murad Begum and others" (PLD 1975 SC 624), "Mst. Ghulam Fatima vs. Mst. Inayat Bibi and 4 others" (1987 MLD 172), "Maqbool Hussain vs. Abdur Rehman and others" (PLD 1995 Peshawar 124).
7.  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 Majmoo-e-Qwanen-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 access to the wife.
8.  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": --
9.  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 BAQRA (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.
10.  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:--

11.  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.
12.  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. Hon'ble Supreme Court of Pakistan has declared in the cases of "Amir Shah Vs. Ziarat Gul" (1998 SCMR 593) and  "Anwar  Ali  and  others  Vs.  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.
13.  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.A.)     Petition dismissed

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