' IJAZ-UL-HASSAN KHAN, J.--- Through instant petition, Sharafat Ali Ashraf, petitioner, seeks leave against the order of learned Single Judge of Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 25-4-2008 whereby petitioner's Writ Petition No,847 of 2007 has been dismissed.
2. The facts gathered from the record of the case precisely stated are, that petitioner married Mst.
Fazal Elahi alias Saira, respondent No,3, on 18-12-2004. At the time of Nikah, cash amount of Rs,15,00,000 or a residential house and gold ornaments weighing 25 Tolas were fixed as dower. The amount of Haqulmehr was incorporated in the relevant column of Nikahnama. After some time, petitioner contracted second marriage on account of which relations between the petitioner and respondent No,3 became strained. Resultantly, in December, 2005, the petitioner expelled respondent No,3 from his house which led her to file suits for recovery of dower and maintenance allowance. Petitioner also filed a suit for jactitation of marriage. All these suits were consolidated.
On 11-9-2006 respondent No,3 gave birth to child namely, Anamta, respondent No,4. After that an amended plaint was filed by respondent No,3 impleading the minor as party praying for maintenance allowance of the minor. After framing necessary issues and considering the evidence on record, learned Judge, Family Court, Bahawalpur vide consolidated judgment, dated 1-11-2007 decreed suit for maintenance of both the respondents fixing Rs,1,000 per month each as maintenance allowance with increase at the rate of 10% per annum. Suit for recovery of dower was also decreed as prayed for, whereas suit of the petitioner for jactitation of marriage was dismissed.
Feeling aggrieved, petitioner filed appeal which was dismissed by learned Additional District Judge, Bahawalpur vide judgment, dated 12-3-2008. The petitioner challenged said judgment and decree by filing writ petition before learned Lahore High Court, Lahore, which also met the same fate vide order impugned herein.
3. Mr. Zafar Iqbal Awan, Advocate representing the petitioner, after taking us through the evidence on record, attempted to argue that impugned judgments of the Courts below suffer from the vice of misreading and non-reading of the evidence on record, and learned High Court has failed to appreciate law and facts and has not considered the attending circumstances of the matter, denial of paternity and signatures by the petitioner on Nikahnama and in this way sacrificed the substantial justice at the alter of misconception, technicality, supposition and conjectures. In the last limb of arguments, learned counsel submitted that application of the petitioner for D.N.A. Test of the minor to determine her legitimacy was rejected without any good reason, materially prejudicing the interest of the petitioner.
4. Having heared learned counsel for the petitioner in the light of the material on file, we find that learned trial Court has exhaustively dealt with all points of the case leaving no room for further consideration. It stands established from the evidence on record that respondent No,3 was legally- wedded wife of the petitioner. As per Exh.P.1, Nikah of petitioner with respondent No,3 was solemnized on 18-12-2004 and as per Exh.P.2, a child Anamta, respondent No,4, was born on 11-9- 2006.
5. While adverting to the same question, learned Additional District Judge observed that "Mst. Fazal Elahi is the legally-wedded wife of Sharafat Ali Ashraf and Anamta Ashraf was born out of this wedlock"
6. Likewise, learned High Court has also observed in para.5 of the impugned order that "apart from unchallengable proof of marriage between respondent No,3 and petitioner, the birth of respondent No,4, Anamta which could hardly be disputed, but astonishingly the petitioner just in order to avoid his legal liability went to such an extent that he has refused the paternity of innocent child which assertion cannot be appreciated at all".
7. The main pivotal point in cases of paternity and legitimacy is marriage. A valid marriage may be proved by direct proof or presumptive evidence. Seciton 339 of Mulla's Mohomedan Law reads:- "Paternity how established.--- (1) The paternity of a child can only be established by marriage between its parents. The marriage may be valid (Sahih), or irregular (Fasid), but it must not be void (Batil).
' Marriage may be established by direct proof, if there be no direct proof, it may be established by indirect proof, that is, by presumption drawn from certain facts. It may be presumed from prolonged cohabitation combined with other circumstances or from an acknowledgement of legitimacy in favour of a child.
(2) When the paternity of a child is established, its legitimacy is also established."
8. It is rule of substantive law that a child born during the continuance of a valid marriage and not earlier than the expiration of six lunar months from the date of such marriage or within a period of two years after the dissolution of the marriage shall be the conclusive proof that, the child so born is the legitimate child of the spouses provided the mother remained unmarried.
9. We have noticed that there is no evidence or proof whatsoever to affirm that minor was born after divorce, nor any evidence exists on record that respondent No,3 had been living in adultery.
Evidently, child is being disowned by the petitioner with the sole object and intention of avoiding the liability to maintain the minor child. There is not an iota of evidence on record to substantiate the frivolous and scandalous version B of the petitioner with reference to the accusation that child is illegitimate. The minor having born out the wedlock between the petitioner and the respondent No,3 would inevitably be deemed to be a legitimate child and as such lawfully entitled to be supported and maintained by the petitioner. Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624, Nazir Fatima v. Ghulam Fatima and others 1987 CLC 2073, Bashir Ahmed 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.
10. Adverting to the argument that application for D.N.A. Test of the minor was rejected without any justifiable reason, we find that the submission is not tenable. The application was filed for no other reason but to prolong the agony of the respondent. It may be pertinently mentioned here that respondent No,3 in her statement recorded during the trial expressed her willingness for D.N.A. Test of the minor but the petitioner did not opt for the test for reasons not far to seek.
11. Having re-examined the material on file in the light of the submissions of learned counsel, we find no infirmity legal or factual in the judgment and decree based on sound and cogent reasoning. The maintenance allowance fixed and upheld by the Courts below is quite justifiable taking into consideration all aspect of the matter. Learned counsel for the petitioner has not been able to point out any misreading or non-reading of the evidence justifying interference of this Court. The Courts below have given concurrent findings which are based upon substantial evidence and the petitioner has not been able to controvert the same during the trial, as such, the petitioner has failed to show any illegality or irregularity committed by the Courts below in the impugned judgments so as to warrant interference by this Court.
12. The petition is devoid of force. The same is dismissed and leave refused.