1. Dost Muhammad Khan, J.--Impugned in this Constitutional petition are the judgments and decrees of the learned Judge Family Court dated 15.03.2007 and that of the learned Additional District Judge-IV, Peshawar dated 19.10.2009.
2. The former granted'decree for recovery of dower amount as well as maintenance allowance far- "Iddat" period @ Rs.1000/- per month in favour of Respondent No. 1 and maintenance allowance @ Rs.1000/- with 10% annual increase in favour of Respondent No. 2, the male child, while the latter affirmed the decree in appeal.
3. 2 Arguments heard and record perused.
3. The parties married on 22.10.2003, as is evident from the "Nikah Nama" Ex. PW-1/1. This fact is admitted by both.
4. The petitioner is a serving doctor for the last 12/13 years while the respondent was working in a pharmaceutical company. While interacting in the course of business, they developed strong intimacy, resulting into a valid marriage.
4. The marriage took place in the house of the parents of the respondent. The couple lived happily, without any complaint by the petitioner's side, for more than 4/5 months in the house of the respondent's parents, however, it was on 26.02.2004 when the petitioner divorced her vide deed dated 26.02.2004.
5. Although, not expressly taken rather hinted upon, the plea of the petitioner is that during the period of union, he discovered at a later stage that the respondent had already conceived before marriage and in this way, he disowned the child i.e. Respondent No. 2, and declared him illegitimate.
5. The petitioner first procured a dubious ultrasound test report from a lady doctor, who never appeared in the Court to confirm it. The report dated 08.11.2003 states that the foetus was of four
(04) months.
6. The letter head, on which the report is written, is that of Prof, (late) Dr. Zakia Minhas but its author is not known till date.
6. The petitioner has admitted that before marrying respondent/plaintiff, he had married three other ladies and two of them were divorced while one is still in his wedlock. This conduct of the petitioner would show that he has developed an abominable tendency of marrying attractive ladies and after deflowering them, he then, discard them as rotten/useless commodity and pronounce divorce then, like a disposal tool.
7. Further plea of the petitioner is that the child/son was born on 26.04.2004 or round about, in view of ultrasound test report, the expected date of delivery given therein thus, on this ground too, he could not be held as a legitimate one.
8. While appearing as PW-1, the respondent/plaintiff strongly asserted that the child was born on 20.08.2004 which she delivered in her parents' house. This part of her statement was not challenged because it was not subjected to cross-examination nor evidence in rebuttal was led.
7. Keeping in view the preponderance of evidence on the factual controversy, the statement of the lady could not be discarded, moreso, when during the trial neither the petitioner applied for carrying out the blood grouping test of himself and the child nor prayed for DNA test, the more reliable and modern technique, an admissible piece of evidence under the law.
9. The above conduct of the petitioner apart, he in a very intriguing manner unilaterally procured/managed the dower relinquishment deed and two days thereafter, divorced the respondent,/ plaintiff. This was a fallacious and crude attempt on his part to avpid the liability to pay the dower and maintenance etc, which under the law he was liable to pay. The learned trial Court discarded this deed, dated 18.10.2003, for sound reasons because it was four (04) days before the marriage thus, was absolutely. unbelievable. It can be safely concluded that the same was forged, fictitious and fake one, as by then, neither the marriage had taken place nor any dower was fixed. From legal angle too,, as the "Nikah Nama" was executed on 22.10.2003 subsequent to the deed, therefore, have overriding and superimposing effect on the relinquishment deed which otherwise has got no legal worth because none of the two witnesses, who attested the same, were produced.
8. 10.It is interesting to note that the petitioner brought on file similar deed which is dated 25.02.2004, thus, the fraud practiced upon the respondent and the Court both is fully exposed through his own conduct.
9. 11.Even if the relinquishment deed, later in time is taken into consideration, then keeping in view the divorce deed written two days thereafter, loudly speaks, about the foul play committed by the petitioner with view to get rid of the present and future liabilities which he had earned under the marriage contract.
10. 12.The District Court of appeal, after discussing some merits of the case, mainly dismissed the appeal of the petitioner because it was filed after two (02) years of the judgment and decree of the trial Court. No reason, much less plausible and convincing, was shown for such a shocking delay, therefore, the Appellate Court was fully justified, giving such treatment to the appeal of the petitioner.
11. 13.The pivot of the arguments of learned counsel for the petitioner was that the child/son was illegitimate one because he was born premature i.e. six (06) months after the marriage, and the learned trial Court did not fairly attend to this aspect of the case and without application of judicial mind with reasonable care and caution also ignored the law on the subject, therefore, the impugned judgment of the trial Judge/Family Court was quorum-non-judice and the question of limitation does not arise.
12. He further stressed upon that because the respondent has got conception from some other person, before consummation of the marriage, therefore, burdening the petitioner with liability to pay dower and maintenance to the respondents was entirely unwarranted in law.
13. 14.Excepting the ultrasound test report, referred to above, that too, not proved at the trial in any manner, the petitioner has led no evidence of any legal worth to be relied upon. He was having ample opportunity, pleading before the trial Court for carrying out the DNA test or/and the blood grouping test which is a clear pointer towards his attitude and conduct, not allowing the truth to come on record. Now the entire edifice of his case is based on premature delivery, of the child which too, is not legally established but being a question of legal importance, therefore, requires to be answered in an authoritative manner by going through the history of Anglo Saxon law and the Islamic Injunctions on the subject.
14. 15.There is a long chain of authorities on the point of legitimacy and reliance may be placed on the principle laid down in the cases of (1) Mst Hameeda Begum (PLD 1975 SC 624), (2) Bashir & others (PLD 1988 SC 08), (3) Shah Nawaz & another (PLD 1976 SC 767), (4) Muhammad Riaz (1997 MLD 142), (5) Mst. Ghulam Fatima (1987 MLD 172) and (6) Muhammad Arshad (PLD 2008 Lahore 302).
15. 16.A radical change in line with the Islamic Injunctions has been introduced through enactment of. Article 128 of the Qanun-e-Shahadat Order, 1984, which has replaced the old Section 112 of the repealed Evidence Act. Under the new dispensation of justice because of the above provisions of law, the Islamic Injunctions on the subject, shall hold the field to the exclusions of all other laws in case/cases where the parties are Muslims.
16. 17.Even under the repealed provision of law, the legal presumption was in favour of legitimacy of a. child unless it was proved otherwise, provided the child was born during the continuance of a valid marriage between his mother and father notwithstanding the fact that child was born within 180 days, after the first coitus between the couple. This presumption shall operate even after the dissolution of marriage, subject to the condition that the mother remaining unmarried: The legal worth of this statutory presumption could only be dislodged by leading competent evidence to the effect that after the marriage the husband and wife had no access to each other at any time when the child could have been begotten.
17. Under the Mohammedan Law, the legitimacy of a child shall be presumed if he was born within the period of 180 days i.e. six (06) months and the maximum period, so fixed, is two (02) years, therefore, no child could be stigmatized as illegitimate simply for thereason that he was delivered premature i.e. in six (06) months or with unusual delay of two (02) years.
18. 18.Under Article 35 of the Constitution of Islamic Republic of Pakistan, 1973, it is ordained that the State shall protect the marriage, the family, the mother and the child. Although this provision cannot be stretched too much to fully cover the present controversy, however, the intention and object of the framers of the Constitution:while inserting this provision was to protect the child from all types of hostile forces, so. that it is ensured that he is brought up in a conducive and favourable social environments and more particularly to become a viable citizen with honour and grace. The Judiciary is the essential Constitutional organ of the State, therefore, it is required to place meaningful interpretation on the above provision of the Constitution so that the life, the liberty and dignity of the child is preserved and is fully guaranteed.
19. Any child, who is stigmatized, declaring him a illegitimate without legal proof, would be the worst degree of injustice to him as in that case the rest of life he has to spend almost in a hell. If procreation of C illegitimate children is a nasty social evil, declaring a legitimate child as illegitimate is the worst type of social evil which mischief must be suppressed by the Court of law.
20. 19.The Medico-Legal points on this subject are categorized in the following way--
(i) the average duration of, pregnancy; (ii)the maximum period of pregnancy; (iii)the minimum period of pregnancy; and the viability of a child; (iv)superfecundation; (v)superfoetation; and (vi)the paternity".
21. The renowned jurists/experts on the subject are unanimous on the point that the period that ordinarily elapses between the conception and delivery is called the duration of pregnancy. In estimating this period, the date of conception from a single coitus and the arrest of menstruation course, has been described by the medico-legal experts and those, who were attached to research work on the subject, not to be the most reliable piece of evidence because according to these experts a single coitus does not fix the day of conception but can be referred to the date of insemination. The spermatozoa retain their activity in the vagina for two and three days at the most and are capable to survive in the cervical canal, uterine cavity and fallopian tube for four to five days or slightly longer. The conception, however, usually occurs two or three days after coitus because spermatozoa are capable of retaining their power of fertilization long before their motility disappears. The exact time of conception during the intermenstrual period is not known. It is generally assumed that ovulation can occur on any day within the first week of the menstrual cycle and the egg cell probably perishes in a day or two after it is shed out, unless fertilized, therefore, fertilization may occur if spermatozoa are ready to unite with the egg cell in the fallopian tube at about this period. The research work thus, carried out, would sthow that the exact/actual duration of pregnancy in the female could not be fixed with high degree of accuracy, however, the assumed/assessed calculation, based on experience, is six (06) months to 280 days or ten (10) lunar months.
22. Sidney H Weddy refers to a case where a woman, aged 30 years, gave birth to a full-time daughter after a gestation of 210 days. The child was found crying at birth, had a good crop of hair, was well coated with vernix caseosa, measured 20 inches in length, and weighed seven pounds. The finger and toenails were fully developed and did suck the mother's breast vigorously, on being put to it.
23. What is the shortest period of gestation at which a viable child can be born, the latest research has confirmed and endorsed the Islamic point of view which fixes the minimum period of birth of a child as six (06) months and children born in between 190 to 210 days, after uterine life were found viable i.e. born alive and capable of being reared.
24. Mr. Hubbard, (Reference) (BMJ, 1988, 878 & 1076) has reported a case where an infant born at the beginning of the 7th month of pregnancy, weighed 15 ounces and at the age of six (06) weeks was in good health with increased weight 32.75 ounces.
25. As a result of extensive research work and experience, the medico-legal experts are fully in agreement that children born after six (06) calendar months or 180 days of uterine life may be viable and capable of continuing an independent life, apart from their mothers. Several instances have been quoted in this regard and because of the research work, after applying modern techniques, the experts are of the firmed view that children delivered in six (06) months or six & a half (6) months of gestation are viable and capable to survive. Even in some cases children born in the 5th calendar month survived for certain duration.
26. 20.The Islamic Injunctions on the subject deriving its credentials from the Divine law, thus get absolute approval, endorsement and confirmation from the modern experts on. the subject that children born in six (06) months after uterine life are viable and capable to survive.
27. This is a telling lesson for everyone to believe in the Divine law because when the minimum and maximum period for birth of a child was fixed by the Islamic Law by then no such modern research facilities and techniques were available in the field.
21. The combined study of the Islamic Injunction, the statutory law and the modern research work, carried out by the reputed experts, would thus, lead one to a definite conclusion that the period fixed i.e. six (06) months the minimum and two (02) years the maximum, was absolutely accurate and is not liable to be questioned on any premises whatsoever, therefore, a child born immediately after six (06) months after uterine life, strong presumption would be in favour of his legitimacy. The contrary view in this regard would be absolutely of no legal worth. This strong presumption, providing legitimacy to the child can only be dislodged through evidence of stronger degree of reliability to establish that while staying in one house/one room or at one bed, the mother and the father of the child did not indulge in coitus. In the absence of such evidence, labeling a child a illegitimate one would be the most detestable act on the part of the person doing so, as such declaration would be a blot on the escutcheon, the child and the mother both would be humiliated and disgraced and have to live ignominious life in the society for no fault of them.
28. 22.It is not the first case of its nature because it has been judicially noticed that such like unscrupulous fathers do disown their legitimate children to avoid the present and future liabilities by paying maintenance for feeding, dressing and educating them and in the cases of their divorced mothers, such children are to be deprived of their right of inheritance in the legacy to be left behind by them. The present case is a clear example of such dirty and nefarious designs.
29. 23.The petitioner has spared no efforts in disgracing, humiliating and stigmatizing the child and his mother through very cheap and deceptive tactics just to get rid of his liabilities and responsibilities, stated above. To deprive the mother of the child, the petitioner procured and managed a forged, fake and fictitious dower relinquishment deed and within two days divorced he which is another visible attempt on his part but surely a highly detestable one, however, due to the great fortune of the respondent, the petitioner miserably failed to substantiate this fallacious plea taken by him.
30. For what has been discussed above, judged from all angles and while relying on the law cited above more particularly the Islamic Injunctions, it is held that Respondent No. 2/the son, is a legitimate one, who was born from and during a valid wedlock between the petitioner, and the child's mother i.e. Respondent No. 1. Both father and mother of the child in the absence of any evidence in rebuttal are held to have indulged in continues coitus and she conceived the child from the petitioner thus, being his lawful father, the petitioner is bound to maintain the child under the law. Both the learned Courts below were fully justified in holding so thus, the impugned judgments and decrees are not open to any exception, therefore, are maintained.
31. This petition is dismissed with a cost of rupees ten thousand (Rs. 10,000/-), keeping in view, the gruesome and detestable conduct of the petitioner. Before concluding this judgment, we deem it appropriate to hold that the Respondent No. 1 may sue the petitioner for damages due to the defamation, caused to her and she may also apply to the PM&DC for the cancellation/suspension of license of the petitioner because it is established that the petitioner do not deserve to remain any more in the field of such a noble profession.
32. 24.With the above remarks, this petition is dismissed.