' SYED MUHAMMAD FAROOQ SHAH, J.---The applicant named above preferred the instant Revision Application praying therein to set-aside the impugned judgment and decree of Appellate Court on the grounds as set forth in the memo of revision application.
2. In Civil Suit No. 371 of 2011, filed in the Court of IVth Senior Civil Judge, Karachi (East), the applicant has prayed for declaration that actual and genuine name of plaintiff's father is 'Iftikharuddin' son of Abdul Ghani' instead of 'Saleemuddin' which is liable to be rectified in the record of rights. Issuance of correction of father's name in matriculation certificate and CNIC have also been prayed. On pleading of the parties, the contesting issue as framed by the trial Court is that as to whether the actual and correct name of plaintiff's father is 'Iftikharuddin' instead of 'Saleemuddin'. It appears that on conclusion of evidence adduced by both parties, the suit was decreed on dated 31-1-2012 as prayed for, with no order as to costs. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, the Board of Secondary Education through its Secretary has filed Civil Appeal bearing No.61 of 2012. By pronouncing the judgment on dated 19-2-2013, the learned IIIrd Additional District Judge, Karachi (East) dismissed the suit and allowed the appeal.
3. Brief facts of the case in hand are that in birth certificate, the actual name of the applicant was written as Jamsheed Ali alias Papoo son of Iftikharuddin in the record of Metropolitan Corporation; his father Iftikharuddin had expired at Lahore on 23-2-2002; that the applicant/ plaintiff has four brothers and four sisters. It is averred that Salma Shehzadi, sister of plaintiff, was married with defendant No.2 namely Saleemuddin, settled at Karachi, being issueless they adopted the applicant/plaintiff as their son when no was four years of age. On adoption, the father's name of applicant was changed to be 'Saleemuddin' (brother in law of applicant) instead of actual father name 'Iftikharuddin'. With the passage of time, the applicant/plaintiff has attained the age of 20 years and passed matriculation examination from Karachi Board in the year 2006, in which his father name has also been written Saleemuddin, though the actual name of applicant/plaintiff's father was 'Iftikharuddin'. The suit was contested by respondent No.
4. Remaining respondents Nos. 1 to 3 and 5 (NADRA) have almost consented the change of father's name of applicant in documents. In their evidence, the applicant and defendants Nos. 1 and 3 have given the statement in favour of applicant.
4. Arguments advanced by learned counsel for the applicant and respondent No.4 have been considered and record has also been perused with their able assistance.
5. Mr. Muhammad Aziz Khan, learned counsel for the applicant, at the very outset submitted that the Appellate Court did not consider that 'adoption' is not admissible in the Injunction of Islam or in the Constitution of Pakistan 1973, as no one is authorized to deprive someone from his basic fundamental rights to be called in the name of his real father. It is next submitted that the applicant was four years of age when he was adopted by his sister and brother in law (Saleemuddin). At that time, he was minor and since he become major, he filed the suit, prayed therein to be called in the name of his real father's name and his such prayer was granted by the trial Court. It is next contended by the learned counsel for the applicant that in impugned judgment and decree, the Appellate Court did not discuss the issue relating to the points for determination, therefore, the decision thereon and the reasons for impugned judgment and decree are illegal and not sustainable in the eye of law and thus liable to be set aside, particularly, the evidence adduced by the parties have not been considered. In support of his contention, learned counsel placed his reliance on the following citations:-- "Board of Intermediate and Secondary Education v. Muhammad Zaheer Ahmed 1994 MLD 2208, Administrative Committee of High Court of Sindh and another v. Arjun Ram K. Talreja and another 2008 SCMR 255 = 2008 PLC (C.S.) 376, The Board of Intermediate and Secondary Education, Sargodha v. Mst. Surriya Andleeb 2009 MLD 1252, Zainub Bibi v. Mst. Majidan Bibi (1988 MLD 837), Bashir and others v. Ilam Din and others PLD 1988 SC 8, Manzoor Hussain v. Zahoor Ahmed and 4 others 1992 SCMR 1191 and Nawab and 3 others v. Qaisar Abbas (2006 YLR 721).
6. Conversely, Ms. Nazia Hanif, learned counsel for respondent No.4 straight away argued the instant Revision Application without filing any objection or counter affidavit and submitted that the applicant was adopted by his sister who was married with Saleemuddin and as per their own wishes, the father name was changed as Saleemuddin (husband of his sister) instead of Iftikharuddin. Learned counsel submitted that admittedly there is no error or mistake on the part of Board of Secondary Education and the question of declaration as provided under section 42 of Specific Relief Act did not safeguard the right for such legal character. Learned counsel submits that the instant Revision Application is liable to be dismissed being mis-conceived and not tenable in law. In support of her contention, learned counsel placed reliance on the case of Muhammad Hamdan Sheikh v. The Chairman, Board of Secondary Education, Karachi (PLD 1998 Karachi 59), Board of Intermediate and Secondary Education v. Muhammad Ishaque (2006 CLC 1850), Muhammad Arshad and another v. Mian Noor Ahmed and others (2008 SCMR 713).
7. From perusal of record, it transpires that applicant adduced sufficient evidence before the learned trial Court wherein it is narrated that the actual and real father of plaintiff is Iftikharuddin' and since the applicant was adopted by his brother in law namely Saleemuddin, therefore, his name was appearing in the testimonials of Matriculation and CNIC and such fact has also been supported by Saleemuddin in his evidence by deposing that the applicant got admitted in the School and in admission form he got his father's name to be 'Saleemuddin'. There is no denial that actual father's name of applicant is 'Iftikharuddin' and not 'Saleemuddin'. Apparently, there is no error or mistake on the part of the applicant as he was minor of four years of age when his sister Salma and her husband Saleemuddin adopted him as their son and they had entered the name of his father to be 'Saleemuddin' instead of real father's name 'Iftikharuddin'.
8. It is not out of context that 'Adoption' is legalized recognition of a person as one's son/daughter, which cannot be revoked in the Hindu adoption and Maintenance Act 1956 but the adoption in Mohammadan Law has merely the reception of a person into adoptive father's family, Islamic views on adoption are generally distinct from practices and customs of adoption, raising a child who is not one's genetic child is allowed and, in the case of an orphan, even encouraged. Under the Islamic concept, the child does not become a true child of the "adoptive" parents. For example, the child is named after the Biological, not adoptive father, the child is also a non-Muhram to members of the adoptive family. Thus many religious scholars says that it is forbidden by A Islamic law to adopt a child (in the common sense of the word), but permissible to take care of another child, which is translated into Arabic as Kafala'. The adoptive child becomes a 'mahram' to his adopted family, if he or she is breast-fed by the adoptive mother before the age of two years.
There can also be confusion between a child that has been orphaned and one who has been abandoned but is presumed to have living parents. It may be noted that in Pakistan there is no law of adoption inasmuch as that Islam does not recognize adoption. To ascertain the religious sanctity or otherwise of adoption, an important fact as narrated in 'Wikipedia encyclopedia' is that Prophet Muhammad (SAWW) himself had adopted a child and Hazrat Muhammad (SAWW) was fed by an adoptive mother during first two years of his life. Relevant issues include the marriage between 'Hazrat Zayed ibn Harithah's' ex-wife and Hazrat Muhammad (SAWW). A hadith involving between (Hazrat Bibi Aisha' and 'Hazrat Abu-Hudhayfah ibn Utbah's' adoptive son 'Salim mawla Abu Hudaifa' states:-- "Abu Hudhaifa, one of those who fought the battle of Badr, with Allah's Apostle adopted Salim as his son and married his niece Hind bin Al-Wahl bin 'Utba to him' and Salim was a freed slave of an Ansari women. Allah's Apostle also adopted Zaid as his son. In the pre-Islamic period of ignorance the custom was that, if one adopted a son, the people would call him by the name of the adopted-father whom he would inherit as well, till Allah revealed: "Call them (adopted son) by (the names of) their fathers". (33.5)
9. The personal laws governing the Hindhus and Sikhs, recognize adoption and creation of rights in the adopted son, Amongst Muslims adoption is not recognized by their personal laws, therefore, the name which has been given by the adoptive father to the applicant is against the Islamic injunction. So far as the citations relied by learned Counsel for the respondent No. 4 are concerned, the case of Pereira. Was on different footings. In Board of Education (2006 CLC 1850) the dispute was pertaining to date of birth and not pertaining to the correction in the name of father. In the case of Muhammad Arshad and another, there was also a dispute of date of birth and not the change of father's name. Interestingly, some citations relied upon by learned counsel for the applicant are also not attracting as in the case of Administrative Committee High Court of Sindh, the dispute was pertaining to date of birth entered in service record as Mr. Talreja, District and Sessions Judge claimed alteration and correction of date of birth to bring it in conformity recorded in the municipal record. Citation NLR 2010 Civil 2005(sic) is also on different footing and in different situation. In the case of Bashir and others reported as PLD 1988 SC 8, the dispute in the case was related to the inheritance and entirely upon an assumption of legitimacy as the rules of Mohammadan Law relating to acknowledgment by a Mohammadan of another as his son are rules of the substantive law of inheritance and such acknowledgment unless certain impediment exists, confers upon the person acknowledged the status of a legitimate son capable of inheriting.
In the case of Manzoor Hussain v. Zahoor Ahmed and 4 others 1992 SCMR 1191, the Hon'ble Supreme Court held that Islamic law leans in favour of legitimization, rather than stigmisation. It was held by apex Court that general impression created against marriages of prostitutes no longer holds field under Islamic dispensation as under Islamic law, there is no bar for a women who has been a prostitute, to go through process of `Tauba' and led normal married life with a view to advance Allah's purpose. In the case reported as 2006 YLR 721 Lahore (Nawab and 3 others v. Qaisar lqbal), the question of legitimacy was elaborated.
10. The crucial question before the Courts below was as to whether the applicant adduced sufficient evidence by examining himself as well as his witnesses, that name of his adoptive father is appearing in the testimonials and CNIC, which needs rectification. I do not think that there was any question of mis-appreciation of evidence as the respondents Nos. 1 and 2 have also given the father's name of plaintiff as 'Iftikharuddin'. The trial Court has rightly observed that the father's name of plaintiff is 'Iftikharuddin', particularly, respondents have not categorically denied the assertions made by the applicant/plaintiff.
11. Crux of aforementioned discussion is that I do not found any illegality, gross irregularity or error in the judgment and decree dated 31-1-2012 rendered by Senior Civil Judge decreeing the suit of applicant. There appears to be no justification to interfere with the same but the C learned Appellate Court without appreciating the evidence available on the record has dismissed the suit in appeal filed by respondent No. 4 and held that "the learned trial Court has taken lenient view, otherwise there is own admission of respondent No. 1/plaintiff that no cause of action accrued against the appellant", which finding/observation is not tenable in law. In the circumstances of the case particularly keeping in view the Islamic adoptional jurisprudence, the judgment delivered by the learned trial Court on 31-1-2012 is restored. Consequently, the judgment pronounced by the Appellate Court on 19-2-2012 and decree dated 1-3-2013 in Civil Appeal No. 61 of 2012 is set aside.
12. Resultantly, the instant Revision. Application is allowed with no order as to costs.