HABIB ULLAH AMIR, J.--Through instant petition, petitioner has challenged the vires of orders dated 24.9.2014 and 7.4.2015 passed by the learned Judge Family Court, Multan, whereby he turned down the request of petitioner for summoning of Doctor/Pathologist of Noor Clinical Laboratory in additional evidence as well as the application to conduct DNA test. .
2. The facts, in brief, are that Mst. Shamim Mai, respondent No.1 instituted a suit for recovery of dowry articles, dower amount and for recovery of maintenance allowance and through her suit, averred that respondents Nos.3 and 4 were born out of the wedlock of petitioner with her and after framing of issues, parties were required to produce their respective evidence in response to which, evidence has been led and during proceedings petitioner moved two separate applications, i.e. one for seeking for summoning of Doctor/Pathologist of Noor Clinical Laboratory and the other to conduct DNA test. Both the applications have been controverted by parties and learned Judge Family Court after hearing the parties dismissed both the applications, hence this writ petition.
3. Learned counsel for petitioner argues that the impugned orders passed by learned Judge Family Court, Multan are against law, facts and liable to be set aside; that it has failed to be appreciated that petitioner took stance in written statement that respondents Nos.3 and 4 were not born out of the marriage of petitioner with Mst. Shamim Mai, respondent No.1 and to prove this fact, it was necessary to direct for DNA test and also to summon the Doctor/Pathologist of Noor Clinical Laboratory; that the impugned orders have been passed by learned Judge Family Court, Multan merely on the ground that petitioner had divorced respondent No.1 on 3.9.2012 and examination was conducted after two years of divorce. He places reliance on the judgments reported as "Mst.
Shamshad Bibi v. Bushra Bibi and 3 others" (PLD 2009 Islamabad 11), "Naseer Ahmed v. Mst. Azrah and another" (PLD 2010 Karachi 61).
4. I have heard the learned counsel for the petitioner and perused the record available on the file.
5. Petitioner/defendant in his written statement filed by him in suit for recovery of maintenance allowance etc. filed by Mst. Shamim Mai, respondent No.1 has averred that respondent No.1 was married with petitioner on 01.8.1996. However, she was a disobedient wife and it was decided by parties to adopt a child upon which plaintiff No.2 was adopted. Thereafter he purchased two plots, raised construction and one portion of said property was given to plaintiff/respondent No.1 whereas the other portion was rented out and the rent received was being spent on the maintenance for respondents. In addition the plaintiffs are being paid maintenance allowance.
Respondents Nos.3 and 4 were born but petitioner divorced her. On 9.3.2013, she instituted a suit for dissolution of marriage. However, same was dismissed for non-deposit of process fee on 27.4.2013 and now she has filed suit for recovery of maintenance allowance despite that plaintiffs are not entitled to receive maintenance allowance. During proceedings, petitioner made two separate applications out of which one is for summoning of Doctor/Pathologist of Noor Clinical Laboratory in additional evidence as petitioner had brought on record semen analysis report and the other for DNA test as the legitimacy of the children was disputed by petitioner.
6. Petitioner in his written statement has himself pleaded that plaintiff No.1 was not divorced by him and that plaintiffs are not entitled to maintenance allowance as legitimacy of plaintiffs Nos.3 and 4 had been disputed by him and as far as question of legitimacy is concerned, to ascertain question of legitimacy, though no special procedure has been provided in West Pakistan Family Courts Act, 1964. However, guidance may be sought from Article 128 of the Qanun-e-Shahadat Order, 1984 which has provided that birth of a child within the period stipulated in the said Article was conclusive proof that he was a legitimate child. Once the relevant facts as to commencement and dissolution of marriage and the date of birth of a child within the period envisaged in Article 128 of the Act (ibid) were proved and the date of birth was within the period specified in the same Article, then the Court could not allow evidence to be given for disproving the legitimacy of a child born within the said period. Petitioner himself has not denied that respondents Nos.3 and 4 were born when marriage between parties subsisted and under the Muslim Personal Law, legitimacy/paternity must be denied by the father immediately after birth of the child and after birth of the child, no lawful denial of paternity could be made after stipulated period. Law has not given a free licence to individuals and particularly unscrupulous fathers to make unlawful assertions and thus to cause harm to children as well as their mothers made after said stipulated period while for the honour and dignity of women and innocent children as well as the value placed on the institution of the family, women and blameless children have been granted legal protection and a defence against scurrilous stigmatization. To strengthen this point, reliance can be made to the judgment reported as "Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another" (PLD 2015 Supreme Court 327).
7. Birth certificates of minors Aleena alias Noor Fatima Nawaz and Munaza Nawaz have been brought on record and these also depict that both the minors were born when respondent No.1 was legally wedded wife of petitioner and as far as this fact is concerned, petitioner has not disputed the same. The plea that respondents Nos.3 and 4 were not born out of wedlock of respondent No.1 with petitioner has been raised for the first time in written statement and nothing has been brought on record from the petitioner's side to establish that petitioner had disputed legitimacy of children soon after their birth. He remained silent till he filed written statement in suit for recovery of maintenance allowance.
8. As far as DNA test is concerned, it has been observed in the case reported as "Mst. Shamim Akhtar v. Additional District Judge, Gujranwala and another" (PLD 2015 Lahore 500) that DNA test is always conducted with the consent of the person concerned and no such consent is available and once consent has not been given, DNA test could not be conducted. It has also been held in the case reported as "Khizar. Hayat v. Additional District Judge, Kabirwala and 2 others" (PLD 2010 Lahore 422) that direction could not be issued for conducting the DNA Test as a matter of routine in cases where father refuses to acknowledge his child born during lawful wedlock because under Article 128 of the Qanun-e-Shahadat Order, 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.
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.
Learned counsel for petitioner has placed reliance on "Mst. Shamshad Bibi v. Bushra Bibi and 3 others" (PLD 2009 Islamabad 11), "Naseer Ahmed v. Mst. Azrah and another" (PLD 2010 Karachi 61).
However, the facts and circumstances of the said cases are distinguishable as in the earlier case consent of the parties was given for DNA test and on their consent matter was directed to be referred to the institute concerned for conducting of DNA test. No illegality has been found in the impugned orders passed by learned Judge Family Court, Multan.
6. For the foregoing discussion, petition in hand merits dismissal hence the same is dismissed in limine.