' MOHAMMAD AZAM KHAN, C.J.--- The plaintiff respondent filed, two suits; one for recovery of dower and the other for maintenance allowance for herself and minor daughter, in the Court of Additional District Judge/Judge Family Court Hajira on 17th February, 2012 and 10th July, 2012, respectively. It was alleged in the suits by the plaintiff that she was ousted of the house after maltreatment by her husband. She was pregnant at that time. She lives with her parents. In the meantime she gave birth to a female child. The expenses of the respondents were paid by the parents of respondent No,1 and the defendant-appellant failed to provide any maintenance to them. After necessary proceedings, the trial Court decreed the suit for recovery of dower in favour of respondent No,1 to the tune of Rs,298,921/- and also decreed the suit for maintenance allowance from 18th November, 2011 to 26th June, 2012 to the tune of Rs,2000/- per month as past maintenance and from 26th June, 2012 onwards in favour of respondent No,1 and from 20th January, 2012 onwards in 'favour of respondent to the tune of Rs,2000/- per month. Dissatisfied from the judgment and decree, the appellant filed an appeal in the Shariat Court of Azad Jammu and Kashmir, which was dismissed through the impugned judgment and decree dated 23rd July, 2014, hence this appeal by leave of the Court.
2. Mr. Muhammad Asif Kiyani, advocate, counsel for the appellant, submitted that the judgment and decree of the Shariat Court is against law and the record. The marriage between the parties took place on 15th May, 2011. At the time of marriage, the wife, respondent No,1, was carrying pregnancy. The minor child born to the plaintiff is not legitimate child of the appellant, therefore, the appellant is not responsible for the payment of maintenance charges to the child nor can the minor claim as such. The learned counsel, like good advocates, submitted that although it is the case of the appellant that the minor daughter is not a legitimate child of the appellant, but the Lahore High Court in the case reported as Muhammad Aslam v. Additional District Judge and others (PLD 2003 Lahore 264) has observed that a child born within six months of a wedlock is a legitimate child under the Islamic Law. The learned counsel submitted that the child was illegitimate one, born to the respondent within six months of the marriage. A punchayat was convened at the house of plaintiff. In the punchayatnama (Ex.DA), it was settled that ornaments received by the plaintiff, wife, as dower, shall be returned by her and the plaintiff shall forego the right to receive the deferred dower amounting to Rs,200,000/-. The learned counsel submitted that Muhammad Rafique, Muhammad Afzal, Muhammad Azeem and Shafique, witnesses of punchayat, appeared and proved the contents of punchayatnama. The learned counsel submitted that the trial Court as well as the first appellate Court failed to peruse the record in true perspective. The learned counsel submitted that illegitimate child is not entitled to receive the maintenance charges. The learned counsel submitted that there is clear misreading and non-reading of the record. The document Ex.DA is proved but the Shariat Court illegally kept out the document. The learned counsel referred to and relied upon the case reported as Pavitri v. Katheesumma [AIR 1959 Kerala 319]. The learned counsel requested for acceptance of appeal and setting aside the decree passed by the trial Court and the Shariat Court.
' In the case reported as Pavitri v. Katheesumma [AIR 1959 Kerala 319], an illegitimate daughter was born to a Hindu female of Muhammadan male Kerala High Court observed that, "it is not correct to say that apart from the personal law of the parties, an illegitimate son will be entitled to claim maintenance on general principle that a person having begotten the child is bound to provide for its maintenance, if that is necessary. Apart from any rights conferred upon such a child by Statute or the personal law, there is no scope for filling back upon any general principles."
3. While controverting the arguments of the counsel for the appellant, Syed Habib Hussain Shah, advocate, Counsel for the respondents, submitted that the appeal merits dismissal. There are concurrent findings of the facts recorded by the two Courts, which are based on the record and the evidence. This Court normally doesn't interfere in the concurrent findings recorded by the two Courts. There is no misreading or non-reading of the record. The learned counsel submitted that marriage between the parties took place on 15th May, 2011. Under the Islamic Law, a child born within six months of a valid wedlock, is a legitimate child and the question of paternity of legitimacy of child cannot be decided by the Family Court. The learned counsel referred to and relied upon the cases reported as Muhammad Azhar v. The State [PLD 2005 Lahore 589] and Ghazala Tehsin Zohra v. Mehr Ghulam Dastgir Khan [PLD 2015 SC 327].
' The case reported as Muhammad Azhar v. The State (PLD 2005 Lahore 589) is a case of bail in the offences under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), wherein the husband leveled the allegation, against his wife that she had been committing zina in his absence and gave birth to an illegitimate child. The DNA test was conducted. The ratio of the case is that as to what is the evidentiary value of the DNA test at the stage of bail in a zina case.
' The case reported as Ghazala Tehsin Zohra v. Mehr Ghulam DastRir Khan [PLD 2015 SC 327] is a direct authority on the point, which will be discussed in the latter part of the judgment.
4. We have heard the learned counsel for the parties and perused the record.
5. The marriage between the parties took place on 15th May, 2011. The plaintiff-respondent filed a suit for dower and another suit for maintenance charges for herself and the minor daughter in the Family Court Hajira, on 17th February, 2012 and 10th July, 2012, respectively, on the ground that she has been ousted of the house by her husband after snatching the ornaments, who has not paid maintenance to the wife as well as. The minor daughter. The defence of the defendant appellant is that at the time of marriage the wife was pregnant, therefore, she was sent back to the house of the parents, where she gave birth to an illegitimate child within six months of the marriage. He stated that a punchayat was convened on 26th November, 2011, after the birth of the child. His case is that a punchayatnama (Ex.DA) was written at the time of punchayat and apart from other conditions, some conditions were that the wife will return the part of dower received by her at the time of marriage in the shape of ornaments and unpaid or deferred amount of dower shall be foregone by her, with certain other conditions. There were 16 witnesses of the punchayat, out of which four witnesses appeared. The punchayatnama was sent to the handwriting expert, with attested signatures of the plaintiff, respondent herein. The handwriting expert opined that the signature on punchayatnama is not that of the plaintiff, respondent herein. The trial Court drew the conclusion that the plaintiff was not party to the contents of punchayatnama. It cannot be - relied upon. For our own satisfaction we have gone through the statement of witnesses. There is no misreading or non-reading of the record. The trial Court as well as the Shariat Court have recorded findings on the basis of record. The plaintiff specifically alleged in her statement that ornaments were snatched by the plaintiff. Her statement was not challenged in cross-examination. It has been laid down in a number of cases by this Court that if a portion of the statement of a witness, which goes against a party, is not challenged in the cross-examination, it is deemed to be admitted as correct. As such, it is proved that the ornaments were snatched by the husband.
6. Although the defendant has not challenged the jurisdiction of the trial Court to the extent of dower, which was paid but subsequently snatched, however, we cannot shut our eyes from the law settled by this Court.In a number of cases, this Court has observed that once the dower is paid and subsequently it is snatched by the husband, the wife cannot file a suit under the Family Courts Act, 1993, for recovery of dower and the Family Court has got no jurisdiction to entertain the suit. In the case reported as Madhia Aftab and 2 others v. Khawar Hanif (2006 SCR 190), it was observed as under:- "4. We agree with the learned Judge of the High Court that suit is of civil nature and is governed by the provisions of sections 19 and 20 of the Code of Civil Procedure. It does not fall within the category of the cases which fall within the jurisdiction of the Family Court under section 5 read with schedule of the Family Courts Act."
' Similarly, in another case titled Benazir alias Yasmeen v. Khalil Ahmed and others (Civil Appeal No,258/2014, decided on 26th March, 2015), this Court observed, as under:- "6. We have perused the plaint. The plaintiff-appellant alleged in the suit that she was married to respondent No,1 and at the time of marriage a `Kabeen Nama' was executed by the defendant, respondent No, 1, herein, through which he agreed to give her four tolas golden ornaments and also one room measuring 12x12 feet, constructed in Plot No,205, Sector E/2, Bandral Colony, Mirpur. In para 4 of the plaint, she specifically alleged that defendant No,1 has snatched the ornaments weighing 4 tolas, consisting of Gani, ear-rings and a hand-ring. He snatched these ornaments and forcibly thrown her out of the room which was given to her in the dower. It is evident from para 4 of the plaint that the ornaments were given to her and she was also given the possession of the room measuring 12x12 feet, meaning thereby, that the dower which he has promised to pay, had been paid to her which was subsequently snatched. It is settled law that dower can only be paid once and subsequently if the dower which consists of some items, is snatched, then the suit for recovery of dower in the Family Court is not maintainable. It is only the Civil Court which has jurisdiction in the matter and a wife can file suit for recovery of the items in the Civil Court because after payment of dower these were her property."
7. The dower to the extent of Rs,98,921/- was paid to the plaintiff, respondent herein, in the form of gold ornaments, which, according to her, were snatched by the husband. The suit for recovery of dower to the tune of Rs,298,921/- was not maintainable. It was maintainable to the extent of deferred amount of dower amounting to Rs,200,000/-. The appeal is partially accepted, the decree of the Family Court and the Shariat Court is amended and the plaintiff-respondent is declared entitled for recovery of dower amounting to Rs,200,000/-.
8. Article 128 of the Qanun-e-Shahadat Order, 1984, deals with the birth during marriage. For brevity the article is reproduced as under: "128. Birth during marriage conclusive proof of legitimacy.-- (1) The fact that any person was born during the continuance of a valid marriage between his mother and any man and not earlier than the expiration of six lunar months from the date of the marriage, or within two years after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless---
(a) the husband had refused, or refuses, to own the child; or
(b) the child was born after the expiration of six lunar months from the date on which the woman had accepted that the period of iddat had come to an end.
(2) Nothing contained in clause (1) shall apply to a non-Muslim if it is inconsistent with his faith."
' The article, in unambiguous terms, provides that any person born during the continuance of a valid marriage between his mother and any man and not earlier than the expiration of six lunar months from the date of the marriage or within two years after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man. The legal presumption is in favour of legitimacy of a child unless it is proved otherwise, provided the child was born during the continuance of a valid marriage between his mother and father notwithstanding the facts that the child was born within 180 days after the first coitus between the couple. Under Article 128, every presumption is made in favour of legitimacy of the child. The presumption could be inferred from the surrounding circumstances. The Shariat Court of Azad Jammu and Kashmir in the case reported as Muhammad lqbal v. Master Muhammad Maqbool and others 2003 YLR 154 has observed as under:-- "6. Article 128 of the Qanun-e-Shahadat Order, 1984, regulates the matter which provides that when any person is born during the continuance of a valid marriage between the mother and any man and not earlier than the expiration of six lunar months from the date of the marriage that shall be conclusive proof of his legitimacy. In this case, marriage admittedly took place on 29.6.1997 while the baby was born on 18.12.1997 which if counted in lunar days, comes around to 173 days. There is a variation in the days of a month as far as a lunar month is concerned. Some times a lunar month is of 29 days only and sometimes it is of 30 days. However, it is unanimously accepted by the Jurists that lunar years is of 355 days, however, after every three years due to further variation a lunar year is of 353 days. Be that as it may, in the present case while counting in the lunar days, the birth of the baby took place within 170 days which is approximately six months. Under the circumstances when birth of the baby took place not before the six month, it cannot be said that baby is outcome of illicit relations between Gulshan Bibi and Master Muhammad Maqbool.
7. In the case of doubtful legitimacy where a view can possibly be taken in favour of legitimacy it must be referred as the legitimacy is rule of nature and whatever is natural is right. If a person is declared or deemed as illegitimate, it not only affects his personality, legal or social rights, but also affects the society as a whole besides honour and dignity of the entire family. It creates multiple problems like parentage, inheritance, legal rights etc. To avoid all the complications, the best course in the case like one in hand is to take a view which favours the legitimacy and this is nearer to the spirit of law as well."
9. It was forcefully argued by the counsel for the appellant that at the time of marriage, the wife was pregnant and she gave birth to an illegitimate child, therefore, maintenance charges cannot be granted to respondent No,2, the minor child. The proposition came under consideration of the Supreme Court of Pakistan in the case reported as Ghazala Tehsin Zohra v. Mehr Ghulam Dastgir Khan [PLD 2015 SC 327]. The facts of the case are that the respondent Ghulam Dastgir Khan filed a suit for declaration that he is not the father of two children born to his wife. During pendency of the suit, the plaintiff filed an application that DNA .Test be conducted, which was rejected. The plaintiff filed a revision petition which was accepted by the Additional District Judge. The defendant filed a writ petition in the High Court, which was dismissed. The defendants challenged the said order in the Supreme Court. The Supreme Court of Pakistan while interpreting Article 128 of the Qanun-e- Shahadat Order, 1984 and Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), has observed as under:-- "11. We may, at this point, add that the Qanun-e-Shahadat Order (`QSO') stipulates that when one fact is declared "to be conclusive proof of another [fact], the Court shall on proof of one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it" (emphasis supplied). This provision of the QSO [Article 2(9)] has to be reconciled with clause 1(a) ibid. It now remains to be seen as to how clause (a) of Article 128(1) of the QSO is to be interpreted.
Can an attempt be made to interpret Article 128 and Article 2(9) of the QSO harmoniously so as to save the entire Article 128 to the extent relevant for the present case. The stipulation in Article 128 is that the birth of a child within the period stipulated in Article 128 is conclusive proof that he is 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 envisioned in Article 128 are proved, and the date of birth is within the period specified in Article 128(1), then the Court cannot allow evidence to be given for disproving the legitimacy of a child born within the period aforesaid. How then is the husband's refusal to own the child to be dealt with? The answer follows.
12. It is a matter of concern that on such a vital issue we have not received much assistance at the bar as to how Article 128 ibid is to be interpreted. Redundancy is not lightly to be imputed to the legislature. For the purpose of harmonious construction of the said statutory provision, we may have resort to section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962) which Stipulates that "notwithstanding any custom or usage, in all questions regarding ... Legitimacy or bastardy ... The rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims". Since both parties before us are Muslims and section 2 aforesaid specifically refers to legitimacy or bastardy, resort must be made to the Muslim Personal Law (Shariat) for the purpose of reconciling what may appear to be conflicting provisions of Article 128 of the QSO. For this purpose, it is necessary to ascertain the rules of Muslim Personal Law when a person denies that he is the natural/biological father of children born within the period stipulated in Article' 128 ibid. The Muslim Personal Law (Shariat) is clear and well settled on the subject. Firstly, it provides that legitimacy/paternity must be denied by the father immediately after birth of the child as per Imam Abu Hanifa and within the post natal period (maximum of 40 days) after birth of the child as per Imam Muhammad and Imam Yousaf. There can be no lawful denial of paternity after this stipulated period. The Hedaya, Fatawa-e-Alamgiri and other texts are all agreed on this principle of Shariat. In the present case the daughter Hania Fatima was born on 21.3.2000 while the son Hassan Mujtaba was born on 9.2.2001. The very first denial of paternity appearing from the record is in the talaq nama (Ex.D3) which was made on 26.6.2001. Clearly, therefore, while applying the principles of Muslim Personal Law (Shariat) as mandated by the Act V of 1962, the respondent- plaintiff cannot be allowed to deny the legitimacy/paternity of the two children. This is also consistent with Article 2(9) of the QSO which, when read in the context of the present case, does not allow the Court to allow any evidence to be adduced to disprove legitimacy. The wisdom of this rule of Muslim Personal Law cannot be gainsaid, considering in particular the patriarchal and at times miogynistic societal proclivities where women frequently do not receive the benefit of laws and on the contrary face humiliation and degrading treatment. It is for the honour and dignity of women and innocent children as also the value placed on the institution of the family, that women and blameless children have been granted legal protection and a defence against scurrilous stigmatization."
10. The marriage between the parties took place on 15th May, 2011. Respondent No,1 gave birth to respondent No,2 on 18th November, 2011. The defendant for the first time, on 15.8.2012, after a period of nine months of the birth of child, while filing the written statement in suit for maintenance charges, challenged the legitimacy of the child. Even there is no mention of illegitimacy of the child in punchayatnama (Ex."DA"), relied upon by the appellant.
11. The presumption is in favour of the legitimacy of the child. Paternity of a child born out of a lawful wedlock normally carries presumption of truth in his favour. Mere simple denial could never take away the status of legitimacy as "child follows the bed". Every presumption was made in favour of legitimacy of the child. Mere denial by the father/appellant without any evidence, that he is not the father of the minor, cannot be accepted. The evidence of a woman would be sufficient to prove the parentage of a child. According to Sections 145 to 149 of the Majmooa-e-Qawaneen-e-Islam, edited by Dr. TaMZel-urRehman, the evidence of woman is sufficient proof of the parentage of a child. This view also finds support from the judgments of the Supreme Court of Pakistan delivered in the cases reported as Mst. Hamida Begum v. Mst. Murd 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].
From the record it is proved that the defendant-respondent failed to pay the maintenance charges to the wife and the child. There is no misreading or non-reading of the record. There is no illegality in the judgments and decree passed by the trial Court and the Shariat Court. The appeal merits dismissal. The appeal to the extent of maintenance charges is dismissed while the decree to the extent of dower is amended in the terms indicated in para 6. There will be no order as to the costs.