TANZIL-UR-RAHMAN, CJ.--- The petitioner contracted marriage with respondent No.1, Mst. Nazima Shaheen on 14-8-1988. On the first night of the marriage it came to his notice that the hymen of the respondent was not intact. After some time he went abroad where on 5-1-1989 he was informed through a letter written by respondent No.1 to him that she was pregnant for three months. On 22- 2-1989 she was admitted to AI-Waqas Clinic, Islamabad. She gave birth to a baby on 23-2-1989.
The petitioner filed a private complaint under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979, before the Illaqa Magistrate, Murree, District Rawalpindi, against the two respondents namely, Mst. Nazima Shaheen and Muhammad Qaseem alleging, inter alia, that respondent No.1 gave birth to an illegitimate child after six months of marriage with him, as a result of illicit relations with respondent No.2. The learned Magistrate sent the said complaint to the learned Sessions Judge, Rawalpindi, who referred it to the learned Additional Sessions Judge. The learned Additional Sessions Judge, recorded the statement of complainant on 7-9-1989 and then entrusted enquiry under section 202, Cr.P.C. To the learned Assistant Commissioner, who recorded the statements of three witnesses, namely, Farkhanda Anwar, Amjad Parvez and Gul Faraz. He then submitted his report on 29-3-1990 to the learned Additional Sessions Judge to the effect that no case under section 10 of the said Ordinance was made out.
2. The matter came up before the learned Additional Sessions Judge, Rawalpindi, Camp at Murree, who after hearing the learned counsel for the complainant passed his judgment dated 7-7-1991 whereby the complaint was dismissed by him. The relevant portion of his judgment reads as under:-- "There is no evidence with the complainant to show that Muhammad Qaseem respondent No.2 was carrying on with the wife of the complainant. Similarly there is no evidence with him to show that he committed Zina with respondent No.1. The learned Enquiry Officer has placed reliance on 1984 P Cr. L J 352 and 353 wherein the birth of the child was not held to be a proof of Zina in the absence of direct evidence of the Offence. I agree with the learned Enquiry Officer and I am of the opinion that birth of baby exactly six months after the marriage does not give rise to the presumption that the baby was an illegitimate child and was the result of Zina between respondents Nos.1 and 2. The complaint is hereby dismissed."
3. Mr. Zulfiqar Abbas Naqvi, learned counsel for the petitioner submitted before us that the marriage was contracted on 14-8-1988. Rukhsati also took place on the same day. During the night, when the marriage was consummated, the petitioner came to know that the hymen of respondent No.1 was not intact. He, however, stayed with respondent No.1 for some time and then returned to Abu Dhabi on 26-12-1988. During this period he continued cohabiting with her. On 23-2-1989 the child was born after six months and nine days of the marriage. The complaint was filed on or about 30th August, 1989. The point urged by him before us is that according to the Lady Doctor Farkhanda Anwar of Waqas Nursing Home the baby born to respondent No.1 was a healthy, full term baby with a weight of 8 and half pounds and, therefore, the child is illegitimate. Admittedly, there are no witnesses to the sexual intercourse between the two respondents as alleged.
4. On inquiry by the Court, the learned counsel submitted that the petitioner has divorced respondent No.1 on 30-3-1990 and that the family suits for payment of recovery of dower amount in the sum of Rs.50,000 and return of articles of dowry and also maintenance for herself and the child are pending in the Family Court. These suits were instituted by respondent No.1 before the lodging of the complaint by the petitioner but after receipt of legal notice sent by the petitioner to respondent No.1 disowning paternity of the child. A suit for dissolution of marriage was also instituted against the petitioner by respondent No.1 and then she was divorced by petitioner on 30- 3-1990. .
5. A number of cases were cited at the Bar reported as (i) Taca Gul v. Bibi Aisha PLD 1951 Pesh. 17,
(ii) Bashir Ahmad and another v. The State 1984 P Cr. L J 352, (iii) Muhammad Sarwar and Mst.
Sahib Khatoon v. The State 1991 P Cr. L J Note 69 at p. 49 and (iv) Muhammad Siddique v. The-- State PLD 1990 SC 1079 (Shariat Appellate Bench).
(i) In the first cited case (PLD 1951 Pesh. 17), it was observed that under section 112 of the Evidence Act, 1872 (then in force), if a person wants to prove that he is not the father of a child, he must establish that he had no access to the wife. Once it is proved that he had access to his wife, the fact that his wife was a woman of bad character and that she was accessible to other people too is no ground to hold that the child born during the continuance of the marriage, is not that person's child. This case has no bearing to the facts before us, as admittedly the petitioner cohabited with his wife after the marriage and had access to her till he returned to Abu Dhabi.
(ii) In the second cited case (1984 P Cr. L J 352) it was observed that the accused giving birth to twin daughters after six months of marriage in the absence of direct evidence of commission of Zina by accused the mere fact of giving birth to two twin daughters after six months of marriage was not sufficient by itself to give rise to inference that the accused had sexual intercourse with each other.
(iii) In the third cited case (1991 P Cr. L J Note 69 at p.49) it was observed that there was no eye- witness of the commission of the offence of Zina though Mst. Sahib Khatoon was found to be pregnant of 32 weeks when she was medically examined but being a married woman merely this fact cannot be construed sufficient to implicate her for the offence of Zina.
(iv) The fourth cited case (PLD 1990 SC 1079) (Shariat Appellate Bench) has no relevance as it was a case under section 10(3) of Zina. Bil-Jabr.
6. Under Islamic Law, the legitimacy of parentage depends upon the matrimonial relationship of the husband and wife being in accord with the Islamic Law. The parentage of a child is considered as established even in doubtful cases. For instance, in case of doubt in the act (Shubha fil fi'l or in case of doubt in the marriage contract (Shubha fil'and) though the marital relationship shall be held to be Fasid the children born of the said wedlock shall be held to be legitimate. Tanzil-ur-- Rahman: Majmu'a Quwanin Islam, Karachi 1965, Vol. 1, pp. 147-51).
7. The establishment of parentage is based on the Prophet's saying: (The issue belongs to the bed and for the adulterer there is the stoning).
It is thus meant that a legal marriage contract must be in existence at the time I of conception of the child. Islamic law leans favourably towards holding the children to be of legitimate parentage so that they may be recognised as legitimate children and no confusion or immorality may spread in the society. 8 On this basis the irregular (Fasid) marriage contracts and co-habitation in doubt (Wati bil Shubha) are also considered as good grounds for the proof of parentage.
8. As regardes the shortest period of pregnancy we may cite below two Qur'anic verses:-- The above two verses read together go to show that the total period of pregnancy and child's weaning is of thirty months and the period of child's t weaning by woman is of two years. In other words, the suckling period for the child is of twenty-four months and rest of the six months are indicated as the shortest period of pregnancy.
9. We may also refer to the legislation regarding the minimum period of pregnancy that as in force in several Muslim countries.
10. Under Iraqi law, the child of every wife shall be attributed to her husband with the following two conditions:--
(1) That after the marriage contract between the couple a period of six months of pregnancy,-at the least, must have expired.
(2) That the spouses had access to each other.
11. In Tunisia, when the wife at the expiry of six months or thereafter of her marriage contract gives birth to a child its parentage shall be established from her husband whether her marriage contract is valid or irregular (section 71 of the Majalla al-Ahwal al-Shakhsiyya Tunisia).
12. Under the Syrian law also the period of pregnancy at the least is 180 days (section 128 of the Qanun-al-Ahwal al-Shakhsiyya, Syria).
13. For the above said discussion, the revision petition is dismissed.