The brief facts giving rise to this Constitutional petition are that the petitioner Muhammad Riaz was married with respondent No.1 Asia Parveen on 29-3-1984. Soon after the marriage, the petitioner left for Saudi Arabia in connection with his employment. A daughter was born who subsequently died.
Differences developed between the parties and respondent No.1 filed a suit for dissolution of marriage before the learned Judge Family Court, Lahore, which was decreed in her favour.
However, before the certificate of ' Talaq' was issued, the parties entered into compromise in April, 1986 through the intercession of elders. Thereafter, the petitioner went back to Saudi Arabia, where he was followed by respondent No. 1 on 6-11-1986.
2. Subsequently differences again developed, and the petitioner sent notice of divorce to respondent No.1 on 4-1-1987, under section 7(3) of the Muslim Family Laws Ordinance, 1961. Since respondent No. l was pregnant at the time, the proceedings were held in abeyance till the delivery of the child to respondent No.1. In the meanwhile, the parties entered into an agreement whereby respondent No. l acknowledged that she had received back her dowry and stated that she had no claim against the petitioner in this regard. She also stated that she would not claim any maintenance for the child or other expenses regarding the delivery of the child and that the divorce may be finalized after the delivery of the child. Accordingly, the Chairman Union Committee, Ward 68, Gulberg, Lahore, issued certificate on 20-10-1987 to the effect that the divorce had attained finality on 19-10-1987.
3. On 26-1-1989 respondent No.1, Mst. Asia Parveen and respondent No.2, namely Faisal Shahzad minor son of respondent No.1, filed a suit for recovery of maintenance against the petitioner before the learned Judge Family Court, respondent No.3, who vide judgment dated 18-11-1991, rejected the claim of respondent. No. 1 for maintenance while accepting the claim of respondent No.2 and the suit was decreed in his .Favour. The petitioner was directed to pay Rs. 500 per month as maintenance to respondent No.2 from the date of institution of suit till his entitlement under the law. The appeal of the petitioner was dismissed by respondent No.4 Learned Additional District Judge Lahore, vide judgment dated 10-10-1992. The petitioner has assailed the judgments of respondents Nos.3 and 4 through this Constitutional petition.
4. Learned counsel for the petitioner has argued that the impugned orders of respondents Nos.3 and 4 are illegal and based on misreading of evidence, since the petitioner in his written statement filed before respondent No.3 had specifically denied paternity of respondent No.2. He had categorically taken the stand that when respondent No. l came to Saudi Arabia to join the petitioner, she was already pregnant; despite these averments in the written statement, respondent No.3 had not framed any issue regarding the paternity of respondent No.2 and thus, the proceedings had not been properly conducted by respondent No.3. Learned counsel further argued that in view of the provisions of Article 128 of the Qanun-e-Shahadat, 1984, there was no presumption regarding legitimacy of respondent No.2 after the petitioner had refused to own the child. The learned counsel has urged that since both the impugned judgments had been passed in disregard of the above settled principles of law regarding paternity, both the judgments be set aside and the case be remanded to respondent No.3, learned Judge Family Court, Lahore for re- framing the issues and for summoning the doctor from Saudi Arabia in order to verify the petitioner's assertion that respondent No.2 was not his son.
5. Learned counsel for the respondent has opposed these arguments on the ground that from the pleadings of patties the following issues were framed by respondent No. 3:--- ISSUES:
(1) Whether the plaintiffs are entitled for maintenance allowance, if so, at what rate and with what effect? OPD.
(2) Relief.
That issue No.1 was broad enough to include the plea of the petitioner regarding the legitimacy of the child. However, if the petitioner had wanted that separate issue be framed in this regard, he could have applied to respondent No.3 for framing of additional issue but he chose not to do so.
Furthermore, both the parties had led evidence in support of their respective pleadings and the petitioner had not succeeded in proving that respondent No.2 was not his son and since there was concurrent finding of fact by both the Courts below in favour of respondent No.2, the same could not be interfered with in Constitutional jurisdiction.
6. I have heard the learned counsel for the parties and have also gone through the entire record.
Para. 4 of the written statement filed by the petitioner before respondent No.3 reads as under: "Denied. In fact the defendant went back to Saudi Arabia on 15-5-1986. The plaintiff followed him to Saudi Arabia on 6-11-1986. On his arrival to Saudi Arabia, the defendant suspected as the plaintiff No.1 is already pregnant so the defendant got her medically checked up and surprisingly found her having pregnancy of 4 months. Consequently both of them came to Pakistan, the defendant divorced the plaintiff on 4-1-1987. Talaqnama was duly served upon the plaintiff No. 1. Notice under section 7(3), W.P. Family Laws Ordinance, 1961 was also sent to Chairman concerned. The Chairman called upon the parties and made the proceeding pending till the delivery of child after recording the statement and the plaintiff No. 1 agreed not to claim future/past maintenance for her and for her child in presence of the witnesses."
7. The learned Judge Family Court, after considering the evidence of the parties, had come to the conclusion that respondent No.1, Mst. Asia Parveen, was not entitled to any maintenance on account of the fact that she had been divorced by the defendant (present petitioner) on 20-10- 1987. However, it was concluded that as far as the maintenance of respondent No.2 was concerned the agreement executed between the plaintiff and defendant was not effective against the legal rights of the minor and thereafter respondent No.3 decreed the suit in favour of respondent No.2 directing the petitioner to pay him Rs.500 per month as maintenance from the date of institution of the suit till his entitlement under the law. There is no discussion in the judgment regarding paternity of respondent No.2 nor had this been framed as a separate issue before respondent No.3.
8. In appeal filed by the petitioner this ground had not been taken while assailing the judgment of respondent No.3 nor had it been raised by learned counsel during arguments before respondent No.4. The learned Additional District Judge had dismissed the appeal of the petitioner. -
9. Emphasis had been placed in arguments before respondent No.3 and respondent No.4 on the fact that respondent No. l had entered into an agreement with the petitioner under which she had undertaken not to claim any maintenance allowance for the prospective child. This agreement was also filed before the Chairman during the conciliation proceedings. Both the Courts have observed that respondent No.2 is not estopped by the agreement entered into by respondent No. l from claiming maintenance. Allowance of Rs.500 per month has been awarded in view of the means of the present petitioner who is employed in Saudi Arabai as a tailor.
10. With this writ petition the petitioner has filed the medical report of respondent No.1 issued by the Maternity and Children Hospital, Riyadh, Saudi Arabia, according to which respondent No.1 was examined on 14-4-1987 and was found carrying pregnancy of about 14 weeks.
11. Any evidence which had not been produced before the learned trial Court or before the learned Appellate Court cannot be allowed to be in Constitutional petition. However, even if this report were to be taken into consideration, it does not support the contention of the petitioner that respondent No.2 is not his son, since according to his own pleadings respondent No.1 had joined him in Saudi Arabia on 6-11-1986 and in these circumstances respondent No. l could be carrying a pregnancy of about 14 weeks on 14-4-1987.
12. It is pertinent to note that the petitioner had never approached respondent No.3 for framing of an issue regarding paternity of respondent No.2 nor had he led any evidence on this point before respondent No.3. In fact he neither verified the written statement himself nor appeared in the witness-box in support of half-hearted contention of his attorney Muhammad Tufail to the effect that respondent No. l was already pregnant when she came to Saudi Arabia.
13. Article 128 of Qanun-e-Shahadat, 1984 which has been relied on by learned counsel for the petitioner, provides as under: "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 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... "
This Article corresponds to section 112 of the Evidence Act, 1872 which reads as under: "Birth during marriage conclusive Proof of legitimacy. ---The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."
14. It has been held in case cited as PLD 1975 SC 624, Mst. Hamida Begum v. Mst. Murad Begum and others that: "Under the Muhammadan Law, as in all civilized systems of law, the child follows the bed (Firash), that is, the paternity of a child born in lawful wedlock is presumed to be in the husband of the mother without any acknowledgement or affirmation of parentage on his part and such child follows the status of the father. According to the Sunni Schools the presumption of legitimacy is so strong that in cases where a child is born after six months from the date of marriage and within two years after dissolution of the marital contract either by the death of the husband or divorce, a simple denial of paternity on the part of the husband would not take away the status of legitimacy from the child .....
If the husband wishes to repudiate a child so born, he can only do so by the procedure of la'an, this is to say, if he swears before the Qazi that the child is illegitimate and the fruit of adultery, in which case the Court will pass a decree not only dissolving the marriage but declaring the child to be illegitimate."
PLD 1976 SC 767 (Shahnawaz and another v. Nawab Khan). It has been held that: "The paternity of a child born in lawful wedlock is presumed to be the husband of its mother if certain conditions are satisfied. Therefore, ordinarily, proof of marriage between the parents of a child is very cogent evidence to establish his paternity. It may be that conditions attached to legitimacy are more strict under Muslim Law than other systems but the Muslim Jurist consults as also the Courts have generally been very reluctant to stigmatize the child as illegitimate and therefore as far as possible every presumption is made in favour of its legitimacy. Courts therefore, have been reluctant to declare a child bastard and generally refused to admit illegitimacy when legitimacy can be inferred from the surrounding circumstances."
15. It is pertinent to note that in the present case the petitioner neither signed the written statement himself nor gave any sworn affidavit before the learned Trial Court or the learned Appellate Court denying the paternity of the child, nor is the affidavit to the present petition signed by him. The pleadings before all the Courts have been signed and verified by his attorney Muhammad Tufail.
PLD 1972 SC 25, Mst. Khairunnisa and 6 others v. Malik Muhammad Ishaq and 2 others it has been held that: "Written statements cannot be the exhibits in a case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified and therefore, they cannot be treated as evidence in the case."
1993 SCMR 145, (Shah Mir v. Saif Ilahi), it has been held that where the plaintiff/defendant does not appear himself as z witness to depose on oath in support of any allegations raised by him the same would stand not proved.
16. In view of the law above cited as well as the factual position as disclosed from the medical report of respondent No.1 from the Maternity and Children Hospital, Riyadh, as well as the report of the Chairman, Union Committee, Ward No.68, Gulberg, Lahore, filed in the Court of District Collector, it is quite clear that there is no substance in the contention of the petitioner that respondent No.2 is not his son. He has resorted to false allegations of a very serious nature merely in order to avoid liability of paying maintenance to his own son. The reliance of the petitioner on an agreement entered into between respondent No.1 and the petitioner to the effect that respondent No. l would not claim any maintenance from him for the prospective child cannot bind respondent No.2, since the right of being maintained by his father is his independent legal right which cannot be waived by any agreement purportedly entered into by respondent No. l on his behalf even before his birth.
The contention that the amount of maintenance is excessive is also without force. Considering the present high cost of living, Rs.500 per month is a pittance and the petitioner being employed in Saudi Arabia is well able to pay this amount.
17. The petitioner has raised false imputations of unchastity against respondent No.1 and has caused immeasurable humiliation and misery to respondent No.2 by disowning him as his son. He had spared no effort in stigmatizing respondent No.2. This petition is false, scurrilous, vexatious and devoid of merit. It is accordingly dismissed with special punitive and exemplary costs of Rs.10,000 which are to be recovered from the petitioner and paid to respondent No.2 on recovery.