SAVED ZAHID HUSSAIN, J. -- This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 challenging the judgment dated 9.1.1991 of the learned Addl. District Judge, Vehari, whereby he dismissed the appeal, filed by the petitioner and upheld the judgment of the learned Judge Family Court, Vehari dated 5.9.1990.
2. The petitioner had filed a suit for jactitation of marriage that she was legally wedded wife of Muhammad Ramzan vide Nikahnama dated 16.1.1986 Ex.P-1 and that the claim of Allah Ditta, respondent No. 3, pronouncing her as his wife was false and based on fraud and forgery. The suit was contested by respondent No. 3 claiming the petitioner to be his legally wedded wife on the basis' of Nikahnama dated 19.2.1986 Ex.D-1. Respondent No. 3, thereafter, filed a suit for restitution of conjugal rights. Both the suits were heard together by the learned Judge Family Court who after receiving the evidence, led by both the parties, dismissed the suit of the petitioner regarding jactitation of marriage and decreed that of respondent No. 3 for restitution of conjugal rights. The petitioner filed an appeal before the learned District Judge against the judgment of the learned Judge Family Court which appeal was dismissed by a learned Addl. District Judge, Vehari vide judgment dated 9.1.1991. Hence this writ petition by her.
3. Learned counsel for the petitioner in support of the petition contends that the marriage of the petitioner with Muhammad Ramzan took place on 16.1.1986 through Ex.P-1 and the performance of Nikah was proved by producing Muhammad Ibrahim PW-2, Nikah-Khawan and PWE3 Muhammad Ramzan. It is contended that the statement of the petitioner as PW-1 was entitled to be given regard when she claimed Muhammad Ramzan as her husband. It is further contended that two Courts below have mis-directed themselves in dismissing the suit of the petitioner by ignoring the evidence produced by her on record and the conclusion so drawn by the two Courts are based on mis-reading and non-reading of material piece of evidence. It is further contended that Courts below have ignored an important aspect of the matter that the petitioner had already given birth a child from Muhammad Ramzan and was pregnant at the time of making of her statement. He states that now she is mother of three children from her husband Muhammad Ramzan.
4. As against this, learned counsel for respondent No. 3 contends that the findings of the two Courts below are based on proper appreciation of the evidence and that the concurrent findings so recorded by them do no call for interference by this Court. He, however, did not deny the factum of children having been born out of the wedlock of the petitioner with Muhammad Ramzan.
5. The Courts below have totally excluded from consideration and given no credence to the statement made by the petitioner herself when she categorically stated that she was wife of Muhammad Ramzan, from whom she had already a child and was pregnant when she made statement before the Court as PW-1. Muhammad Ramzan/PW-3, husband of the petitioner, also made statement to this effect. Both claimed themselves to be husband and wife in pursuance of Nikahnama dated 16.1.1986. When both the spouses were claiming as husband and wife and had children out of the marriage, their testimony should have received earnest appreciation by the Courts below. To the contrary, the Courts have laid much stress on the assertion of respondent No. 3 that the petitioner was forcibly abducted by Muhammad Ramzan. This assertion of respondent No. 3 was categorically denied and refuted by the petitioner who claimed that she had never entered into any marriage with respondent No. 3 nor had she been abducted by Muhammad Ramzan.
6. Another factor which has been taken into account by the learned Courts below in rendering findings against the petitioner is that during the Nikah, claimed by (respondent No. 3), the paternal-uncle of the petitioner, maternal-grand-father of the petitioner and her mother were present at the time of marriage with respondent No. 3 but lost sight of the fact that none of them was produced or appeared before the learned Judge Family Court in support of the said Nikahnama. The approach of the two Courts below in this matter is more of technical in nature rather than based on reality.
7. This petition concerns not only the petitioner herself, but also has serious implications as she has given birth to three children from Muhammad Ramzan. The question of legitimacy or otherwise of the said children cannot be lost sight off. It was held in Shah Nawaz and another v. Nawab Khan (PLD 1976 SC 767) that Courts have been reluctant to stigmatize a child as illegitimate and as far as possible every presumption is made in favour of legitimacy that, where the direct proof of marriage is doubtful but the spouses have been living together as husband and wife, the presumption of marriage and legitimacy of the children shall be attracted. This is based on a well established principle that Islamic Law leans in favour of legitimization rather than stigmatization. For reference see Manzoor Hussain v. Zahoor Ahmed (1992 SCM R 1191).
8. Thus, in matters of this nature the approach of the Court should be pragmatic and can be based on prepondrance of probabilities for upholding the relationship of the parties in order to prove the legitimacy of the children. The Court is always entitled to take notice of the events taken place even pending litigation and to mould relief accordingly. This principle was stated in Mst. Amino Begum and others v. Mehr Ghulam Dastagir (PLD 1978 SC 220). .
9. In view of the above, I am inclined to take the view that the two Courts below have mis-directed themselves in dismissing the suit of the petitioner and the judgments so rendered by them are result of non-reading of evidence.
10. As a result of the above, this petition is accepted. The judgments impugned are declared as is illegal and of no legal effect.
No order as to costs.