MAULVI ANWARUL HAQ, J.--- On 26.4.1982 the petitioner filed a suit. In the plaint it was stated that he was marred to respondent No. 1 and he divorced her on 11.11.1969. It was stated that respondent No. 1 is the mother of respondent No. 2. His case was that at the time of divorce the' said lady was suffering from some vaginal bleedings which required D&C procedure. He took her to a doctor who applied the said procedure and restrained the couple from sexual intercourse for two months. This procedure was done on 2.11.1969; that respondent No. 1 was not a woman of good moral character and he divorced her on 11.1.1969; that respondent No. 1 has got a forged birth entry- and is declaring that respondent No. 2 is his son when respondent No. 2 is not. In their written statement the respondents denied the said allegation. They said that the child was borne on 11.7.1970 i.e. 8 months after the pronouncement of divorce and is the son of the petitioner. They complained that the suit has been filed as a counter blast to the suit filed by the minor for recovery of his maintenance. The reason for divorce was stated to be refusal of respondent No. 1 to permit him to contract a second marriage; that the minor had been taking education in a school in the village of the petitioner under his supervision but when the child was shifted to Sargodha and maintenance suit was filed the petitioner started disowning the child. Issues were framed. Evidence of the parties was recorded. The learned Trial Court dismissed the suit vide judgment and decree dated 28.9.1987 while a learned Additional District Judge, Sargodha dismissed the first appeal of the petitioner on 4.4.1989.
2. Learned counsel for the petitioner argues that proper issues had not been framed by the learned Trial Court so as to enable his client to prove that the birth entry is forged. Further claims that evidence in the form of Ex.P1 to P.3 had wrongly been ignored by the learned Courts below in the matter of determining the date of birth of the child. Learned counsel for the respondents, on the other hand, argues, rather complains that against dismissal of suit and dismissal of appeal this Civil Revision was filed and this Court proceeded to suspend the operation of the impugned judgments and decrees and the result is that respondent No. 2 for all these long years had been subjected to the stigma of illegitimacy. He supports the impugned judgments and decrees by urging that they are in accord with the evidence on the file.
3. I have gone through the copies of the record attached with this Civil Revision. I have already referred to the stated case of the petitioner and the statements of his witnesses and himself are in accord with the said case stated in the plaint. I would like to refer here to the statement of the respondent lady Anwar Bibi who appeared as D.W.3. She stated that she was married with him as his wife for 21/2 years and that during the marriage the relations were cordial. She came to meet his father in the year 1969 in Chak No. 116-North when the petitioner divorced her on 11.11.1969 and she received the divorce; that a child Aftab Ahmad was borne 7/8 months after the divorce; that the petitioner was informed and his birth was got entered; that the minor is the child of the petitioner who had been studying in village Bola for three years and the petitioner had been paying his expenses; that she has, not contracted a second marriage; that when she filed a suit for maintenance of her child the petitioner refused to acknowledge him. Now this witness was cross- examined at some length. She has denied that D,r. Mrs. Nisar Malik had operated upon her. She has stated that there was no dispute between the parties and she does not know why she has been divorced. What is to be noted is that the lady has stated that the child was borne after 7/8 months of the divorce and it was not even suggested to her that the child was borne at any time after 7/8 months of the divorce or that he was borne in the year 1972 as alleged by the petitioner. What is more important is that it was not even suggested to her that the spouses did not intercourses sexually immediately before the divorce. By now it is well-settled that a material part of the statement if not questioned in cross-examination shall be deemed to be accepted and admitted by the opposite party. Law of the land is clear. Article 128 of the Qanune-Shahadat Order, 1984 lays down that where a person is borne during the continuance of a valid marriage between his mother and any man--- or even two years after its dissolution the mother remaining unmarried shall be, conclusive proof that he is the legitimate child of that man unless the husband refused or refused to own the child. In the present case it stands established on record that the child was born on 11.7.1970 (birth entry EDx.D.1 read with the statement of the lady (D.W.3). Of course the: husband refused to own the child and this refusal was made for the first time in the suit filed- on 20.4.1982.
There is nothing on the record to show that at any time before filing of the suit the husband refused to own the child. Now the very documents relied upon by the petitioner himself i.e. Ex.P.1 and P.2 record that Aftab, respondent No. 2 is son of Laqa Rasool, the petitioner. Since the petitioner has refused to acknowledge the child, the requirement is the evidence of two male witnesses. To my mind in view of the non-cross-examination of respondent D.W.3 even the said requirement would not be necessary yet she did produce two male witnesses D.W.1 and D.W.2 who have stated that the child was born within about 7 months of the divorce and it is an admitted fact that whereas the petitioner has remarried, respondent No. 1 has not. Now coming to the evidence produced by the petitioner, Ghulam Rasool is his father. He has simply stated that Aftab is not a son of the petitioner but has not said anything as to when Aftab was born. PW2 is .Raza Muhammad, a brother-in-law of the petitioner. He has also not stated as to when Aftab was born. P.W.3 is the petitioner. He has also not stated as to when Aftab was born. He has simply stated that in the school records the date of birth of Aftab is recorded as 12.9.1972.
4. Although it has been pleaded that D&C procedure was done on the respondent lady yet the best evidence in the matter i.e. The lady doctor who allegedly operated upon the respondent (who has of course denied the allegation) has not been produced.
5. In the light of the above discussion I do not find any case being made out for interference with the judgments and decrees passed by the learned Courts below. I, however, do find that the record spells out the ma/a fide inherent in the suit and the attempt of the petitioner to defame his ex-wife and in the process to stigmatize his own child as illegitimate without any reasonable cause. There is nothing in the evidence on record to question the character of the respondent lady who apparently is living a secluded life for the child of the parties. I, therefore, dismiss this Civil Revision with costs of Rs.20,000/- to be paid by the petitioner to respondent No. 1. The costs to be paid within one month failing which respondent No. 1 can recover the same by execution.