This appeal is filed against the judgment passed by Additional District Criminal Court, Muzaffarabad, dated 30-4-2002, whereby the accused-respondents are acquitted from the offence under section 10, ZA by reversing the judgment passed by Tehsil Criminal Court, Muzaffarabad, dated 22-5-2000, whereby the respondents were sentenced to 5 years' imprisonment with 10 strips each and Rs.3,000 each as fine.
2. The facts giving rise to the filing of present appeal are that marriage between Gulshan Bibi and Muhammad Iqbal took place on 29-6-1997. After the marriage Gulshan Bibi gave birth to a baby on 18-12-1997. Muhammad Iqbal filed a report at Police Station Kohori on 10-1-1998 alleging the above fact and contending that Gulshan Bibi gave birth to a baby which was an outcome of illicit relations between Gulshan Bibi and Master Muhammad Maqbool before marriage. The case under the above-referred section was registered at the police-station culminating into challan before the trial Court and then appeal as stated above.
3. The learned counsel appearing for the complainant contended that under the celebrated rule, birth of baby takes place after 9 months of marriage. According to him, as the marriage between the parties took place on 29-6-1997, Mst. Gulshan Bibi could not give birth to a baby within six months i.e. On 18-12-1997 and this act itself implies that she was pregnant before marriage.
According to him, Master Maqbool was the person who had illicit relations with Mst. Gulshan Bibi and due to these illicit relations, Mst. Gulshan Bibi gave birth to the baby. He further contended that order passed by the trial Court was perfectly in accordance with law while the order passed by Additional District Criminal Court is contrary to law as it is impossible that birth of a baby can take place before nine months after marriage. The Advocate-General supported the contention of the learned Advocate.
4. The learned counsel appearing on behalf of accused-respondents contended that as far as the dates of marriage between the parties and birth of baby are concerned, there is- no dispute. He, however, contended that baby is legitimate son of Muhammad Iqbal who was born after the period within which ordinarily birth can take place. He further contended that period between marriage and birth has to be counted-in lunar days which, according to him, come to around 173 days.
5. After hearing the learned counsel for the parties, I have gone through the record of the case as well as the law on the point.
6. Section 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 his mother and any man and not earlier than the expiration of six lunar months front 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 lunar month is concerned. Some times a lunar month is of 29 days only and some times it is of 30 days. However, it is unaimously accepted by the Jurists that lunar year 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 173 days which is approximately six months. Under the circumstances when birth of the baby took place not before the sixth 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 preferred as the legitimacy is rule of nature and whatever is natural that 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 regarding parentage, inheritance, legal rights etc. To avoid all the complications, the best course in the cases like one in hand is to take a view which favours the legitimacy and this is nearer to the spirit of law as well.
8. In view of above, finding no fault with the order passed by Additional District Criminal Court, Muzaffarabad, dated 30-4-2002, the appeal is hereby dismissed.
N.H.Q./47/Sh.C.(AJ&K)