📝 AI Summary — Plain-Language Overview
This case involved a family dispute in which a wife sued her husband for recovery of dower money, maintenance during the Iddat period, and maintenance for their son. The Family Court and the Appellate Court both ruled in her favor. The husband then challenged these decisions before the High Court, disputing his son's legitimacy. He claimed the child was illegitimate because he was born only six months after the marriage, suggesting a premature birth that made him doubt paternity.
The husband's marriage to the woman was undisputed, as confirmed by the Nikah Nama (marriage certificate). However, apart from an ultrasound report that was never properly proven in court, he provided no credible evidence to support his claim that the child was illegitimate, despite having full opportunity to do so.
The High Court rejected his petition. It explained that under Islamic law, a child is presumed legitimate if born anywhere between 180 days (six months) and two years after marriage. Since the husband failed to prove otherwise, the child could not be branded illegitimate merely for being born early. The Court also invoked Article 35 of the Constitution, which obligates the State to protect marriage, family, mothers, and children. It emphasized that wrongly declaring a legitimate child illegitimate causes severe, lifelong harm and constitutes a grave injustice.
The Court upheld the lower courts' rulings, confirming the child's legitimacy and the father's duty to maintain him. This case highlights the judiciary's role in protecting children's rights and dignity under constitutional and Islamic law.
یہ مقدمہ ایک خانگی تنازعہ سے متعلق تھا جس میں ایک بیوی نے اپنے شوہر کے خلاف حق مہر کی وصولی، عدت کے دوران نان و نفقہ، اور اپنے بیٹے کے نفقہ کے لیے دعویٰ دائر کیا تھا۔ فیملی کورٹ اور اپیلٹ کورٹ دونوں نے اس کے حق میں فیصلہ دیا۔ اس کے بعد شوہر نے ان فیصلوں کو ہائی کورٹ میں چیلنج کیا اور اپنے بیٹے کی نسبت کو متنازعہ قرار دیا۔ اس کا کہنا تھا کہ بچہ ناجائز ہے کیونکہ وہ نکاح کے صرف چھ ماہ بعد پیدا ہوا، جس سے وقت سے پہلے پیدائش ظاہر ہوتی ہے اور اسے باپ ہونے پر شک ہے۔
شوہر کا اس عورت سے نکاح غیر متنازعہ تھا، جس کی تصدیق نکاح نامے سے ہوتی تھی۔ تاہم، ایک الٹراساؤنڈ رپورٹ کے سوا، جو عدالت میں کبھی باقاعدہ طور پر ثابت نہیں کی گئی، اس نے بچے کے ناجائز ہونے کے دعوے کی حمایت میں کوئی معتبر ثبوت پیش نہیں کیا، باوجود اس کے کہ اسے ایسا کرنے کا بھرپور موقع دیا گیا تھا۔
ہائی
Generated from the full judgment text below — not a substitute for reading the actual opinion.
Citation Name : 2010 PLD 10 PESHAWAR-HIGH-COURT-NWFP Side Appellant : WAQAR AHMAD Side Opponent : NOMINA AKHTAR S. 5, Sched. & S. 14---Constitution of Pakistan (1973), Arts.199 & 35---Constitutional petition---Suit for recovery of dower amount and maintenance allowance---Legitimacy of child ---Determination of---Suit for recovery of dower amount as well as maintenance allowance for "Iddat" period of plaintiff and maintenance of male child having concurrently been decreed by the Family Court and Appellate Court, defendant had filed constitutional petition against said concurrent judgments and decrees of the courts below---Parties were married as was evident from the "Nikah Nama" and that fact was admitted by the parties---Defendant, however, disowned the child born during existence of marriage and declared said child as illegitimate ; alleging that he was born premature i.e. six months after marriage---Excepting the ultrasound test report, which too was not proved at the trial, defendant had led no evidence of any legal worth to be relied upon, despite having ample opportunity---Under Islamic Law, the legitimacy of a child would be presumed if he was born within the period of 180 days i.e. six months and the maximum period so fixed was two years---No child , in circumstances, could be stigmatized as illegitimate , simply for the reason that he was delivered premature i.e. in six months or with unusual delay of two years---Under Art.35 of the Constitution it was ordained that the State would protect the marriage, the family, the mother and the child ---Intention and object of the framers of the Constitution, while inserting Art.35 was to protect the child from all types of hostile forces, so that it was ensured that he was brought up in a conducive and favourable social environments; and more particularly to become a viable citizen with honour and grace---Judiciary being the essential constitutional organ of the State, it was required to place meaningful interpretation on the said provision of the Constitution, so that the We, the liberty and dignity of the child was preserved and was fully guaranteed---Any child who was stigmatized, declaring him as illegitimate without legal proof, would be the worst degree of injustice to him as in that case the rest of life he had to spend almost in hell---If procreation of illegitimate child ren was a nasty social evil, declaring a legitimate child as illegitimate was the worst type of social evil which mischief must be suppressed by the court of law---Held, child was legitimate one and courts below had rightly held that defendant was bound to maintain the child under the law---Impugned judgments and decrees were maintained,, in circumstances.