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This case concerns a husband, Waqar Ahmad, who challenged court decisions ordering him to pay dower (mahr) and maintenance to his wife, Nomina Akhtar, and to support their son. The Family Court and an Appellate Court had both ruled against him, so he approached the Peshawar High Court through a constitutional petition.
The couple's marriage was undisputed, as proven by the Nikah Nama. However, the husband tried to deny the child was his, claiming the baby was born prematurely, only six months after the marriage, and therefore illegitimate. His only evidence was an ultrasound report, which he failed to properly prove in court despite having the opportunity to do so.
The High Court rejected this argument. It explained that under Islamic law, a child is presumed legitimate if born anywhere between six months and two years after marriage. Since the husband offered no solid legal proof to rebut this presumption, the child had to be treated as legitimate.
The Court also invoked Article 35 of the Constitution, which obligates the State to protect marriage, family, mothers, and children. It emphasized that wrongly branding a child illegitimate without proper evidence causes severe, lifelong harm, and courts must guard against this injustice.
The High Court upheld the lower courts' decisions, confirming the child's legitimacy and the father's duty to maintain him, along with the wife's dower and maintenance claims.
یہ مقدمہ ایک شوہر، وقار احمد، سے متعلق ہے جس نے ان عدالتی فیصلوں کو چیلنج کیا تھا جن کے تحت اسے اپنی بیوی نعمینہ اختر کو مہر اور نان و نفقہ ادا کرنے اور ان کے بیٹے کی کفالت کرنے کا حکم دیا گیا تھا۔ فیملی کورٹ اور اپیلٹ کورٹ، دونوں نے اس کے خلاف فیصلہ دیا تھا، جس پر اس نے آئینی درخواست کے ذریعے پشاور ہائی کورٹ سے رجوع کیا۔
فریقین کا نکاح غیر متنازعہ تھا، جیسا کہ نکاح نامے سے ثابت ہوتا تھا۔ تاہم شوہر نے بچے کو اپنا تسلیم کرنے سے انکار کرنے کی کوشش کی، اس کا دعویٰ تھا کہ بچہ وقت سے پہلے، نکاح کے صرف چھ ماہ بعد پیدا ہوا تھا، اور اس لیے وہ ناجائز ہے۔ اس کے پاس اس دعوے کے ثبوت میں صرف ایک الٹراساؤنڈ رپورٹ تھی، جسے وہ عدالت میں موقع ملنے کے باوجود مناسب طریقے سے ثابت کرنے میں ناکام رہا۔
ہائی کورٹ نے اس دلیل کو مسترد کر دیا۔ عدالت نے واضح کیا کہ اسلامی قانون کے تحت، اگر بچ
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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.