1. Through this Constitutional petition, the petitioner has challenged the validity of an order dated 03.02.2015, passed by the learned Judge Family Court, whereby an application to conduct D.N.A test filed by the petitioner, was dismissed on the ground, that the petitioner has not denied the parentage of the minor while filing the written statement.
2. The respondent No.2, who is mother of respondent No.3 (minor), filed a suit for recovery of maintenance allowance of the minor contending therein, that respondent No.2 was married with the petitioner; during the subsistence of marriage, respondent No.3 (minor) was born who is two years old now and living with respondent No.2; the petitioner has divorced respondent No.2 but from the day first, has not paid a single penny as maintenance to the minor. The suit was contested by the petitioner/defendant and when the proceedings were at the stage of cross-examination upon respondent No.2, the petitioner filed an application to conduct the D.N.A test of the minor on the ground, that the petitioner is unable to become a father, therefore, to ascertain the parentage of respondent No.3, the application be allowed. The learned Judge Family Court, after hearing the arguments of the parties, finally dismissed the application mainly on the ground, that the minor was born during the subsistence of marriage, therefore, presumption of legitimacy is attached.
3. Heard. Record perused. The record of the instant case was perused with the assistance of learned counsel for the petitioner. The suit was filed by the petitioner on 05.06.2014, whereas the application to conduct the D.N.A test was filed on 26.01.2015, after about eight months of filing the suit by respondent No. 2.
4. The above facts, which are floating on the surface of the record, are sufficient to dismiss instant Constitutional petition wherein the petitioner is seeking the equitable and discretionary relief.
5. The respondent No.2 while filing the plaint specifically stated, that the minor was born during the subsistence of marriage in the house of her parents whereas while filing the written statement, the petitioner has admitted the birth of minor and as regard rest of the paragraph, the petitioner has simply stated, incorrect (سراسر غلط) . Needless to mention, that the reply made by the petitioner is evasive and under the law, evasive reply made by the defendant is amount to admission of the claim made in the plaint. Further, while replying paragraph No.6, the petitioner has categorically admitted, that he had been paying the maintenance to the respondents No.2 and 3.
6. As regard the filing of the application during the pendency of the suit, it is established on record, the said application was filed after about eight months of filing of the suit by the respondent No.2; and further, it is important to note here, that while filing the written statement, the petitioner did not object, in any manner whatsoever, the parentage of the minor. It is also pertinent to mention here, that the minor, as per the record, is about 02 years old and during these two years i.e. after the birth of the minor, the petitioner did not object the parentage of the minor in any manner whatsoever before any competent authority, therefore, there is no hesitation to hold, that the petitioner, simply in order to avoid the payment of maintenance allowance to the minor, has filed this application which shows the callousness and cruelty of the petitioner.
7. The learned counsel for the petitioner argued in a casual manner and submitted, that the D.N.A test is the only device to ascertain the parentage of the minor but when the learned counsel was confronted with the aforesaid facts, the learned counsel had no answer and prayed for the withdrawal of this Constitutional petition, which, in peculiar facts and circumstances of the case, was declined.
8. Even otherwise it is noted with great concern, that it has become normal practice in the family cases, the father simply in order to avoid the payment of maintenance allowance, files this type of the application in a very casual and leisure manners and this practice should be discouraged obviously keeping in view the facts and circumstances of the cases.
9. Admittedly, the minor born during the subsistence of marriage and this proposition has already been dealt with by the Hon’ble Supreme Court of Pakistan in a judgment cited as “Ghazala Tehsin Zohra versus Mehr Ghulam Dastagir” (PLD 2015 SC 327), wherein it has been observed that:
“We first of all, take up for comment the provisions of Article 128 ibid. The Article is couched in language which is protective of societal cohisn and the values of the community. This appears to be the rationale for stipulating affirmatively that a child who is born within two years after the dissolution of the marriage between his parents (the mother remaining unmarried) shall constitute conclusive proof of his legitimacy. Otherwise, neither the classical Islamic jurists nor the farmers of the Qanun-e-Shahadat Order could have been oblivious of the scientific fact that the normal period of gestation of the human foetus is around nine months. That they then extended the presumption of legitimacy to two years, in spite of this knowledge, directly points towards the legislative intent as well as the societal imperative of avoiding controversy in matters of paternity. It is in this context that at first glance, clause 1(a) of Article 128 appears to pose a difficulty. It may be noted that classical Islamic Law, which is the inspiration behind the Qanun-e-Shahadat Order (though not incorporated fully) and was referred to by learned counsel for the appellant also adheres to the same rationale and is driven by the same societal imperative. In this regard, it is also worth taking time to reflect on the belief in our tradition that on the Day of Judgment, the children of Adam will be called out by their mother’s name. It shows that the Divine Being has, in His infinite wisdom and mercy, taken care to ensure that even on a day when all personal secrets shall be laid bare the secrets about paternity shall not delved into or diverged.”
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