Suit for Recovery of Maintenance and DNA Test

Suit for Recovery of Maintenance and DNA Test Case Laws Civil Law Constitutional Law DNA Test Family Knowledge - Civil Law Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Maintenance Solutions - Civil Law Solutions - Constitutional Law Mr. Justice Ali Akbar Qureshi in his judgment has decided the issue regarding suit for recovery of maintenance and DNA test in Writ Petition No. 8482 of 2016.

1. This Constitutional petition assails the judgment and decree dated 16.02.2016 and 12.12.2015, passed by the learned courts below, in a suit for recovery of maintenance allowance filed by the respondents.

2. As per record, the respondent No.2, who has attained the age of majority, filed a suit for recovery of maintenance through her real mother, respondent No.1, against the petitioner on the ground, that respondent No.1 married with the petitioner on 19.01.1990; the marriage was consummated; during subsistence of marriage, relations between the spouses became strained and finally the petitioner divorced the respondent No.1 on 16.09.1991; the respondent No.2 was born after 02 months and 30 days of the divorce of the parties. The matter remained pending for years and decided on 23.09.1997, whereby the suit of the respondents for recovery of maintenance was dismissed. In appeal, the judgment and decree dated 23.09.1997 was set aside by the learned appellate court on 17.02.2000 and the case was remanded to the learned Judge Family Court to decide the case afresh after getting the report of D.N.A test from the Forensic Science Laboratory. The petitioner instead of complying with the order passed by the learned appellate court for D.N.A test, challenged the same before this Court. The case filed by the petitioner was dismissed, against which the petitioner approached to the Hon’ble Supreme Court of Pakistan but remained failed and by this way, the judgment and decree dated 17.02.2000, whereby the case was remanded to the learned trial court and the petitioner was directed for D.N.A test, remained intact. On the other hand, the respondent No.1 went to the Punjab Forensic Science Laboratory, provided her blood sample but the concerned authority of the Laboratory made a report, that for comprehensive report, the blood sample of the petitioner is required. For this purpose, the matter remained pending till 12.12.2015 and the petitioner always lingered on the matter on one pretext or the other, therefore, the learned Judge Family Court having no other option decreed the suit in the following manners:

“On the other hand plaintiffs had went to Punjab Forensic Science Laboratory, Lahore and the concerned Agency has obtained their samples in accordance with their rules, however, it require the blood samples of the defendant to prepare the comprehensive report, but the defendant did not appear before the Punjab Forensic Science Laboratory, Lahore on an occasion nor any valid reason was shown in this regard, hence opted not to rebut the original presumption attached with the minor/plaintiff No.22, it is inferred from the words and conduct of the defendant, that he has withheld the best evidence available to rebut the presumption of legitimacy of minor, hence advance information is drawn against the stance of defendant and it is, therefore, held that the plaintiff No.2 namely Shahid Ashiq was born within the wedlock of the spouses i.e. plaintiff No.1 and the defendant and it is, therefore, held that plaintiff No.2 was the real son of the defendant and therefore, defendant being the real father was under obligation to maintain his real son since his birth till attaining the age of his majority, but the defendant did not pay even a single penny to the plaintiff No.2 till date. Now the plaintiff No.2 has already attained the age of majority, but still is entitled to recover all the past maintenance allowance from his father/defendant since his birth till his attaining the age of majority i.e. for the period of 18-years equally 216 months and total maintenance allowance recoverable is deducted as Rs.4,32,000/-. In view of above circumstances, rate of maintenance allowance is fixed Rs.2,000/- per month which shall be paid by the defendant to the plaintiff No.2 at once. Suit of the plaintiffs is hereby decreed ex parte in favour of the plaintiff No.2 and against the defendant with no order as to cost. Decree sheet be drawn and file be consigned to the record room after its due completion.”

3. The petitioner, against the aforesaid judgment and decree, filed an appeal, which was dismissed being not competent by the learned appellate court on the ground, that the maintenance decree to the extent of Rs.2000/- in favour of the child, is not appealable.

4. Learned counsel for the petitioner when confronted the afore-referred facts of the case, the learned counsel had no answer but repeated his argument, that the petitioner be given one opportunity.

5. Heard. Record perused.

6. In this case, the legitimacy of the respondent No.2 is under challenge. Admittedly the respondent No.1 married to the petitioner, remained with him to perform her marital obligations and the respondent No.2 (minor) born after the period of 2 months and 30, days of the divorce pronounced by the petitioner.

7. According to the principle of Islamic Law, that child will follow the bed (principle of farash), if the child born during the subsistence of marriage, the legitimacy of the child cannot be questioned. In this case, the marriage took placed on 19.01.1990, respondent No.1 was divorced and respondent No.2 was born after 02 months and 30 days thereafter, therefore, the learned trial court has rightly held, that the presumption of legitimacy is attached to the minor. Reliance is placed on the esteemed judgment passed by the Hon’ble Supreme Court of Pakistan 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 cohesion 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 fetus 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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