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.
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