Interpretation of Articles 117,118, 119 and 128 of Qanoon-e-Shahadat Ordinance addressed in this judgment..
Citation Name : 2010
PLD 422 LAHORE-HIGH-COURT-LAHORE
Side Appellant :
KHIZAR HAYAT
Side Opponent :
ADDITIONAL DISTRICT JUDGE, KABIRWALA
S.
5 & Sched.---Constitution of Pakistan (1973), Art.199---Qanun-e-Shahadat
(10 of 1984), Arts.117, 118, 119 & 128---Constitutional jurisdiction of
High Court---Scope---Suit for recovery of maintenance allowance for minor son
and dowry articles---Trial Court decreed the suit fixing maintenance at Rs.2000
per month and awarding Rs.30, 000 as alternative price of dowry articles---Defendant's
appeal was dismissed by the Appellate Court---Defendant contended that the
Appellate Court did not issue direction for conducting DNA Test to determine
the legitimacy of the minor and that the courts below allowed plaintiff to
enter and rely on documents which were not attached at the time of initiation
of suit---Validity---Defendant's admissions regarding his knowledge of the
minor's birth and entry of his name in defendant's Shajrah Nasab by Halqa
Patwari led to the conclusion that his denial of legitimacy of his son was a
ploy meant to avoid maintenance---Defendant admitted having divorced the
plaintiff but failed to disprove the birth of minor one year before
divorce---Birth during marriage was conclusive proof of legitimacy under Art.I28
of the Qanun-e-Shahadat, 1984---Objection to admissibility of documents
produced by plaintiff was not tenable as the plaintiff produced the copy of
birth certificate of the minor only after defendant refused to acknowledge the
minor as his son---Even otherwise, birth certificate was a public document to
which presumption of truth was attached, therefore, no exception could be taken
to the admissibility of the same---Direction could not be issued for conducting
the DNA Test as a matter of routine in cases where father refused to
acknowledge his child born during lawful
wedlock because under Art.128 of the Qanun-e-Shahadat, 1984, a child born during continuance of a valid marriage
or within two years of its dissolution, if mother remained unmarried during
that period, was conclusive proof that he was legitimate child of that man, unless the man denied the
same---Even otherwise, burden of proof under Arts.117, 118 and 119 of the
Qanun-e-Shahadat, 1984 was on the defendant---Birth of the minor one year before
divorce indicated that he was born during subsistence of marriage, presumption
could safely be drawn that he was legitimate child of the defendant---In view of the undesirable
practice of denying legitimacy of one's own child in order to avoid maintenance or exclude the
child form inheritance, issuance of
direction for DNA Test was not proper---Conditions were not suitable in
Pakistan for application of DNA Test owing to lack of skills and facilities
required for DNA Test---Any mistake or malpractice committed in the course of
DNA Test was tantamount to stigmatize the child
for the rest of his life---Possibility of error in the results of DNA
Test could not be ruled out, therefore, attending circumstance of the case had
to be taken into consideration---Point of time at which father denied paternity
was a relevant factor, so considerable delay in raising the plea of
illegitimacy was not permissible---Defendant denied paternity after more than
eleven years of the birth of minor son and failed to produce any cogent
evidence to rule out possibility of his cohabitation with the
plaintiff---Concurrent findings of courts below could not be assailed in
constitutional jurisdiction unless subordinate courts had exceeded
jurisdiction, acted without jurisdiction or such findings were not based on any
evidence---Findings of fact recorded by a court of competent jurisdiction could
not be challenged through constitutional petition merely on the ground that the
same evidence could be viewed differently---Courts below did not commit any
illegality, material irregularity, misreading or non-reading of
evidence---Constitutional petition was dismissed in circumstance.
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