ISLAMABAD - The Supreme Court clarified that the rules of Muslim Personal Law do not allow husbands to casually deny the paternity of child bore to them by their wives and the children born during the subsistence of marriage are presumed to be legitimate.
The eight-page judgment passed by a two-member bench comprising Justice Jawwad S. Khawaja and Justice Sarmad Jalal Osmany stated, except under extremely limited circumstances and within a very limited period after birth, this presumption cannot be rebutted by any evidence, including DNA test.
The appellant, Ghazala Tehsin Zohra, married to Mehr Ghulam Dastagir Khan, the respondent, in August 1997. On 21st March 2000 a daughter Hania Fatima was born from this wedlock and on 9.2.2001 a son Hasan Mujtaba was also born. Later, Mehr Ghulam married two another women. The appellant filed a suit for maintenance for herself and for their two children. When notice of the suit was served on the respondent, he made out a written talaq nama (divorce) on 26.06.2001. On 6.7.2001, the respondent filed a declaratory suit denying his paternity of the two children.
Seven years later, just before the paternity trial was about to conclude, he sought permission from the court to introduce DNA evidence. When the court turned down this request, he took the matter to High Court which granted his request. The woman then appealed to the Supreme Court, which after eight years granted her appeal.
While the presumption of legitimacy attached to the children born during marriage is a long-standing rule of Muslim Personal Law, some confusion seems to have been created in this regard by Article 128(1)(a) of the Qanun-e-Shahadat Order, 1984 (QSO). This provision suggests that no such presumption remains in a case where “the husband had refused, or refuses, to own the child.”
The judgment clarified that Article 128(1)(a) of QSO must be read in line with the letter and spirit of Section 2 of the West Pakistan Muslim Personal Law (Shariat) Act, 1962. This statutory provision stipulates that in issues of “legitimacy or bastardy”, where the parties concerned are Muslims, the courts shall apply rules of Muslim Personal Law derived from the Shariah. Under these rules, a father cannot deny the paternity of children bore to him by his wife, even through evidence, unless he expressly makes this denial within a maximum period of 40 days after the child’s birth.
Since the father had made no such timely denial in the case at hand, the Court deemed the disputed children legitimate, even in the absence of DNA evidence.
Taking stern notice of the High Court’s decision, the Court clarified that the well-known rules regarding presumption of children’s legitimacy must be strictly adhered to.
It emphasized that the jurists in the Islamic tradition who expounded these rules “were not unaware simpletons lacking in knowledge.
The conclusiveness of proof in respect of legitimacy of a child was properly thought out and quite deliberate... the law does not give a free license to individuals and particularly unscrupulous fathers, to make bald assertions and thus to stigmatize children as well as their mother.”