biological children maintenance .
 |
| biological children maintenance |
اگر والد ثابت ہو جاتا ہے تو وہ اس کی کفالت کا ذمہ دار ھوگا۔
یہ عدالتی فیصلہ بہت اہم ہے کیونکہ اس میں ناجائز بچے کی کفالت سے متعلق قوانین اور اسلامی اصولوں پر تفصیلی روشنی ڈالی گئی ہے۔ عدالت نے تسلیم کیا ہے کہ اگر کوئی شخص کسی بچے کا حیاتیاتی والد ثابت ہو جاتا ہے تو وہ اس کی کفالت کا ذمہ دار ہوگا، چاہے بچہ نکاح کے بغیر پیدا ہوا ہو۔
یہ فیصلہ پاکستانی قانون، اسلامی اصولوں اور بین الاقوامی مثالوں کو مدنظر رکھتے ہوئے کیا گیا ہے، جس میں دیگر ممالک جیسے بنگلہ دیش اور بھارت کے قوانین کا حوالہ بھی دیا گیا ہے۔ عدالت نے واضح کیا کہ:
- خاندانی عدالتیں ایسے مقدمات سننے کا اختیار رکھتی ہیں جہاں بچے کے حیاتیاتی والد ہونے کا دعویٰ کیا جائے۔
- ناجائز بچے کی کفالت والد پر لازم ہے، اگر حیاتیاتی رشتہ ثابت ہو جائے۔
- اسلامی اصول میں والد کو قانونی والدین کے حقوق حاصل نہیں، لیکن کفالت کی ذمہ داری سے انکار بھی نہیں کیا جا سکتا۔
- مختلف عدالتی نظائر سے واضح ہوتا ہے کہ ایسے معاملات میں بچوں کی فلاح و بہبود کو مقدم رکھا جانا چاہیے۔
یہ فیصلہ انصاف، مساوات اور اسلامی تعلیمات کے مطابق ایک اہم نظیر قائم کرتا ہے اور ناجائز بچوں کے حقوق کے تحفظ کی ایک مضبوط بنیاد فراہم کرتا ہے۔
Must read Judgement
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Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
….
Writ Petition No.43280 of 2022.
Muhammad Afzal.
Versus
Judge Family Court, etc.
J U D G M E N T.
Date of hearing:
20.11.2024.
Petitioner by:
Muhammad Imran Mushtaq Batalvi,
Advocate.
Respondent No.2 by:
M/s Malik Muhammad Afzal
Khokhar and Rana Luqman Hanif,
Advocates.
AHMAD NADEEM ARSHAD, J.
Through this
constitutional petition filed under Article 199 of the Constitution of
Islamic Republic of Pakistan, 1973, petitioner has called in question
the validity and legality of judgment and decree dated 25.06.2022
passed by learned Judge Family Court whereby suit of respondent
No.2 Esha Rani/Esha Bibi (alleged biological daughter of the
petitioner) for recovery of maintenance allowance was decreed.
2.
Necessary facts formulating background of the proceedings in
hand are that Maryam Zahid (mother of respondent No.2) was
allegedly raped by the present petitioner, for this occurrence an F.I.R.
bearing No.134 dated 04.03.2020 was registered against him for
offences under Section 376, 109 of Pakistan Penal Code, 1860, and
as a result of said rape, Maryam Zahid conceived and ultimately
minor respondent No.2 was born on 27.05.2020 and claimed that she
is biological daughter of the petitioner. She (Esha Rani/Esha Bibi,
W.P. No.43280 of 2022.
2
plaintiff/respondent No.2) instituted a suit for recovery of
maintenance allowance and claimed that she being biological
daughter is entitled to recover maintenance allowance from the
petitioner. The petitioner/defendant turned up before the Court and
contested the suit by filing written statement in contrast whereby he
negated the version of respondent No.2 and claimed that minor Esha
is not his daughter either legitimate or illegitimate. Learned Trial
Court vide order dated 07.06.2022 fixed interim maintenance
allowance of the minor at the rate of Rs.3000/- per month. Petitioner
assailed said interim order of fixation of maintenance allowance
through filing Writ Petition (No.39855 of 2022). The petitioner
failed to pay the said interim maintenance allowance, hence, his
defense was struck of vide order dated 25.06.2022 and the suit was
decreed by awarding maintenance allowance to the minor at the rate
of Rs.3,000/- per month. In the light of said judgment and decree this
Court disposed of the Writ Petition (39855 of 2022) being
infructuous. Hence, this petition.
3.
I have heard learned counsel for the parties at length and gone
through the record with their able assistance.
4.
After hearing learned counsel for the parties and going
through the record, I have noticed that this is not a case of recovery
of maintenance allowance simpliciter. The biological mother of
respondent No.2 has instituted the suit for recovery of maintenance
allowance by claiming therein that she was raped by the present
petitioner and for this occurrence an F.I.R. bearing No.134 dated
04.03.2020 was registered against him for offences under Section
376, 109 of Pakistan Penal Code, 1860. Contention of said lady in
the plaint is that as a result of rape, she conceived and ultimately
minor respondent No.2 was born on 27.05.2020, hence, being
biological daughter of the petitioner, minor is entitled to recover
maintenance allowance. The petitioner/defendant turned up before
the Court and contested the suit by filing written statement in
contrast whereby he negated the version of respondent No.2 and
W.P. No.43280 of 2022.
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claimed that minor Esha is not his daughter either legitimate or
illegitimate.
5.
The terms "legitimate child" and "biological child" are entirely
different. "Biological Child" refers to a child who is genetically
related to the parents. This term focuses on the genetic link between
the child and the parents, rather than the legal or social status. A
"biological child" can be born within a marriage or outside of it.
6.
A "legitimate child" refers to a child born to parents who are
legally married to each other at the time of the child‟s birth. This
term primarily has legal significance and is used to distinguish
children born within a lawful marriage from those born outside of
marriage (historically referred to as "illegitimate" or "illegitimate
children").
7.
In case of a legitimate child, a woman/mother institutes a suit
under The Family Courts Act, 1964 or approaches the Chairman of
concerned Union Council in the light of Section 9 of Muslim Family
Laws Ordinance, 1961, for recovery of maintenance allowance, the
Court fixes interim maintenance allowance as a temporary
arrangement and on failure of the defendant/father to pay interim
maintenance the Court strikes off his defence and decrees the suit
straightaway under Section 17-A of the Family Courts Act, 1964.
But in the case where a woman claims maintenance for her child
against the defendant/biological father, who denies the version, the
woman would first need to establish, through trustworthy evidence,
that the defendant is indeed the biological father of the child. The
burden of proving that the defendant is the biological father of the
child lies on the woman who claims the maintenance.
8.
An illegitimate child is a child born out of wedlock either as a
result of adultery or rape and he is not from Syubhah intercourse or
not from a child of slavery. In Islam, a child‟s status can be
determined through several methods. First, through legal marriage or
Fasid marriage between both parents. Second, through Syubhah
intercourse. The third is a father‟s acknowledgment that a child is his
biological child. Forth, evidence by two fair male witnesses. The
W.P. No.43280 of 2022.
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fifth, Qiyafah, is the recognition by experts who specialized in
determining descent base on physical characteristics and likeness.
The sixth is through Deoxyribonucleic Acid or DNA tests on
samples such as blood, hair, bone and sliva. The final method is
through laboratory testing which has 99.99% accuracy in the
determination of descent and can also be used to identify hereditary
genealogy for inheritance. All the methods mentioned above are
based on Hadiath of the prophet.
“(Descent) the child belongs to the span (legal marriage).
While there is no right for adultrers.” (Al-Bukhari, 2000 Hadiath
No.2092)”
9.
Once paternity is established, the defendant would then be
legally obligated to provide maintenance for the child. The court
would assess the defendant's financial capacity and the child‟s needs
to determine the appropriate maintenance allowance.
10. In view of the above, the Court has erred in law by granting
maintenance for the child without first ensuring, through the proper
process of evidence, that the child is indeed the biological offspring
of the petitioner. In cases where paternity is disputed, it is essential
for the Court to first establish, beyond a reasonable doubt, the
biological relationship between the child and the defendant. Without
recording sufficient evidence, the Court's decision to grant
maintenance prematurely bypasses a critical step in determining
legal responsibility. This failure undermines the principles of
fairness and due process in family law proceedings.
11. During the course of arguments, learned counsel appearing on
behalf of the petitioner mainly stressed that the Family Court lacks
jurisdiction to adjudicate upon this matter. He adds that mother of
minor respondent No.2 has to get a declaration from the competent
Court that said minor is biological child of the petitioner. He also
maintains that the petitioner is not bound to maintain an illegitimate
child. Now I discuss said objections that whether the Family Court
has jurisdiction to hear the case and whether the maintenance can be
awarded to an illegitimate child.
W.P. No.43280 of 2022.
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12. Previously, the law relating to maintenance of a child was
contained in Sections 488-490 of the Code of Criminal Procedure,
1898 (Cr.P.C.). For reference, Section 488 is reproduced as under:
"Order for maintenance of wives and children. (1) If any
person having sufficient means neglects or refuses to maintain
his wife or his legitimate or illegitimate child unable maintain
itself, a Magistrate of the first class may, upon proof of such
neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife or such child, at such
monthly rate, not exceeding four hundred rupees in the whole, as
such Magistrate thinks fit and to pay the same to such person as
the magistrate from time to time directs."
Said Section provides that if a person, despite having
sufficient means, neglects or refuses to maintain his wife or his
legitimate or illegitimate child who is unable to maintain itself, such
person may be ordered by a Magistrate to pay monthly allowance for
the maintenance of his wife or child. Said Section made it obligatory
upon the father to maintain his legitimate and illegitimate children.
Later on, Muslim Family Laws Ordinance, 1961, was
introduced. Section 9 of the said Ordinance deals with maintenance.
For reference, said Section is reproduced as under:
9. Maintenance.– (1) If any husband fails to maintain his wife
adequately, or where there are more wives than one, fails to
maintain them equitably, the wife, or all or any of the wives, may,
in addition to seeking any other legal remedy available, apply to
the Chairman who shall constitute an Arbitration Council to
determine the matter, and the Arbitration Council may issue a
certificate specifying the amount which shall be paid as
maintenance by the husband.
(1A) If a father fails to maintain his child, the mother or
grandmother of the child may, in addition to seeking any other
legal remedy, apply to the Chairman who shall constitute an
Arbitration Council and the Arbitration Council may issue a
certificate specifying the amount which shall be paid by the father
as maintenance of the child.]
(2) A husband or wife may, in the prescribed manner, within the
prescribed period, and on payment of the prescribed fee, prefer an
application for revision of the certificate, [to the Collector]
concerned and his decision shall be final and shall not be called in
question in any Court.
(3) Any amount payable under sub-section (1) or (2), if not paid
in due time, shall be recoverable as arrears of land revenue
Provided that the Commissioner of a Division may, on an
application made in this behalf and for reasons to be recorded,
transfer an application for revision of the certificate from a
W.P. No.43280 of 2022.
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Collector to any other Collector, or to a Director, Local
Government, or to an Additional Commissioner in his Division.
Said Section provides that if a person fails to maintain his wife
or children, the wife or children has remedy to apply to the Chairman
who shall constitute an Arbitration Council to determine the matter
and Arbitration Council may issue a certificate specifying the
amount which shall be paid as maintenance.
13.
Subsequently, the West Pakistan Family Courts Act, 1964,
was promulgated. Section 05 of the Act deals with the jurisdiction.
For reference, said Section is reproduced as under:
“5. Jurisdiction.- (1) Subject to the provisions of the Muslim
Family Laws Ordinance, 1961, the Family Courts shall have
exclusive jurisdiction to entertain, hear and adjudicate upon
matters specified in Part I of the Schedule.
(2) Notwithstanding anything contained in the Code of Criminal
Procedure, 1898 (Act of 1898), the Family Court shall have
jurisdiction to try the offences specified in Part II of the Schedule,
where one of the spouses is victim of an offence committed by the
other.
(3) The High Court may with the approval of the Government,
amend the Schedule so as to alter, delete or add any entry
thereto.”
“SCHEDULE
[See Section 5]
[PART I]
1. Dissolution of marriage including Khula.
2. Dower.
3. Maintenance.
4. Restitution of conjugal rights.
5. Custody of children and the visitation rights of parents to meet
them.
6. Guardianship.
6 A. Matters pertaining to return of child under the Hague
Convention on the Civil Aspects of International Child Abduction,
1980.”
7. Jactitation of marriage.
8. Dowry.
[9. Personal property and belongings of a wife.
PUNJAB AMENDMENT
In the Schedule, in Part I, for entry at serial No.9, the
following shall be substituted:
“9. The personal property and belongings of a wife and a
child living with his mother.
10. Any other matter arising out of the Nikahnama.”
14. After enactment of above said provisions, the President
through Ordinance XXVII of 1981 “Federal Laws (Revision and
Declaration) Ordinance, 1981”, repealed certain laws, which are
W.P. No.43280 of 2022.
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spent or have otherwise become unnecessary or have ceased to be in
force otherwise than by express or specific repeal and Sections 488-
890 Cr.P.C. were repealed.
15. Before repeal, Section 488 of Cr.P.C. was scrutinized by the
Council of Islamic Ideology vide its report on Criminal Procedure
Code and following observations were passed:
“It would be very strange to lay down that only the adulteress is
to bear the brunt of the burden of the child and the law is
powerless to make the adulterer liable to maintenance of the
child(ren) though he was at least an equal partner in sexual
enjoyment and in the birth of the unwanted child. There is no
prohibition in Shari‟ah for this. I am of the opinion that this
Section is not repugnant to the Shari‟ah, but it would be better
to avoid any doubt and to replace the words „putative father‟
with the expression „the person from whom he was begotten‟.
16. The august Supreme Court of Pakistan, in its judgment titled
“Muhammad Khalil-ur-Rehman V. Mst. Shabana Rahman” (PLD
1995 SC 633), observed that grant of maintenance provided under
Section 488 Cr.P.C. is covered by the provisions of West Pakistan
Family Courts Act, 1964. It was held in the following words:
"When the matter ultimately came before this Court it was held
that the pending proceedings under Section 488, Cr.P.C. were
affected by the promulgation of W.P. Family Courts Act, which
only changed the forum for decision of such cases. It will thus
be seen that the grant of maintenance provided under Section
488, Cr.P.C. was specifically covered under the provisions of
the West Pakistan Family Courts Act. Therefore, the Family
Courts created under W.P. Family Courts Act, had the exclusive
jurisdiction after the date of promulgation of West Pakistan
Family Courts Act to try the cases of maintenance. "
17. The Hon‟ble Supreme Court of Pakistan in a Full Bench
judgment cited as “Major Muhammad Khalid Kareem V. Mst. Sadia
Yaqoob and others” (PLD 2012 SC 66), observed that Family Court
has exclusive jurisdiction under Section 5 of West Pakistan Family
Courts Act, 1964, to entertain, hear and adjudicate all matters which
fall within the 1st schedule to West Pakistan Family Court‟s Act,
1964.
18. The West Pakistan Family Courts Act, 1964 is a special
enactment designed to provide a streamlined, efficient, and
accessible legal framework for resolving disputes related to marriage,
W.P. No.43280 of 2022.
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family affairs, and matters directly connected with family life. The
Act was introduced with the goal of addressing the specific needs of
individuals and families in disputes regarding personal relationships,
such as divorce, maintenance, custody, dower, etc. One of the core
purposes of the Family Courts Act is to ensure that family disputes
are resolved as quickly as possible. Family disputes often involve
sensitive matters, and the Act was designed to expedite the legal
process, allowing parties to resolve issues without prolonged delays.
The Act empowers the Family Courts to hear and decide matters
related to marriage, divorce, maintenance, custody, and other familyrelated issues. It applies to a wide range of personal disputes that
could arise in the context of family life.
19. Although the Family Courts Act, 1964 primarily focuses on
issues directly related to marriage and family affairs but it has a
broader implication that encompasses the welfare of the family unit
The Act‟s broad language is not limited to only the relationships
between spouses, but also covers issues related to children, such as
maintenance and welfare. These matters are inherently connected to
family affairs because the maintenance of a child is essential to
ensuring the well-being of the family unit as a whole.
20. Even though the wording primarily refers to "family affairs
and marriage," maintenance for children is a logical extension of the
Act‟s broader purpose of resolving disputes related to family welfare.
The Act acknowledges the need to provide legal recourse for
financial support of the family members, including children, when
one party (typically the father) fails to fulfill their financial
responsibilities.
21.
Section 5 of the Family Courts Act, 1964 grants family courts
jurisdiction over a wide range of issues related to marriage,
maintenance, and custody. Specifically, it allows for the adjudication
of maintenance claims for children, even if the claim involves the
biological relationship between the child and the alleged father. The
Act applies to matters concerning maintenance of "minor children"
and the "welfare" of the family, and this includes situations where a
W.P. No.43280 of 2022.
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woman claims maintenance for her child from the alleged biological
father. Given the family welfare principle embedded in the Family
Courts Act, 1964, the claim of a woman for maintenance of her
biological child can certainly be covered under the Act. The Act‟s
jurisdiction over family matters is sufficiently broad to include
disputes concerning child maintenance, even if the child‟s biological
relationship with the alleged father is disputed. As long as the court
is satisfied with the evidence of biological paternity or legal
acknowledgment, it can entertain and adjudicate a claim for child
maintenance under the provisions of the Family Courts Act, 1964.
22. In view of the above discussed legal provisions as well as
judgments of the apex Court, it has become clear that the mandate
provided under Section 488 of Cr.P.C. to the Magistrate
subsequently came within the jurisdiction of Family Courts after
promulgation of the Family Courts Act, 1964. Although, the words
legitimate or illegitimate have not been specifically mentioned in the
Act, but the word maintenance in its broader sense covers all the
matters.
23. In view of the above discussion, this Court does not feel any
hesitation to hold that while the Act specifically references "family
affairs and marriage," its broader interpretation allows it to cover
cases involving the maintenance of children, including disputes over
biological paternity. Hence, the Family Court has jurisdiction to
adjudicate upon the matter.
24. The Federal Shariat Court while dealing with the objection
upon Section 90 (4) of the Sindh Children Act-XII of 1955 with
regard to „the person liable to maintain a child‟ as included in case of
illegitimacy, the putative father of an illegitimate child observed as
under:
“It was said that in Islam there is no concept of a putative father,
but the law as envisaged above does not give any right to the
person whose adulterous relationship with the mother of the child
resulted in his birth. According to the Sunnah, the child is
considered the child of his mother and does not inherit from the
person who is responsible for his earthly existence, nor does such
a person inherit from the child. The above sub-Section does not,
in any manner belittle or make any incursion on this well-known
principle. For the limited purpose of the Act, it merely makes him
W.P. No.43280 of 2022.
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responsible for bearing the expenses of the child. The Shari‟ah
proposition (the parentage is determined by the conjugal bed and
the person committing adultery has only disappointment in store)
applies to right of being a parent. It does not concern itself with
liability. The word „putative father‟ does not mean that any
paternal right is to vest in him. This is only a manner of
description to make him responsible for maintenance.”
25. The rights of the children born of committing rape are seldom
recognized in the Bangladeshi legal system. Such children are
entitled to be known by the identity of their father or mother or both
as prescribed in Section 13 of the Nari O Shishu Nirjatan Daman Ain,
2000 (The Prevention of Oppression Against Women and Children
Act, 2000). Said Section is reproduced as under:
“Provision regarding the child born in consequence of rape:
Notwithstanding anything contained under any other law for the
time being in force, any child born in consequence of a rape:-
i.
The maintenance of that child shall be borne by the person
who commits rape;
ii.
The Tribunal may determine after the birth of the child , in
whose custody the child shall be and how much money
shall be provided to the legal guardian, by the person who
commits rape, as expenses for the maintenance of the child;
iii.
This expenses shall be provided upto the period, the child
attains twenty-one years if male and, marriage of the
female child, if not disabled, and until the date he/she
obtains the capability to earn his/her living, if disabled."
26.
Section 144 of the "Bharatiya Nagarik Suraksha Sanhita",
India, makes it responsibility of father to afford maintenance of his
children whether legitimate or illegitimate.
27. Holy Quran Verse No. 2:233 makes it obligatory for mothers
to breastfeed their children for two years and orders their fathers to
afford maintenance of mother of the child. Translation of the verse
goes as follows :-
"(2:233) If they (i.e. the fathers) wish that the period of suckling
for their children be completed, mothers may suckle their
children for two whole years. (In such a case) it is incumbent
upon him who has begotten the child to provide them (i.e.
divorced women) their sustenance and clothing in a fair manner.
But none shall be burdened with more than he is able to bear;
neither shall a mother suffer because of her child nor shall the
father be made to suffer because he has begotten him. The same
duty towards the suckling mother rests upon the heir as upon
him (i.e. the father). And if both (the parents) decide, by mutual
consent and consultation, to wean the child, there is no blame on
them; if you decide to have other women suckle your children
there is no blame upon you, provided you hand over its
compensation in a fair manner. Fear Allah and know well that
W.P. No.43280 of 2022.
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Allah sees all that you do."
28. This verse makes no reference to illegitimate child. Allama
Qazi Muhammad Sana Ullah Usmani in Tafsir-e-Mazhari interpreted
وعلی المولودلہ the word
sa l ff sa:
")اور سج اک ہچب ےہ)رپس( ینعی ابپ رپ ویکہکن ہچب ایس یک وہج ےس وہات ےہ اور ایکیس رطف وسنمب ایک
اجات ےہ۔ ابعرت اک ریغت اس ٰینعم یک رطف ااشرہ رکےن ےئلیک ےہ ہک دودھ ولپاےن اک ووجب اور دودھ
الپےن وایل اک رخچ ابپ ےک ذہم ےہ اور )ُہل ںیم( ما ا صاصک ےک ہ ے ےہ اور ایس وہج ےس
اظرہارلواتی ںیم ااما اوب ہفینح اک وقل ہی ےہ ہک ابغل ڑلیک اور ابغل ڑلےک اک رخچ اخک ابپ یہ ےک ذےم
ےہ امں ےک ذہم ںیہن ےہ۔"
29. No reference has been made in the interpretation of the verse
to the maintenance of child born without bond of nikah.
30.
Sahih Muslim (Volume 4), Hadith (4431-32), narrates the
incident of a woman who got pregnant as a result of Zina in the
following words :-
"[4431] It was narrated from Sulaimân bin Buraidah that his
father said: "Mâ'iz bin Mâlik came to the Prophet صلى الله عليه وسلم and said: Ὁ
Messenger of Allâh, purify me! He said: 'Woe to you, go back and
seek forgiveness from Allâh and repent to Him.' He came back
shortly after that and said: 'O Messenger of Allah, purify me!' He
said: 'Woe to you, go back and seek forgiveness from Allah and
repent to Him. He came back shortly after that and said O
messenger of Allah purify me!" The Prophet صلى الله عليه وسلم said something
similar, then when it was the fourth time the Messenger of Allah
صلى الله عليه وسلم said to him from what should I purify you?" He said: From
Zina. The Messenger of Allah صلى الله عليه وسلم asked, 'Is he insane?' and he
was told that he was not insane. He said: Has he drunk wine? A
man got up and smelt his breath and he did not find any smell of
wine. The Messenger of Allah صلى الله عليه وسلم said: 'Did you commit Zina?
He said „Yes.‟ So he ordered that he be stoned. The people were
of two minds about him. Some said: „He is doomed, he has been
encompassed by his sin.‟ Others said: there is no repentance better
than that of Ma‟iz, he came to the prophetصلى الله عليه وسلم put his hand in his
and said kill me with stones.‟ This (controversy) carried on for
two or three days, then the Messenger of Allah صلى الله عليه وسلم came when
they were sitting. He greeted them with Salâm then sat down, and
said: 'Pray for forgiveness for Mâ'iz bin Malik. They said: 'May
Allâh forgive Mâ'iz bin Mâlik.' The Messenger of Allâh said: 'He
has repented in such a way that if it were to be divided among a
nation it would be sufficient for them‟
"[4432]Then the Ghamidi woman came and said: "O Messenger
of Allah, I have committed Zina, purify me;" but he turned her
away. The next day she said: "O Messenger of Allah, why are you
W.P. No.43280 of 2022.
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turning me away? Perhaps you are turning me away as you turned
Ma'iz away. But by Allah, I am pregnant." He said: "Then no (not
now), go away until you give birth." When she gave birth, she
brought the child to him wrapped in a cloth, and said: "Here he is,
I have given birth." He said: "Go away and breastfeed him until
he is weaned." When she had weaned him, she brought the boy to
him, with a piece of bread in his hand and said: "Here, O Prophet
of Allah, I have weaned him, and he is eating food." He handed
the boy over to one of the Muslim men then he ordered that a pit
be dug for her, up to her chest he ordered the people to stone her."
Although, this Hadiath is referred by the Religious Scholars
while commenting upon the maintenance of illegitimate child but
careful examination of the Hadiaths (referred supa) reflects that the
Holy Prophet صلى الله عليه وسلم did not pass any order for maintenance and handed
over the child to one of the Muslims present in the Majlis, as
biological father of the child (Za‟id) had already been stoned to
death.
31. Para No. 370 of the D.F. Mulla‟s Muhammadan Law relates to
maintenance of children and it goes as follows:-
370. Maintenance of children and grandchildren. (1) A father
is bound to maintain his sons until they have attained the age of
puberty. He is also bound to maintain his daughters until they are
married. But he is not bound to maintain his adult sons unless
they are disabled by infirmity or disease. The fact that the children
are in the custody of their mother during their infancy (S. 352)
does not relieve the father from the obligation of maintaining
them. But the father is not bound to maintain a child who is
capable of being maintained out of his or her own property.
(2) If the father is poor, and incapable of earning by his own
labour, the mother, if she is in easy circumstances, is bound to
maintain her children as the father would be.
(3) If the father is poor and infirm, and the mother also is poor,
the obligation to maintain the children lies on the grandfather,
provided he is in easy circumstances. "
There is no prohibition by a biological father to maintain his
illegitimate child.
32. While commenting on the relationship of illegitimate child
with his biological father, the Honorable Lahore High Court in a case
titled “Roshni Desai V. Jahanzaib Niazi” PLD 2011 Lahore 423
observed :-
"Under Islamic Law, the father of an illegitimate child has no
legal tie with the child even though he is the biological father and
the blood tie between the two is undisputed. Such a father has no
legal relationship whatsoever with the minor so much so that the
W.P. No.43280 of 2022.
13
child does not inherit from his father or vice versa which is
otherwise in the case of a legitimate offspring. However, an
illegitimate child has a full legal tie with his mother and there is
no obstacle in the way of the child inheriting from his mother or
vice versa. In fact, the mother of an illegitimate child is not only
entitled to the custody of the child but is also regarded as the
guardian of the child to the total exclusion of the father. In this
regard, one can refer to Ameer Ali's Muhammad Law, Volume II,
page 238, Seventh Edition, which quotes the classic works of
Radd-ul-Mukhtar to state that "the custody of illegitimate children
appertains exclusively to the mother and her relations". Likewise,
in DF Mulla's Mohammadan Law, Seventeenth Education; at
page 94 it is stated that "An illegitimate child is considered to be
the child of its mother only and as such it inherits from its mother
and her relations and they inherit from the .such child" and that
"an illegitimate child does not inherit from its putative father or
his relations. According to Gulzar Begum versus Suggi (62)
A.S.C. 93, the right of custody of a minor illegitimate child can be
enforced by his or her mother by means of a writ of habeas
corpus."
33. Pre-emble of the Constitution of Islamic Republic of Pakistan,
1973, guarantees fundamental rights including equality of status.
Article 2-A of the Constitution, the Objectives Resolution will be a
part of substantive provision, which provides that sovereignty over
the entire Universe belongs to Allah Almighty alone and the
Authority which he has delegated to the state of Pakistan, through its
people for being exercise with the limits prescribed by Him is a
sacred trust. The Objectives Resolution, inter-alia, ensures the social
justice as enunciated by Islam to be fully observed and Muslims are
expected to be enable to order their lives in individual and collective
spheres in accordance with the teachings and requirements of Islam
as settled in the Holy Quran and Sunnah.
34. The Honorable Lahore High Court, while deciding appeal
against conviction under section 376 PPC in case law reported as
“Nadeem Maqsood V. the State” (2015 P.Cr.L.J 1633) not only
upheld conviction but also awarded compensation Rs.10,00,000/- to
the minor girl born as a result of the crime with following
observation:-
“In view of all above, I am of the considered view that the minor
baby girl born in result of crime committed by the appellant is "a
person" suffering mental anguish and psychological damage for
her whole life, thus, she is entitled for the compensation provided
under the law. I, therefore under section 544-A(5), Cr.P.C. direct
W.P. No.43280 of 2022.
14
the appellant to pay a compensation of Rs.10,00,000 (Rupees One
Million) to the victim child namely Shazia Nadeem (her name is
mentioned in Exh.PG, an application to the SHO for incorporation
of fact of birth of girl child dated 7-12-2010) and in case of
default of payment of such compensation the appellant shall
suffer further imprisonment for a period of six months. Needless
to add that the victim having her independent right to sue the
appellant under the Civil Law is at liberty to do the same as and
when she so desires and this order of compensation in her favour
shall not prejudice her any claim on civil side. The compensation
amount after realization shall be deposited in the name of the
minor girl in the shape of Defence Saving Certificates and the
amount so deposited shall only be payable to the minor after she
attains her majority. It is important to clarify that in case of dire
need of the minor, her legal Guardian can apply to the court of
learned Guardian Judge for encashment of any part or the whole
amount and the learned Guardian Court concerned shall pass an
order keeping in view the best interest of the minor strictly in
accordance with law. As far as fine of Rs.100,000 ordered by the
learned trial court is concerned, the amount of fine if realized
shall be paid to the victim of the rape Mst. Humaira Yasmeen
under section 545 Cr.P.C.”
35. In view of the above discussion, equity, fair-play and justice
demands that the respondent No.2, if proves to be a biological child
of the petitioner, then she must be compensated and maintained by
him. The person, having begotten the child, is bound to provide for
its maintenance. The biological father is also morally under
obligation to maintain his illegitimate child.
36. For the aforementioned reasons, this petition is hereby allowed.
Consequently, the matter is remanded to the learned Trial Court with
the direction to record the plaintiff's evidence regarding the specific
claim made in the plaint that the petitioner/defendant is the
biological father of respondent No. 2, Esha Rani/Esha Bibi. If, after
recording the evidence, the Court concludes that the minor is indeed
the biological child of the defendant, the proceedings may continue
for the determination of the maintenance allowance.
W.P. No.43280 of 2022.
15
37. Parties are directed to appear before learned District Judge,
Nankana Sahib on 10.03.2025 who shall entrust the matter to the
Court of competent jurisdiction at Tehsil Sangla Hill.
(AHMAD NADEEM ARSHAD)
JUDGE.
ANNOUNCED IN OPEN COURT ON__________________
JUDGE.
APPROVED FOR REPORTING.
JUDGE.
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