Le palak Bacha jaidad main poora Hissa le sakta hai
The Supreme court of Pakistan decided new case law in which discussed adopted child will be considered a real child(Le palak) and no one his brother and sister can challenge after the death of adopty father and he will be considered the real son only adopty father can challenge the record himself if the father doesn't challenge, no one can challenge.
- Mojoda case law main fawad bhai ne apni bhain Laila ki waldiat ko challange kia.
- Case title was Laila Qayyum vs Fawad Qayum & Others PLD 2019 SC 449
- court ne sab se pehle iss sawal ko discuss kia ke kia fawad ( bhai) yeh haq rakhta hai ke wo apni sister ki waldiat ko challange kare.
- Or diclaration ka dawa file kare or documents ko cancel karne ki darkhwast kareunder section 42 of the Specific Relief Act, 1877
- Kia specific relief act ke tehat aisa kia ja sakta hai. Declaration ke case ma koi banda apna haq mangta hai ju ke mojod hota hai
- Kia manfi declaration talab ki ja sakti hai
- Court ne case law ka hawala dia or qarar dia ke section 42 specific relief act ke tehat har qisam ki declaration talab nahi ki ja sakti.
- Lihaza Supreme Court of Pakistan ne qarar dia ke waldiat ki declaration bap ke ilawa koi challenge nahi kar sakta.
- Issi mozo per same judgement main Sindh High court ne bhi same observation di hai. Or sindh High court ka faisla neeche article ke aakhar main sath attached hai
Case laws on lepalak property and maintenance
Lepalak beta or beti warasat main hissa ke haqdar hain. (2010 YLR 1327)
Lepalak bachi bhi sagi bachi ki tarah bap se kharcha leene ki haqdar hai.
Plj 2023 lahore note 111
………….
12. قانون شہادت آرڈر کے آرٹیکل 128 کے ذریعہ بھی مقدمہ کو روک دیا گیا تھا۔ وقت کے اندر صرف ایک قابل باپ لےپالک
آرٹیکل 128 میں تجویز کردہ، a کی ولدیت کو چیلنج کر سکتا ہے۔
بچہ.
128. جے
(a) شوہر نے بچے کی ملکیت سے انکار کر دیا تھا، یا انکار کر دیا تھا۔
یا
(b) بچہ چھ قمری ختم ہونے کے بعد پیدا ہوا۔
اس تاریخ سے مہینے جس دن عورت نے قبول کیا تھا۔
کہ عدت کا دور ختم ہو گیا۔
(2) شق (1) میں موجود کوئی چیز کسی غیر مسلم پر لاگو نہیں ہوگی اگر وہ اس کے عقیدے سے مطابقت نہیں رکھتی۔
عبدالقیوم (والد) نے لیلیٰ کو چیلنج نہیں کیا تھا۔
ولدیت آرٹیکل 128 کسی بھی بھائی کو اجازت نہیں دیتا کہ وہ اپنی بہن کی ولدیت کو چیلنج کرے ۔
Judgement
Hon’ble Supreme Court of Pakistan in its latest
judgment titled as Mst. Laila Qayyum vs Fawad Qayum & Others
(PLD 2019 SC 449) held as under:-
“7. First of all we need to consider whether Fawad had the
requisite legal character to seek the abovementioned
declarations and seek the cancellation of the said
documents. A declaratory suit is filed under section 42 of
the Specific Relief Act, 1877, reproduced hereunder:
42. Discretion of Court as to declaration of status or right.
Any person entitled to any legal character or to any right
as to any property, may institute a suit against any person
denying, or interested to deny, his title to such character or
right and the Court may in its discretion make therein a
declaration that he is so entitled, and the plaintiff need not
in such suit ask for any further relief:
Bar to such declaration. Provided that no Court shall
make any such declaration where the plaintiff, being able
C.R.No.194-D/2009
10
to seek further relief that mere declaration of title omits to
do so.
Explanation. A trustee of property is a “person interested
to deny” a title adverse to the title of someone who is not in
existence, and for whom, if in existence, he would be a
trustee.
8. A court can make a declaration in a suit in favour of a
person who is entitled to any legal character or to any
right, as to any property, which another is denying. Laila
has not denied either Fawad‟s legal character or his right
to any property. Instead Fawad alleges that Laila is not
Abdul Qayum‟s daughter and therefore not his heir and not
entitled to inherit the properties left behind by him (the
prayer however only refers to “legacy”). Fawad seeks a
negative declaration and one which has nothing to do with
Fawad‟s own legal character. To consider whether such
declarations can be sought under section 42 of the Specific
Relief Act it would be appropriate to review the case law.
9. In the case of Deokali Koer v Kedar Nath Lawrence
Jenkins, CJ, writing over a hundred years ago said that not
every kind of declaration can be sought under section 42 of
the Specific Relief Act and that the Courts needed to be
vigilant in entertaining all manner of suits:
The section does not sanction every form of declaration,
but only a declaration that the plaintiff is “entitled to any
legal character or to any right as to any property;” it is the
disregard of this that accounts for the multiform and, at
times, eccentric declarations which find a place in Indian
plaints.
If the Courts were astute - as I think they should be – to see
that the plaints presented conformed to the terms of section
42, the difficulties that are to be found in this class of
cases, would no longer arise. Nor would plaintiffs be
unduly hampered if the provisions of section 42 were
enforced, for it would be easy to frame a declaration in
such terms as would comply with the provisions of the
section where the claim was one within its policy.
In Khanchand v Jacobabad Municipality a division bench
of the Sindh Chief Court, consisting of Davis, CJ and
Thadani, J, reiterated what Lawrence Jenkins, CJ had said
in Deokali Koer about the scope of section 42 of the
Specific Relief Act. The suit had sought a declaration that a
certain person had ceased to be the Chief Officer of a
Municipality was dismissed, which decision was upheld by
the Chief Court.
In the case of Abdur Rahman Bhuiya v Commission of
Narayanganj Municipality the High Court of East Pakistan
(Dacca), consisting of Rahman and Murshad, JJ, also
endorsed the views of Lawrence Jenkins, CJ. A suit, which
had sought a declaration that from a particular date the
defendants could not continue as Commissioners of the
Municipality and all their acts, including demanding taxes
C.R.No.194C.R.No.194-D/2009
11
from the plaintiffs were illegal, was held not to be
maintainable under section 42 of the Specific Relief Act.
In the case of Abdur Rahman Mobashir v Amir Ali Shah
Aftab Hussain, J identified the type of declarations which
could be sought with regard to one‟s legal character and
those which could not:
31. Section 42 of the Specific Relief Act applies only to a
case where a person files a suit claiming entitlement to any
legal character or to any right to property which
entitlement is denied by the defendants or in denying which
the defendants are interested. It cannot apply to a case
where the plaintiffs do not allege their entitlement to any
legal character or any right to property or its denial by the
defendants. As a necessary corollary it cannot apply to a
case where only the entitlement to legal character or the
property of the defendants is denied by the plaintiffs.
A number of cases from the courts of the subcontinent were
considered which led the learned Judges of the Lahore
Court to observe and determine, that:
36. It is clear from these authorities that section 42 would
be attracted to a case in which the plaintiff approaches the
Court for the safeguard of his right to legal character or
property but where right to his own legal character or
property is not involved, the suit is not maintainable. The
suit must be one which must bring benefit to him in regard
to these two rights. No suit involving any other right,
hypothetical or abstract would be competent under that
section. The Court will not therefore entertain suits in
which no benefit accrues to the plaintiff or where the
plaintiff sets up merely an abstract right to satisfy his ego
or satisfy his grudge against another person. Section 42
cannot be invoked in matters of mere sentiments which
have no concern with the vindication of the plaintiff‟s title
to status and property.
Section 42 of the Specific Relief Act deals with legal right
as well as the threat or invasion to it by a person having
corresponding duty not to invade it but to respect it. It
would, therefore, apply only to a case where a plaintiff sues
for declaration of his own legal right whether to property
or legal character provided it is invaded or threatened with
invasion by the defendant. It does not deal with the
negation of the defendant‟s rights. Consequently, a
declaration that the defendant has no right to do something
which does not infringe upon any legal right to property or
legal character of a plaintiff cannot be given under section
42. The cause of action under this section should,
therefore, be a threat of injury to the plaintiff‟s own right
or removal of cloud cast on his own title. It does not allow
the plaintiff to come to the Court to show his hostility only
to what the defendant considers his own right and which
action does not cast any cloud upon the plaintiff‟s own
title.D/200912
With regard to seeking a negative declaration the Court
observed that this could only be done if there was, “some
threatened injury or infringement of the plaintiff‟s right”:
43. I agree with the argument of the learned counsel for the
respondents that even negative declaration can be given
Salim Ullah Beg v. Mst. Makin Begum (1), Sughran v.
Rehmat Ali (2), Amina Begum v. Ghulam Nabi (3) and U
Arzeina v. Ma Kyin Shwe and another (4), but such
declaration must also be one affecting some threatened
injury or infringement of the plaintiff‟s right. This type of
negative declaration can be granted on the principle that
what can be done directly can also be justified if done
indirectly.
In the case of Rehmatullah Khan v Government of Pakistan
Sardar Muhammad Raza Khan, J writing for a threemember Bench of this Court, held that, a suit filed on the
basis of an application submitted to the Government
seeking a declaration that the plaintiff was entitled to the
installation of a petrol pump was not maintainable:
7. The permission by Pakistan State Oil to Gul Nawaz
Khan to sell their petrol in his filling station, if at all
granted, would have constituted a license which even if
granted could have been withdrawn at any time. Seen from
any angle, no vested right was created by filing an
application or even by submission of a feasibility report. In
the event of non-creation of any vested right, no relief can
be sought under section 42 of the Specific Relief Act. In the
circumstances, the petitioners were rightly non-suited by
the two Courts below.
…………….
12. The suit was also barred by Article 128 of the Qanun-eShahadat Order. Only a putative father, within the time
prescribed in Article 128, may challenge the paternity of a
child.
128. J
(a) the husband had refused, or refuses, to own the child;
or
(b) the child was born after the expiration of six lunar
months from the date on which the woman had accepted
that the period of iddat had come to an end.
(2) Nothing contained in clause (1) shall apply to a nonMuslim if it is inconsistent with his faith.
Abdul Qayum (the father) had not challenged Laila‟s
paternity. Article 128 does not permit a putative brother
(Fawad) to challenge his sister‟s paternity.”
Another judgement on same matter. lepalik ya adopted son , High Court Karachi division bench held that no one can challenge if someone give any child to his name axcept his Father who gave him his name
Judgement
IN THE HIGH COURT OF SINDH,
AT KARACHI
Present:
Irfan Saadat Khan and
Yousuf Ali Sayeed, JJ
High Court Appeal No. 166 of 2019
Appellants
:
Najmul Hassan & others,
through Mr. Abadul Hasnain,
Advocate.
Respondents
:
Mst. Romana Qamar & others
through Mr. Khawaja Shamsul
Islam, Advocate.
Date of hearing
:
20.10.2020, 10.11.2010 and
24.11.2020
JUDGMENT
YOUSUF ALI SAYEED, J -
This Appeal under Section 3 of
the Law Reforms Ordinance 1972 emanates from Suit
No.1821 of 2018 instituted by the Appellants before this Court
on the Original Side (the “Suit”), espousing their claim to
inheritance in respect of the estate of their late brother, Syed
Qamarul Hassan (the “Deceased”), who apparently passed
away on 08.02.2018, with the claim being entirely predicated
on their assertion that the Deceased and Respondent No.1 (i.e.
his widow) remained issueless and the Respondent No.2 was
an adoptee, with it being contended on that premise that they
(i.e. the Appellants) along with the widow (i.e. the Respondent
No.1) were thus the only heirs of the Deceased and were
accordingly entitled to succeed to his property, to the
exclusion of the Respondent No.2.
2. Apropos the picture thus painted through the plaint, the
cause of action was articulated in Paragraph 11 thereof
as follows:
“11. That the cause of action for filing the above
suit has been accrued firstly in July, 1986,
when the deceased married to the Defendant
No 1; Secondly, in the year 2009, when the
deceased and the Defendant No 1 adopted a
male child and given him name as Shamsul
Hassan; Thirdly, on various dates, when the
deceased made the above mentioned assets
and properties; Fourthly, on 08.02.2018
when the brother of the Plaintiffs, namely,
Syed Qamar-ul-Hassan has been expired and
left behind the Plaintiffs and Defendant No. 1
as his only surviving legal heirs, who are
jointly inherited the above mentioned
movable and immovable Properties; Fifthly,
when the Defendant No. 1 took-over the
physical possession of the said movable and
immovable Properties and enjoying the same
and driving, fetching and availing the benefits
there-from and are not distributing any single
penny amongst other legal heirs of the
deceased Syed Qamar-ul-Hassan (i.e. the
Plaintiffs); Sixthly, when the Defendant No.1
after keeping the Plaintiffs on false hopes and
promises refused to distribute the said
properties amongst all the legal heirs of the
deceased Syed Qamar-ul-Hassan strictly in
accordance with law and Sharia; Seventhly,
on 31.07.2018 when the Plaintiffs through
their counsel wrote letters to the respective
companies, wherein the deceased was having
shares; Eighthly, on 07.08.2018 when the
counsel for the Plaintiffs received replies of
the companies through their lawyer and the
same is still continue day by day till the
redressal of all and entire grievances of the
Plaintiffs including distribution of all and
entire above mentioned movable and
immovable assets and properties and benefits
there from derived by the Defendant No.1 etc.
amongst all the legal heirs of the deceased
according to their respective share and as per
law and Sharia.
[emphasis supplied]
3. As per the prayers then enunciated, the Appellants
principally sought a declaration as to the Respondent No
2‟s alleged lack of consanguinity and hereditary status
vis-à-vis the Deceased, coupled with a direction for the
Respondent No.1 to disclose what were termed “the entire
true and real facts”, with consequential relief being
elicited through further prayers seeking the distribution
of the estate as well as restraining the Respondents Nos.
1 and 2 from dissipating or creating any interest in
favour of a third party over the corpus thereof. For
purpose of reference, prayers (a) and (b) are reproduced:
“(a). Declare that the adopted male child, namely
Syed Shamsul Hassan is not the legal heir of
deceased Syed Qamar-ul-Hassan and therefore
he has neither inherited nor has any share in
the movable and immovable assets and
properties left behind by the deceased Syed
Qamar-ul-Hassan.
(b). Direct the Defendant No.1 to disclose the
entire true and real facts about the said
adopted male child Syed Shamsul Hassan
before the Honourable Court; so also direct all
the authorities concerned not to treat the said
adopted male child Syed Shamsul Hassan as
the son of deceased Syed Qamar-ul-Hassan
under any circumstances of whatsoever
nature.”
4. As it transpires, the plaint was completely bereft of
reference to any document or material that could evince
their claim as to the adoptive status of the Respondent
No.2, hence, presumably to bolster their hand, the
Appellants had inter-alia proposed in Paragraph 7 that:
“7. … It is further submitted that in case of
refusal of the Defendant No.1 about the fact
that Syed Shamsul Hassan is an adopted
child, the Plaintiffs are ready and willing to
bear all and entire expenses of DNA test etc.,
in order to confirm and prove the fact of
actual, real and true relation of the said
adopted male child Syed Shamsul Hassan
with the Defendant No.1 and deceased Syed
Qamar-ul-Hassan and that he is not a legal
heir of deceased Syed Qamar-ul-Hassan, so all
and entire dispute and issues would be
resolved and the assets and properties left
behind by the deceased Syed Qamar-ulHassan could be distributed amongst the real
and actual legal heirs of the deceased Syed
Qamar-ul-Hassan strictly in accordance with
law and Sharia.”
5. The Respondents Nos. 1 and 2 jointly filed their written
statement, whereby they categorically denied the
allegations and along with which they annexed copies of
various identity documents relating to the Respondent
No.2 generated from the official computerized record - viz.
his Birth Certificate, Form-B and the Family Registration
Certificate, as well as a copy of his Passport issued on
16.03.2011. The aforesaid Respondents also filed an
Application under Order 7, Rule 11 CPC, bearing CMA
No. 17222/18 (the “Underlying Application”), seeking
the rejection of the plaint on the following grounds:
“(i) That the suit as framed is not maintainable as
the plaintiffs have no locus standi and legal
character to file the same.
(ii) That the suit is barred in terms of Sections 42,
54 and 56 and all the enabling provisions of
the Specific Relief Act, hence the same is liable
to be dismissed with exemplary cost.
(iii) That a suit for partition should have been filed
with a unified title and unified possession
which are lacking in the present suit.
Admittedly the suit property is not in the name
of the plaintiffs nor their predecessor, hence
suit for partition is not maintainable and liable
to be dismissed with heavy cost.
(iv) That the suit is also barred in terms of the
mandatory provisions of Shariah, Quran and
Sunnah as well as Article 128 of Qanoon
Shahadat Order and also in terms of the West
Pakistan Muslim Personal Law Shariat
Application 1962 hence is liable to be
dismissed with heavy cost
6. After hearing the submissions advanced on behalf of the
Parties for and against the Underlying Application, the
learned single Judge seized of the matter was pleased to
allow the same vide an Order made on 04.03.2019 (the
“Impugned Order”), with the plaint consequently being
rejected, hence this Appeal.
7. Proceeding with his arguments, learned counsel for the
Appellants submitted that the learned single Judge had
erred in allowing the Underlying Application, as the case
set up in terms of the plaint had been viewed through the
prism of Article 128 of the Qanun-e-Shahadat Order,
1984 (the “QSO”) and held to have been barred on that
basis, whereas, per learned counsel, the claim being one
of adoption rather than illegitimacy, was removed from
Article 128; instead fell within the contemplation of
Articles 46 and 64 of the QSO, with triable issues having
been raised that necessitated a determination of the Suit
on merits, after the settlement of issues, evidence and so
on. He sought to advance his case by contending that
prior to the date of birth of the Respondent No. 2, the
Respondent No.1 had suffered an ectopic pregnancy, due
to which she had to undergo a procedure for removal of
both the pregnancy and the tube. Per learned, counsel,
this condition, coupled with the fact that the Respondent
No.1 was around 45 of years of age at the time of the
Respondent No.2‟s birth, provided arguable grounds.
Reliance was placed on the judgments in the cases
reported as Muhammad Akram vs. Mst. Haliman Bibi
and 6 others 2010 CLC 781, Hote Khan and 2 others vs.
Mst. Khanzadi and 2 others 1987 MLD 694, and Haji
Allah Bakhsh vs. Abdul Rehman and others 1995 SCMR
459.
Conversely, learned counsel for the Respondents Nos. 1
and 2 submitted that the Impugned Order had been
correctly made. He submitted that all of the data entries
in the official computerized record showing the Deceased
and Respondent No.1 as being the parents of the
Respondent No.2 had been undertaken during the
lifetime of the Deceased, under his aegis, with the
Deceased having consciously and correctly acted to
ensure so. He submitted that such a record was
irrefutable, and argued that the Appellants had no locusstandi to maintain the Suit so as to question the same
and/or parentage of the Respondent No.2 and that no
question of the Respondents being required to undergo a
DNA test could conceivably arise. He contended that the
Suit was vexatious and misconceived and had been filed
for the lust of money, with the ulterior motive of depriving
the Respondent No.2 of his identity and right of the
inheritance. In support of his contentions, he placed
reliance upon the judgments of the Honourable Supreme
Court in the cases reported as Mst. Asma Naz vs.
Muhammad Younas Qureshi 2005 SCMR 401, Ghazala
Tehsin Zohra vs. Mehr Ghulam Dastagir Khan and
another PLD 2015 SC 327, Mst. Laila Qayyum vs. Fawad
Qayum PLD 2019 SC 449, as well as a Single Bench
judgment of this Court authored by one of us (namely
Yousuf Ali Sayeed, J), while sitting on the Original Side, in
the case reported as Saeeduddin Qureshi vs. Waqar
Saeed & 3 others 2020 MLD 1441.
9. Having heard and considered the arguments advanced,
we would turn firstly to the Impugned Order so as to look
to the reasoning of the learned Single Judge, as reflected
in Paragraphs 7 and 8 thereof, which read as follows:
“7. It is my candid opinion that the only personwho could question the parentage of the
defendant No.2 was his late father, and it would
only be entertained during his lifetime while
after his death under the law this chapter is
closed forever. Nevertheless, it should be noted
that in order to prove the family lineage; there
are some Islamic conditions that are taken into
account in Islamic legislation as such Sharia
does not recognize this kind of testing. The Holy
Prophet صلى الله عليه وسلمsaid:
“The boy is for the owner of the bed and
the stone is for the person who commits
an illegal sexual intercourse (i.e. the
child will not be traced back to him).”
(Al-Bukhari and Muslim)
8. From the above narration of the Holy Prophet صلى الله عليه وسلم
it is clear that whosoever has a wife and she
give birth to a child on his bed, it is his child
and his parentage is definitely traced back to
him. I would like to accentuate that under the
provision of Article 128 of Qanoon-e-Shahadat,
even the father of a child can question the
parentage of a child within six lunar month of
his birth and not thereafter. It is also my
considered view that even in case of denial, the
alleged father cannot demand DNA matching, if
the child is born to a woman during the
continuity of his marriage with her. In such
case, the only way available to him is by way of
Li‟aan i.e. both spouses make an oath that
he/she is truthful in his/her claim and then
invoke the curse of Allah on the one who is lying
and repeat it thrice. This action only takes place
when a man denies his child and accuses his
wife with adultery. Nevertheless, an adverse
claim regarding the parentage of a person by the
close relatives of his father, like in the present
case, cannot be entertained in any
circumstance. On the contrary, in the present
case, the father of the defendant No.2 has
admitted and acknowledge the defendant No.2
as his legitimate child, as such the plaintiffs‟
claim to the parentage of defendant No.2 cannot
be entertained. It is not out of place to highlight
that as per the dicta of the Hon‟ble Supreme
Court laid down in the case of Ghazala Tehsin
Zohra (supra), DNA testing in civil cases is not
permissible. The upshot of the entire discussion
is that neither any cause of action accrued in
favour of the plaintiffs nor the relief claimed by
them is permissible under the law, as such the
listed application is allowed and the plaint of the
instant suit is rejected by invoking the provision
under Order VII Rule 11 CPC. All pending
applications are also disposed of
10. Whilst the aforementioned finding may have been made
with reference inter alia being made to Article 128 of the
QSO, that is not to say, as was sought to be contended
by learned counsel of or the Appellants, that the learned
single Judge based his assessment of the case entirely on
the assumption that the case was one of illegitimacy.
Indeed, it is evident from the Impugned Order that the
learned single Judge essentially found that the
Appellants had no locus standi in the matter and that
there was therefore no valid cause of action underpinning
the Suit. As such, it is this determination that falls to be
tested as per the cited caselaw on the subject.
11. As for the precedents cited on behalf of the Appellant, the
cases of Muhammad Akram and Hote Khan (Supra) are
totally distinguishable on the facts and no principle of
law was laid down therein that is applicable to the matter
at hand, whereas the case of Haji Allah Bakhsh touched
upon the principle that the contents of the plaint are to
be presumed to be correct for purposes of an assessment
under Order 7, Rule 11 CPC, but that strict view has
then come to be refined in terms of the subsequent
judgment of the Apex Court in the case reported as Haji
Abdul Karim and others v. Messrs Florida Builders (Pvt)
Limited PLD 2012 SC 247, where it was held as follows:
“After considering the ratio decidendi in the above
cases, and bearing in mind the importance of Order
VII, Rule 11, we think it may be helpful to formulate
the guidelines for the interpretation thereof so as to
facilitate the task of courts in construing the same.
Firstly, there can be little doubt that primacy, (but not
necessarily exclusivity) is to be given to the contents of
the plaint. However, this does not mean that the court
is obligated to accept each and every averment
contained therein as being true. Indeed, the language
of Order VII, Rule 11 contains no such provision that
the plaint must be deemed to contain the whole truth
and nothing but the truth. On the contrary, it leaves
the power of the court, which is inherent in every court
of justice and equity to decide whether or not a suit is
barred by any law for the time being in force
completely intact. The only requirement is that the
court must examine the statements in the plaint prior
to taking a decision.
Secondly, it is also equally clear, by necessary
inference, that the contents of the written statement
are not to be examined and put in juxtaposition with
the plaint in order to determine whether the averments
of the plaint are correct or incorrect. In other words
the court is not to decide whether the plaint is right or
the written statement is right. That is an exercise
which can only be carried out if a suit is to proceed in
the normal course and after the recording of evidence.
In Order VII, Rule 11 cases the question is not the
credibility of the plaintiff versus the defendant. It is
something completely different, namely, does the
plaint appear to be barred by law.
Thirdly, and it is important to stress this point, in
carrying out an analysis of the averments contained in
the plaint the court is not denuded of its normal
judicial power. It is not obligated to accept as correct
any manifestly self-contradictory or wholly absurd
statements. The court has been given wide powers
under the relevant provisions of the Qanun-eShahadat. It has a judicial discretion and it is also
entitled to make the presumptions set out, for example
in Article 129 which enable it to presume the existence
of certain facts. It follows from the above, therefore,
that if an averment contained in the plaint is to be
rejected, perhaps on the basis of the documents
appended to the plaint, or the admitted documents, or
the position which is beyond any doubt, this exercise
has to be carried out not on the basis of the denials
contained in the written statement which are not
relevant, but in exercise of the judicial power of
appraisal of the plaint.
12. By contrast, the judgments cited on behalf of the
Respondents are of decided relevance, with the case of
Asma Naz (Supra) being that of a child who had come
forward to file suit after attaining majority, seeking to
restrain her father from denying that she was his real
daughter. Noting that she had always been treated as a
real daughter and her official documents reflected that
she had been publicly known and acknowledged as
being such, the Honourable Supreme Court observed as
follows:
“It may be noted that according to Mahomedan
Law right of inheritance is-extended to a heir
whose legitimate status is accepted, otherwise,
such right neither can be extended nor acquired. It
is also a settled proposition of law that the
legitimate or illegitimate status of a person is
established in view of the proof of birth but in a
case where such proof is not coming forward, then
on the rule of acknowledgement by an
acknowledger, in respect of status of a person, a
conclusive presumption can be drawn that he/she
is his/her legitimate child and once such status is
confirmed, it cannot be destroyed by any
subsequent act of the acknowledger, or of anyone
claiming through him, as it has been held in the
cage of Muhammad Allahdad Khan and another v.
Muhammad Ismail Khan and others 1888 ILR. Vol.
X Allahabad 289. In this report another important
question was also highlighted i.e. "if a man
acknowledges another to be his son and other be
nothing, which obviously renders it impossible
that such relation should exist between them, the
parentage will be established." Reference may also
be made to the case of Muhammad Azmat Ali Khan
v. Lalli Begum and others (I.L.R. Vol. IX page 8)
where their lordships of Privy Council observed
"according to Mahomedan Law the
acknowledgement and recognition of children by a
father as his sons gives them the status of sons,
capable of inheriting as legitimate sons. Such
acknowledgement may be in the express or
implied, in the latter case the inference from the
acts of father must depend upon the
circumstances of each particular case." Applying
the principle highlighted in this judgment on the
case in hand in the light of documentary evidence,
noted hereinabove, it can safely be held that
petitioner/plaintiff had always been treated/
acknowledged by the respondent/ defendant as his
daughter”
13. Even more relevantly, the other cases relied upon by the
Respondents were all matters where either the putative
father or a sibling had sought to deny the paternity of a
party. For instance, the case of Mehr Ghulam Dastagir
Khan (Supra), emanated from a suit where a father had
sought a declaration to the effect that certain children
were not his natural/biological offspring and that any
official record in this regard was bogus and had been
fraudulently prepared. After examining Article 128 of the
Qanun-e-Shahadat Order in juxtaposition with Section 2
of the West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 (Act V of 1962) and the rules of
Muslim Personal Law, the Honourable Supreme Court
held that legitimacy/paternity must be denied by the
father immediately after birth of the child and within the
post-natal period (maximum of 40 days) after the birth of
the child, and there can be no lawful denial of paternity
after this stipulated period. The relevant excerpt from
that judgment is reproduced as follows:
“For this purpose, it is necessary to ascertain the
rules of Muslim Personal Law when a person denies
that he is the natural/biological father of children
born within the period stipulated in Article 128 ibid.
The Muslim Personal Law (Shariat) is clear and well
settled on the subject. Firstly, it provides that
legitimacy/paternity must be denied by the father
immediately after birth of the child as per Imam Abu
Hanifa and within the post natal period (maximum
of 40 days) after birth of the child as per Imam
Muhammad and Imam Yousaf.
There can be no lawful denial of paternity after this
stipulated period. The Hedaya, Fatawa-e-Alamgiri
and other texts are all agreed on this principle of
Shariat. In the present case the daughter Hania
Fatima was born on 21-3-2000 while the son
Hassan Mujtaba was born on 9-2-2001. The very
first denial of paternity appearing from the record is
in the talaq nama (Exh.D3) which was made on 26-
6- 2001. Clearly, therefore, while applying the
principles of Muslim Personal Law (Shariat) as
mandated by the Act V of 1962, the respondentplaintiff cannot be allowed to deny the
legitimacy/paternity of the two children. This is also
consistent with Article 2(9) of the QSO which, when
read in the context of the present case, does not
allow the Court to allow any evidence to be adduced
to disprove legitimacy. The wisdom of this rule of
Muslim Personal Law cannot be gainsaid,
considering in particular the patriarchal and at
times misogynistic societal proclivities where women
frequently do not receive the benefit of laws and on
the contrary face humiliation and degrading
treatment. It is for the honour and dignity of women
and innocent children as also the value placed on
the institution of the family, that women and
blameless children have been granted legal
protection and a
13. The rationale of the law set out in Article 128
of the QSO read with section 2 of Act V of 1962 is
quite clear. Both statutes ensure (in specified
circumstances) an unquestioned and
unchallengeable legitimacy on the child born within
the aforementioned period notwithstanding the
existence or possibility of a fact through scientific
evidence. The framers of the law or jurists in the
Islamic tradition 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. There is a much greater
societal objective which is served by adhering to the
said rules of evidence than any purpose confined to
the interests of litigating individuals. There are
many legal provisions in the statute book and rules
of equity or public policy in our jurisprudence where
the interests of individuals are subordinated to the
larger public interest. In our opinion the law does
not give a free license to individuals and particularly
unscrupulous fathers, to make unlawful assertions
and thus to cause harm to children as well as their
mothers.”
14. In the case of Laila Qayyum (Supra), which was
somewhat more akin to the instant case, a suit had been
filed whereby the plaintiff had alleged that the party
who was the Petitioner before the Apex Court was “an
abandoned infant in a local hospital” and had been
adopted by his parents, late Abdul Qayum and Nasreen
Begum, and brought up as their own daughter, with
declarations having been sought that she was not their
real daughter and had no right to their legacy. A prayer
was also advanced that the documents showing her to
be their daughter be cancelled to such extent. The
matter had come up to the Honourable Supreme Court
from an order made by the trial Court, allowing an
application for DNA testing moved by the plaintiff,
which Order had then been set aside on appeal but
restored by the Peshawar High Court under its writ
jurisdiction. The relevant passages from the Judgment
rendered by the Apex Court in the matter are as
follows
“8. A court can make a declaration in a suit in
favour of a person who is entitled to any legal
character or to any right, as to any property,
which another is denying. Laila has not denied
either Fawad‟s legal character or his right to any
property. Instead Fawad alleges that Laila is not
Abdul Qayum‟s daughter and therefore not his
heir and not entitled to inherit the properties left
behind by him (the prayer however only refers to
“legacy”). Fawad seeks a negative declaration and
one which has nothing to do with Fawad‟s own
legal character…”
“10. To challenge another‟s adoption or legitimacy
of birth does not assert the plaintiff‟s own legal
character. In the case of Daw Pone v. Ma Hnin
May17 the Court18 upheld the dismissal of a suit
which sought “a declaration that the defendant
was not the keittima daughter [a particular kind of
adoptee] of her and her late husband”. The Court
held, that:
“Looking at S. 42, Specific Relief Act, it
applies only in cases in which a person
entitled to some legal character or to any
right as to any property brings a suit
against a person denying or interested to
deny his title to such character or right,
and the relief to be given there-under is
purely discretionary. Nobody has never
denied that Daw Pone is entitled to any
legal character or right as to property
that I can see. But she is bringing a suit
for a declaration to establish a negative
case, for, some time or other, I suppose,
the defendant has claimed to be her
keittima daughter. The learned District
Judge dismissed that suit, apparently
upon the merits and taking the view that
the defendant was the keittima daughter
of the plaintiff.”
11. Fawad also seeks the cancellation of
documents which show Abdul Qayum to be Laila‟s
father. A suit seeking cancellation of documents is
filed under section 39 of the Specific Relief Act,
reproduced hereunder:
39. When
cancellation
may
be
ordered.
Any person against whom a written
instrument is void or voidable, who has
reasonable
apprehension that
such
instrument, if left outstanding, may
cause him serious injury, may sue to
have it adjudged void or voidable; and the
Court may, in its discretion, so adjudge it
and order it to be delivered up and
cancelled.
If the instrument has been registered
under the Registration Act, the Court
shall also send a copy of its decree to the
officer in whose office the instrument has
been so registered; and such officer shall
note on the copy of the instrument
contained in his books the fact of its
cancellation.
The documents, the cancellation of which
Fawad seeks are not shown to cause him serious
injury. Since the essential condition of causing
him serious injury, mentioned in section 39 of the
Specific Relief Act, is not met therefore Fawad‟s
suit seeking cancellation of the said documents is
also not maintainable.
12. The suit was also barred by Article 128 of the
Qanun-e-Shahadat Order. Only a putative father,
within the time prescribed in Article 128, may
challenge the paternity of a child.
128. Birth during marriage conclusive
proof of legitimacy.
(1) The fact that any person was born
during the continuance of a valid
marriage between his mother and any
man and not earlier than the expiration
of six lunar months from the date of the
marriage, or within two years after its
dissolution,
the
mother
remaining
unmarried, shall be conclusive proof that
he is the legitimate child of that man,
unless-
(a) the husband had refused, or refuses,
to own the child; or
(b) the child was born after the expiration
of six lunar months from the date on
which the woman had accepted that the
period of iddat had come to an end.
(2) Nothing contained in clause (1) shall
apply to a non-Muslim if it is inconsistent
with his faith.
Abdul Qayum (the father) had not challenged
Laila‟s paternity. Article 128 does not permit a
putative brother (Fawad) to challenge his sister‟s
paternity.
13. In the case of Ghazala Tehsin Zohra23 the
putative father was not allowed to challenge the
paternity of the child after the period mentioned in
Article 128 had expired. This Court reiterated that
a child born within the period mentioned in Article
128, “shall constitute conclusive proof of his
legitimacy”. The learned Judge observed, and we
agree, that:
It is for the honour of and dignity of
women and innocent children as also the
value placed on the institution of the
family, that women and blameless
children
have
been
granted
legal
protection
and
a
defence
against
scurrilous stigmatization. 24
Jawwad S. Khawaja, J further explained that
Article 128, “is couched in language which is
protective of societal cohesion and the values of
the community”
“16. Fawad sought to deprive Laila of her identity
and of her inheritance. The Court cannot legally
make the declarations the plaintiff seeks nor can
it order the cancellation of the documents. The
suit filed by Fawad cannot be decreed. To keep
such a suit pending only harasses the petitioner
further and may deprive her of her inheritance.
Already a lot of court time has been taken up to
attend to this frivolous suit. Therefore, we invoke
our ancillary powers, granted to us under Article
187 of the Constitution, as it is necessary for
doing complete justice, and exercising such
powers dismiss the suit pending before the Senior
Civil Judge Gulkada, Swat.”
15. Furthermore, as to the permissibility of DNA testing being
compulsorily carried out so as to conduct a comparative
analysis and match of their DNA (i.e. that of the plaintiff
and defendant) with that of their mother and other
siblings, the Apex Court went on observe and hold in that
very case (Ibid) that:
“14. Learned Mr. Awan is also right in referring to
the case of Salman Akram Raja wherein it was held
that a free lady cannot be compelled to give a
sample for DNA testing as it would violate her
liberty. If a sample is forcibly taken from Laila to
determine her paternity it would violate her liberty,
dignity and privacy which Article 14 of the
Constitution of the Islamic Republic of Pakistan
(“the Constitution”) guarantees to a free person.
The cases of Muhammad Shahid Sahil and B. P.
Jena referred to by learned Mr. Faisal Khan, who
represents Fawad, are distinguishable and are also
not applicable to the present case. In the case of
Muhammad Shahid Sahil the DNA of a rapist was
sought by the victim to compare it with the DNA of
the child born as a consequence of the rape. And in
the case of B. P. Jena the Indian Supreme Court
considered section 112 of the Evidence Act. Section
112 of the Evidence Act was the precursor of Article
128 of the Qanun-e- Shahadat Order, however, the
wording of the two provisions is materially different.
In any case, the Supreme Court of India observed
that, “In a matter where paternity of a child is in
issue before the court, the use of DNA is an
extremely delicate and sensitive aspect”26 and that:
DNA in a matter relating to paternity of a
child should not be directed by the court
as a matter of course or in routine manner,
whenever such a request is made. The
court has to consider diverse aspects
including presumption under Section 112
of the Evidence Act; pros and cons of such
order and the test of „eminent need‟
whether it is not possible for the court to
reach the truth without use of such test.27
15. There is yet another reason why a DNA test
should not be allowed. If the proposed DNA testing
is done it would neither confirm nor negate Laila‟s
paternity. The same also holds true for Fawad and
those of his siblings whom he acknowledges.
Abdul Qayum died sixteen years ago and his DNA
can now be accessed if his body is disinterred
from the grave and a sample taken from his
remains. Fawad‟s suit however is premised on the
assumption that he is the son of Abdul Qayum,
then, on the basis of this assumption, he denies
Laila‟s paternity. Fawad‟s assertion that Abdul
Qayum is his father is equally assumptive to Laila
asserting this.”
16. In yet another case analogous to that hand, being that of
Saeedudin Qureshi
(Supra),
the plaintiff had
unreservedly represented himself as being the real father
of the defendant and put down his name as such and
reflected the defendant to be his real son in all official
and academic records, but had then come forward after
decades of such conduct to allege that the defendant was
not his biological son and had been adopted. After the
demise of the plaintiff, the suit was then pursued by his
second wife and daughter from the second marriage.
Upon hearing of an Application under Order 7 Rule 11
CPC, those representatives of the putative father were
held to be estopped from denying paternity and the
status of the child, and with reference to case of Mehr
Ghulam Dastagir Khan (Supra), it was held such a denial
could not be made after the time period stipulated by the
Apex Court, and the principle could not be circumvented
by basing a case on the claim that the child had been
adopted and seeking a declaration to that effect. The suit,
being based on that footing, was thus held to be barred
and the Plaint rejected accordingly.
17. To our minds and as per our understanding, the
following principles may be distilled from these
judgments:
(a) That the status of a person in terms of his being of
legitimate or illegitimate birth is established in view
of the proof of birth but in a case where such proof
is not forthcoming, then on the rule of
acknowledgement by an acknowledger, in respect
of status of a person, a conclusive presumption can
be drawn that he/she is his/her legitimate child
and once such status is confirmed, it cannot be
destroyed by any subsequent act of the
acknowledger, or of anyone claiming through him;
(b) If a man acknowledges another to be his child and
there be nothing, which obviously renders it
impossible that such relation should exist between
them, parentage will be established;
(c) As per Mahomedan Law, the acknowledgement and
recognition of children by a father as his sons gives
them the status of sons, capable of inheriting as
legitimate sons. Such acknowledgement may be in
the express or implied, and in the latter case, the
inference to be drawn from the acts of father would
depend upon the circumstances of each particular
case;
(d) Continual unequivocal representation by a person
portraying himself or herself as the parent of a
child, identifying and holding out the child to be
his or her own, would then estop that person or
anyone else claiming as his or her representative
from denying paternity;
(e) Only the putative father may challenge the
paternity of a child, and that too, within the time
prescribed in Article 128 of the QSO, failing which
the suit would be barred;
(f) Article 128 of the QSO does not permit any other
person to challenge paternity and cannot be
circumvented by basing a case on the claim that a
child had been adopted and seeking a declaration to
that effect.
(g) To challenge another‟s adoption or legitimacy of
birth does not assert a plaintiff‟s own legal
character, and under Section 42 of the Specific
Relief Act, a declaration cannot be sought in that
regard or as to the persons incapacity to inherit,
and a suit seeking the cancellation of official
documents reflecting another persons parentage is
also not maintainable;
Another Judgement of Karachi High Court Division bench on the matter of lepalak or Adopted son
18. Indeed, if the position were otherwise, the floodgates
would be thrown open to an endless stream of litigation
on the part of persons seeking to disentitle others on a
mere allegation as to their adoptive status, whether
they be heirs seeking to thereby enhance their share(s)
or strangers to an estate seeking to succeed by ousting
those otherwise legitimately entitled.
19. In our view, in the matter at hand, the case sought to
advanced by the Appellants vide the Suit was clearly
barred by the aforementioned principles. As of their
own showing, while stating their cause of action, the
Appellants were clearly aware that the Deceased had
given the Respondent No.2 his name, and the plea
taken on their behalf during the course of arguments
as to their being unaware that the identity of the
Respondent No.2 was so reflected in his official
documents beggar‟s belief. The contention that they
ought to then have been allowed to seek cancellation of
those documents is also misconceived, with it being
apparent from the case-law referred that recourse to
such a step was not open to them in law.
20. That being so, we find no error or infirmity in the
Impugned Order and are of view that the learned single
Judge decided correctly in allowing the Underlying
Application. Hence, the Appeal fails, and is dismissed,
along with all pending miscellaneous applications.
JUDGE
JUDGE
اور ایک مقدمہ جس میں لے پالک کی منسوخی کا مطالبہ کیا گیا ہے۔
کسی دوسرے شخص کی ولدیت کی عکاسی کرنے والی دستاویزات
برقرار رکھنے کے قابل بھی نہیں؛
لیپالک یا گود لینے والے بیٹے کے معاملے پر کراچی ہائی کورٹ کے ڈویژن بینچ کا ایک اور فیصلہ
18. بے شک، اگر ان کا راستہ نہ روکا تو دوسری صورت میں، نہ ختم ھونے والے کیسز کے دروازے
قانونی چارہ جوئی کے ایک نہ ختم ہونے والے دھارے کے لیے کھول دیا جائے گا۔
ان لوگوں کی طرف سے جو دوسروں کو حق خودارادیت نہ دینے کے خواہاں ہیں۔
ان کی گود لینے کی حیثیت کے بارے میں محض الزام، چاہے
وہ وارث بنیں گے اور اس طرح اپنے حصے کو بڑھانا چاہتے ہیں
یا کسی پراپرٹی میں اجنبی کو بے دخل کرکے کامیاب ہونا چاہتے ہیں۔
جو دوسری صورت میں قانونی طور پر حقدار ہیں۔
19. ہمارے خیال میں، ہاتھ میں موجود معاملے میں، ایسی ہی کوشش کی گئی۔
اپیل کنندگان کی طرف سے سوٹ کے ذریعے پیش قدمی واضح طور پر تھی۔
مذکورہ بالا اصولوں سے منع کیا گیا ہے۔ ان کے طور پر
ان کی کارروائی کی وجہ بتاتے ہوئے، خود دکھانا،
اپیل کنندگان کو واضح طور پر معلوم تھا کہ متوفی کے پاس تھا۔
جواب دہندہ نمبر 2 کو اس کا نام، اور درخواست دی گئی۔
دلائل کے دوران ان کی طرف سے لیا گیا۔
کے طور پر ان کے لاعلم ہونے کی شناخت
جواب دہندہ نمبر 2 اپنے اہلکار میں اس قدر جھلکتا تھادستاویزات سائل کا موقف۔ یہ تنازعہ کہ وہ
اس کو دستاویزات کینسل کرنے کی اجازت دی جانی چاہیے تھی۔
ان دستاویزات کو بھی غلط فہمی میں ڈالا گیا ہے۔
کیس کے قانون سے ظاہر ہے کہ اس کا حوالہ غلط دیا گیا ہے۔
ایسا قدم اٹھانا قانون میں ان کے لیے اجازت نہیں ھے۔
Comments
Post a Comment