TRAILBAZLING VERDICT ON MAINTENANCE OF ILLEGITIMATE CHILD: 1O1 CRITICAL ANALYSIS
BRIEF FACTS OF THE CASE
The controversy in the case is concerning a claim for recovery of maintenance allowance made by Esha Rani (also known as Esha Bibi) against the petitioner, Muhammad Afzal, alleging she is his biological daughter. From the record, Maryam Zahid, the mother of Esha Rani, claimed to have been raped by the petitioner, which resulted in the minor’s birth on 27.05.2020. Following this, an FIR No. 134/2020, dated 04.03.2020, was lodged by one Special Branch Lahore under Sections 376 and 109 of the Pakistan Penal Code (PPC), 1860. On this premise, the minor, by her mother, filed a suit for recovery of maintenance allowance before the Judge Family Court, alleging that the petitioner, being her biological father, was bound by law to support her. However, the petitioner refused to acknowledge paternity and averred that Esha Rani was neither his legitimate nor illegitimate daughter.
During the proceedings, the Trial Court, vide order dated 07.06.2022, ordered the petitioner to pay Rs. 3,000 monthly as interim maintenance allowance to the minor. Instead of implementing the order, the petitioner challenged it by means of Writ Petition No. 39855 of 2022, but failed to secure any relief. Because of his failure to pay the interim maintenance, the Defence of the petitioner was struck out under Section 17-A of the West Pakistan Family Courts Act, 19641 by the Family Court on 25.06.2022 and the suit was decreed in favour of Esha Rani, awarding her Rs. 3,000 monthly maintenance allowance. Subsequently, Writ Petition No. 39855 of 2022 became infructuous because the Family Court had already passed the decree.
Thereafter, Muhammad Afzal initiated the current Writ Petition No. 43280 of 2022 before the Lahore High Court under Article 199 of the Constitution questioning the validity and legality of the judgment of the Family Court. The petitioner mainly argued that the Family Court had no jurisdiction to rule on the case without determining the paternity of the minor first. He contended that as he had disowned paternity, the mother ought to have sought the declaration of paternity by the competent court prior to instituting the suit for maintenance. In addition, the petitioner contended that under Islamic law, no illegitimate child is entitled to rights of maintenance, rendering the decree judicially defective. The case, therefore, involved principal legal issues of jurisdiction, requirements of evidence in paternity matters, and rights of children born out of wedlock to claim maintenance.
LEGAL PRINCIPLES & ARGUMENTS
The case centers mainly around three legal concerns: 1st the jurisdiction of the Family Court, 2nd the question of paternity, and 3rd the illegitimate child’s right to maintenance under Islamic law and the legal system of Pakistan, although the most relevant question in the case. According to the petitioner, Muhammad Afzal, the decree was challenged on the grounds that the Family Court did not have the territorial jurisdiction to try a suit for maintenance where the question of paternity was in issue. His lawyer submitted that prior to the grant of maintenance, the court had to determine, with the aid of evidence, that the petitioner was, in fact, the biological father. It was submitted that as the petitioner’s paternity was categorically denied, the mother of the minor ought to have sought a declaration of paternity from a judicial forum competent to try the issue.
The petitioner, in addition to arguing above, was supported also by Islamic law to the effect that Islam does not levy any economic burden against a man for an illegitimate child. Citing the Hadith recorded in Sahih Al-Bukhari, it was stated: “The child belongs to the span (legal marriage), where there is no right for the adulterer.” Al-Bukhari, 2000 Hadiath No.2092) It was contended by the petitioner that Islamic law recognizes that such a child born out of wedlock is referred to solely by the mother, and there is no legal or economic liability in law against such a child from the father. It was further contended that the Quranic verse 2:2332, under which fathers are liable to maintain children, only applies to legitimate children and not to out-of-wedlock children.
Additionally, where an unmarried woman gives birth to a child, most Sunni scholars hold the view that the child belongs to the mother and not to the adulterer, even if there is certainty about the father being the adulterer and his identity is known. As such, in both of these scenarios, there is no right of maintenance and inheritance between the ‘illegitimate’ child and the biological father and his relatives. A mutual right of inheritance, however, does exist between the mother and her ‘illegitimate’ child under Sunni law. Again, the law provides for a mutual right of inheritance to the ‘illegitimate’ child and his/her maternal relatives.
Furthermore, to enable the ‘illegitimate’ child to be raised and maintained, such a child is attributed to the mother and is entitled to inherit from the mother and her kin under Sunni law. In one fatwa provided by the Permanent Committee for Islamic Research and Issuing Fatwas (al-Lajnah ad-Daa’imah), it was ruled that the illegitimate child was to be attributed to the mother and would have the same rules applied to him as to every Muslim in case his mother is Muslim. The reasoning behind such classification is that the child is to be considered innocent of all sins at birth and cannot be faulted or shamed for the acts performed by the mother. This rationale has support in the following verse of the Quran: “And no bearer of burdens will bear the burden of another.” [Quran 35:18]
Similarly, under Shia law, any illegitimate child is not the responsibility of neither the mother nor the biological father, even if the biological father’s identity is known for certain. According to Shia law, the rights to upkeep and inheritance of an ‘illegitimate’ child are not granted at all. An ‘illegitimate’ child has no right to inheritance whatsoever from neither the mother nor the maternal relatives3.
Furthermore, petitioners depended upon, the Lahore High Court, in Roshni Desai v. Jahanzaib Niazi4 noted that under the Islamic law, there is no legal bond between the putative father and the illegitimate child, and even if he is really the biological father, and the blood relation is unquestionable. The ruling held that such a father has no legal connection at all with the child, i.e., the child cannot inherit from him, and he cannot inherit from the child, unlike in case of legitimate offspring. However, the ruling underlined the fact that the illegitimate child has full legal relationships with the mother, including rights of inheritance. The ruling further quoted Ameer Ali’s Muhammadan Law and D.F. Mulla’s Mohammadan Law, stating firmly that custody of the illegitimate child vests solely with the mother and her relations. It further quoted Gulzar Begum v. Suggi5, holding firmly the right of the mother to exercise custody through a writ of habeas corpus.
In return, the parties contended before the respondents that the Family Court exercised jurisdiction under Section 56 of the West Pakistan Family Courts Act, 1964, granting sole jurisdiction in matters of maintenance. They also invoked the provisions of Section 488 of the Code of Criminal Procedure (CrPC), 18987, which recognized the right of both legitimate and illegitimate children to the grant of maintenance prior to its repeal. The parties also invoked case law, specifically Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman8, where the Supreme Court of Pakistan reiterated that Family Courts have sole jurisdiction in case of maintenance.
The ruling further cited Major Muhammad Khalid Kareem v. Mst. Sadia Yaqoob9, where the Supreme Court reiterated the fact that Family Courts have sole jurisdiction in cases specified under Section 5 of the Family Courts Act, such as maintenance.
The participants have also quoted international law provisions, and Bangladesh’s “Nari O Shishu Nirjatan Daman Ain, 2000”10 is one of those which mandates the father to support a rape baby. Moreover, under the Indian law, it is the duty of the father to provide for his children whether legitimate or illegitimate11.
The Hon’ble Court, while giving consideration to the above arguments, recognized the fact that a biological relationship is to be determined prior to imposing the obligation of maintenance. The judgment referred to the fact that scientific evidence, such as DNA testing, may help to determine paternity. According to the holding, the Family Court was wrong in law while awarding maintenance without first establishing, by proper evidence, whether the minor was the biological offspring of the petitioner or otherwise. Consequently, the case was remanded to the Trial Court with directions to take evidence on paternity prior to deciding the issue of maintenance. However, prior to all else, it settled the law to the effect that children born out of wedlock are entitled to the maintenance, if they are proved to be biological born offspring.
REASONING & RATIONALE OF JUDGEMENT
The Lahore High Court went through each legal, religious, and evidentiary detail of the case very carefully, specifically going through the jurisdiction of the Family Court, the disputed paternity, and the rights of the illegitimate child to the payment of maintenance. It underscored the fact that prior to awarding maintenance, the paternity of the child has to be decided through lawful procedures by the Family Court. It ruled that where the paternity is disputed, “the burden of proof lies on the party claiming maintenance” has been settled in line with various precedents.
A sharp distinction was drawn between “biological child” and “legitimate child”. The court noted “The words ‘biological child’ and ‘legitimate child’ are totally different. A ‘biological child’ is one to whom the parents are genetically connected, whereas a ‘legitimate child’ is one born to lawful wedded parents.”
The court went further to observe that although there is a legal duty of the father to support a legitimate child, biological relationship by itself does not necessarily incur the duty of support in the case of unmarried persons. It was therefore important to confirm whether the petitioner was the biological father of Esha Rani before holding him liable for support.
On the issue of jurisdiction, the petitioner contended that the Family Court was not competent to try the case without prior determination of paternity. This contention was rejected by the court by reference to Section 5 of the West Pakistan Family Courts Act, 1964, according to which Family Courts have special jurisdiction to try all questions of maintenance. It drew support from the Supreme Court judgment in Major Muhammad Khalid Kareem v. Mst. Sadia Yaqoob12, reaffirming that Family Courts have the authority to resolve all matters of family nature, including claims for maintenance. It clarified further: “The Family Court has jurisdiction to try the case. Although the Act is silent about ‘legitimate or illegitimate children,’ the meaning of the term ‘maintenance’ is wide enough to embrace such claims.”
The judgment also touched upon Islamic law principles. According to the petitioner, there is no right of maintenance to which the illegitimate child is entitled under the law of Islamic jurisprudence. Yet, the court noted there was no specific prohibition in Shariah to refuse the biological father to provide monetary support. It quoted from the report presented by the Council of Islamic Ideology, which stated “It would be very strange to lay down that only the adulteress is to bear the burden of the child while the adulterer is absolved of all responsibility.”
Further, the court quoted the Federal Shariat Court’s verdict under Section 90(4) of the Sindh Children Act, where it was established that the putative father may be made liable to support the child even where he has no legal rights as a parent to the child
The court considered international views, observing that according to Bangladesh’s Nari O Shishu Nirjatan Daman Ain, 2000, the rapist is obligated under law to support a child born out of rape. In like manner, Section 144 of India’s Bharatiya Nagarik Suraksha Sanhita imposes obligations of maintenance upon fathers whether the child is born legitimate or illegitimate
Lastly, the court faulted the procedure followed by the Family Court in the case. It held the view that as the petitioner had disputed paternity, the Family Court ought to have ordered DNA testing or examined some credible evidence prior to granting maintenance. The judgment emphasized “Without documentation of adequate evidence, the granting of maintenance prematurely by the Family Court circumvents an important step in assessing legal liability.”
Therefore, the Lahore High Court set aside the decree of the Family Court and remanded the case for fresh proceedings, ordering the Trial Court to first establish paternity through appropriate evidence before deciding about maintenance.
LEGEL AND RELIGIOUS VIEW ON THE MAINTENANCE OF ILLEGITIMATE
The issue of whether a putative father is obligated to furnish support to an illegitimate child is still contentious both under Islamic law and under the laws of Pakistan. An illegitimate child is not lawfully related to the biological father under laws traditionally followed under Islamic law, as confirmed by the Lahore High Court in Roshni Desai v. Jahanzaib Niazi, where it was ruled that “Under Islamic law, the father of an illegitimate child has no legal relation with the child although he is his biological father and the genetic bond of relationship between the two is unquestioned.”
Then again, during its critical examination of Section 488 of the Cr.P.C, the Council of Islamic Ideology provided a different view about the economic liability of the father of an illegitimate child. In its Criminal Procedure Code report, the Council noted:
It will be very odd to impose only the burden of the offspring on the adulteress and to render the law helpless to hold the adulterer responsible for the upkeep of the offspring, even though he was at the very least an equal partner in sexual gratification and in the offence of giving birth to the unwanted offspring. This is not prohibited by Shari’ah. I hold the view that this Section is not opposed to the Shari’ah, but in order to clear any doubt, it will be better to substitute the phrases ‘putative father’ with the term ‘the person from whom he was begotten.’
These comments portray a progressive trend in Islamic legal thinking to impose financial liability for an illegitimate child on the biological father. This is in line with the legal doctrine to not burden the mother with sole parental obligations, where the father has played some role in bringing the child into existence.
The Federal Shariat Court, in its judgment of Section 90(4) of the Sindh Children Act-XII of 1955, also ruled on the economic liability of the putative father in the case of the illegitimate child, noting that: “For the purposes of the Act, it only makes him liable to defray the cost of the child. The Shari’ah proposition (parentage determined by the bed of wedlock and the adulterer has nothing but disappointment in front of him) is relevant to the right of parenthood. It has nothing to do with liability.”
This line of reasoning supports the case that even if an illegitimate child cannot have any rights to the father’s possessions, economic liability is an independent legal issue and one which might well be covered under statutory law.
An additional progressive move in the judicial development in this line took the form of judgment from the Lahore High Court in the case of Nadeem Maqsood v. The State. In the said case, the conviction under Section 376 PPC was confirmed, and the court also ordered compensation of Rs. 10, 00,000/- to the minor girl who was born as a consequence of rape, with the 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.”
FINAL VERDICT
Upon careful consideration of the legal and evidentiary grounds of the case, the Lahore High Court reversed the judgment and decree of the Family Court. It ruled that prior to any imposition of the obligation of maintenance, the petitioner must prove paternity through reliable evidence. It ruled that the Family Court was wrong in law to order the grant of the minor’s claim of maintenance without holding her to establish if she was the biological child of the petitioner. Thus, the matter was sent back to the Trial Court with the following instructions:
1. The Trial Court should conduct the hearing and elicit evidence to establish if the petitioner is indeed the father of Esha Rani.
2. In the event of establishing paternity, the case can then progress in regard to the determination of the maintenance allowance.
3. The Judge In Charge of Nankana Sahib District was instructed to assign the case to a Family Court at Tehsil Sangla Hill with appropriate jurisdiction for a fresh assessment.
4. The parties were instructed to appear before the District Judge on 10.03.2025 for resumption of the proceedings.
5. If biological testing demonstrates that Esha Bibi/Rani is, in fact, the petitioner’s biological offspring, then he (the petitioner) will incur a legal obligation to provide maintenance for her upkeep.
ANALYSIS OF LEGAL & SOCIAL INFLUENCE
The case bears considerable social and legal consequences with respect to the boundaries set for the rights of illegitimate children, as well as the involvement of Family Courts in such matters.
1. Reaffirmation of Family Courts’ Jurisdiction:
The court confirmed that Family Courts also have jurisdiction on maintenance matters even in cases where paternity is allegedly disputed. The court holds jurisdiction for the award of maintenance only after conclusive biological parentage is established through applicable legal processes.
2. Acknowledgment of ‘precondition’ clause from Paternity Establishment:
The court maintained that in the matter of disputed paternity issues, relevant scientific proof such as DNA testing must be given appropriate weight. The court also maintained that the obligation to provide maintenance only arises after the relationship is conclusively established.
3. Child support calls for legal and Islamic elements particularly on the cover of children born out of wedlock:
The case pointed out the Islamic and modern law divide as they seek to tender legal support towards children bearing out of the wedlock. Otherwise, legal Islam as per the escorts tradition does not concede a right of claiming inheritance or even a father to a child ascribed without legitimacy but the court acknowledged bearing the law in supporting children of nationally and contemporarily forailing supportive law.
4. Possible Effects on Future Maintenance Cases:
This ruling created a manifesto that warrants, in instances of contested paternity, an evidentiary exploration prior to granting maintenance on the father’s behalf. It safeguards against imposing fiscal responsibility on a presumed father without sufficient evidence of paternity and ensures justice within the family law conflicts.
5. Social & Humanitarian Aspects:
The ruling determines the legal limitations placed on individuals while also showcasing their humanitarian concerns. On one side, there is no wrongfully unsubstantiated cap on maintenance prenup agreements contingent on alleged fatherhood, while on the other, fathers cannot remove themselves from responsibility once legal fatherhood is determined.
CRITICAL ANALYSIS
The Lahore High Court’s ruling in Muhammad Afzal vs. Judge Family Court is perhaps the first case combining religious evidence, law, and law evidence unanimously converging on one paternity case concerning a child stemming out of wedlock, and formulating maintenance rights illustrating meticulous attention to each relevance. With such decisions, there are accompanying principles of law supporting every decision made, which by my judgment provides a more thorough analysis and is more dispensible of the over reliance required in rationalize the weaknesses identified within the ruling until more thorough examination surfaces.
The hardest, or at least the most appealable, approach to the matter reasoning where all conclusions lead to a singular direction formulates an inappropriate tone is, oddly, claiming procedural injustice which is strikingly effective in the absence of reasoning leaning, it somehow permeates everything around it. The responsibility capturing seemingly wrong claims where paradoxes in accountability to the debtor claiming wraps around incomplete capturing subsets to the obligation to pay arise captures sets to the scope shifts creating attacher method phenomena evolving into resolving conflicts where above finding is confined gets captured an controlled obliteration of the father.
This will also avoid unjust maintenances filed and recognizes the person from unverified legal obligations. The court recognized that modern scientific means (like DNA testing), allow accurate and reliable determination of paternity. This carries a progressive note, as courts in Pakistan have in the past demonstrated dependence on traditional legal assumptions at times, and ignoring scientific evidence. The decision re-enforces that scientific evidence is to be considered in contested paternity cases. Besides, “In Islam, a child’s status can be determined through a series of ways. First form of cohabitation is the legal marriage or Fasid marriage between the two parents.
Second, through Syubhah intercourse. The third is a father’s recognition that a child is his biological child. Forth, evidence by two fair male witnesses. The fifth, Qiyafah, is the recognition by specialists who specialized in defining the descent based on physical characters and resemblance. The sixth is through Deoxyribonucleic Acid or DNA tests on blood, hair, bone and sliva samples. The other mode is in laboratory testing which has 99.99% accuracy on descent estimation and also to identify hereditary genealogy for hereditary inheritance. All the mentioned above methods are based on ‘Hadiath of the prophet”.
The decision offers a clear interpretation of the said section of the West Pakistan Family Courts Act, 1964 which was subsequently promulgated. Furthermore, earlier, the provision regarding maintenance of a child was incorporated under sections 488-490 of the Code of criminal procedure, 1898 (Cr. P.C.) which was also omitted by presidential order. Finally, in Muslim Family Laws Ordinance, 1961, was introduced. Section 9 under the foregoing Ordinance addresses the issue of maintenance. Reaffirm the fact that Family Courts have sole jurisdiction in matters to do with maintenance. “This Court has no hesitation in holding that although the Act specifically uses the words “family affairs and marriage,” broadly speaking, the Act can be said to cover cases which pertain to maintenance of children, which include issues of biological paternity. Therefore, the Family Court has the power to determine the issues in hand”.
The court also took into account the issue of humanitarianism while making reference to legal technicalities. Although it did not choose to eliminate the possibility of allowance for illegitimate children, it associated the duty to pay with verified biological connections. This will ensure that proper cases are not dismissed hence the maintenance laws are not abused. The judgment took a progressive approach by referring to the Bangladesh, India and Pakistani rules on maintenance in cases of children born out of wedlock. This comparative analysis enhances the reasoning and ensures alignment of Pakistani law with the trends of global law.
The ruling is an effort to address the gulf existing between Islamic law and current standard of law. It recognizes the view of Council of Islamic Ideology that fathers should also contribute to a child’s upkeep and share the burden with female counter-part in illegitimacy. “It would be very strange to lay it down that only the adulteress is to carry the weight of the child while the law refuses to put the equally guilty party (the adulterer) behind mesh dealings especially in respect of the maintenance of the child(ren) though he was at least an equal partner in the sexual enjoyments and in the conception of the unwanted child. This is not prohibited from Shari’ah. In my opinion, 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. ’
FINAL REMARKS
In general, the judgment represents a well-considered, balanced decision that provides an equal opportunity even to both parties concerning the complicated legal case. The ruling ensures that in all cases of contested paternity and maintenance obligations, Family Courts adopt a structured approach. Going into the future, this determination will probably influence the law of child maintenance in Pakistan based on future jurisprudence especially in situations where there is an allegation of rape or an illegitimate birth.
REFERENCES
- Section 17-A of the Family Courts Act states that the suit for maintenance should be filed by the guardian of the minor. The suit shall contain all material facts relating to the maintenance. When litigation starts, the Family Court may fix interim monthly maintenance for a wife or a child on the date of the first appearance of the defendant. If the defendant fails to pay the maintenance by the fourteenth day of each month, his defence is considered struck off, and the family court shall decree the suit for maintenance on the basis of the contents of the plaint and other supporting documents on record of the case. ↩︎
- 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 “(AL BAKARAH:233) ↩︎
- Mulla D.F., Principles of Mahomedan Law (1 edn, Bombay Thacker 1905) 80 ↩︎
- (PLD 2011 Lahore 423), ↩︎
- (62 A.S.C. 93) ↩︎
- “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.” ↩︎ - Sections 488-490 of the Criminal Procedure Code 1898 made it the obligation of the putative father to maintain his legitimate as well as illegitimate children. This position was considered against Islamic law, and hence, these sections were repealed in Pakistan in 1981. In 2002, an amendment was made in the Family Courts Act 1964, and some rules relating to a child’s right to maintenance were formulated.
Section 488: “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.” ↩︎ - (PLD 1995 SC 633) ↩︎
- (PLD 2012 SC 66) ↩︎
- 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 up to 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.” ↩︎
- Section 144 of the “Bharatiya Nagarik Suraksha Sanhita” ↩︎
- (PLD 2012 SC 66) ↩︎
