2008 SCMR 1707

CIVIL PETITION FOR LEAVE TO APPEAL NO. 711-L OF 2008,

PARTIES: Sharafat Ali Ashraf Petitioner Versus Additional District Judge, Bahawalpur, And
3 Others (Respondents)
FACTS: The facts collected from the record of the case stated are, that petitioner married Mst.
Fazal Elahi alias Saira on 18-12-2004. At the time of Nikah, the cash amount of Rs. 15,00,000 or
a residential house and gold ornaments, weighing 25 Tolas were fixed as dower. The amount of
Haqq mehr was stated in the Nikahnama. After some time, the petitioner executed second
marriage due to which relations between the petitioner and his first wife became tense.
Resultantly, in December 2005 the petitioner expelled his first wife (Saira) from his house on
account of which she file suits for recovery of the dower and maintenance. On the same
Petitioner also filed a suit for the jactitation of marriage. All these suits were consolidated.

On-11-9-2006 respondent No.3 (Saira) gave birth to a child namely, Anamta. After that, an
amended plaint was filed by respondent No.3 making the minor the party requesting maintenance
allowance of the minor.

After framing necessary issues and considering the evidence on record, learned Judge, Family
Court, Bahawalpur, consolidated judgment on 1-11-2007 allowing suit for maintenance of both
the respondents (Saira and Anamta) fixing Rs.1,000 per month each as maintenance allowance
with an increase at the rate of 10% per annum. Suit for recovery of dower was also allowed as
prayed, whereas suit of the petitioner for jactitation of marriage was dismissed. On this, the
petitioner filed an appeal which was dismissed by learned Additional District Judge, Bahawalpur
on 12-3-2008. The petitioner challenged the judgment and decree by filing a writ petition before
the learned Lahore High Court, Lahore, which is stated below.

The petitioner challenged the legitimacy of the child born to respondent no:3 and also prayed for
the DNA test in the said writ petition.

JUDGMENT: the court held that Mst Fazal Elahi (Saira) is the legally wedded wife of the
petitioner and thus Anamta is born out of that wedlock. The paternity of the child is found out as
the rule of substantive law that the child born during the continuance of valid marriage not earlier
than the expiration of six lunar months from the date of such marriage or within two years after
the dissolution of marriage shall be the conclusive proof that the child born so is the legitimate
child of the spouses. Evidently, the child is being disowned by the petitioner with the sole object
and intention of avoiding the liability to maintain the child.

The application for DNA test was only made to make the respondent's suffering last longer. It is
important to note that while respondent No. 3 expressed her willingness to submit the minor to a
D.N.A. test during the trial, the petitioner chose not to do so for obvious reasons.

Thus the petition is devoid of force. The same is dismissed and leave refused.