12. Admittedly, the minor born during the
subsistence of marriage and this proposition has
already been dealt with by the Hon'ble Supreme
Court of Pakistan in a judgment cited as “Ghazala
Tehsin Zohra versus Mehr Ghulam Dastagir” (PLD
2015 SC 327), wherein it has been observed that:-
“We first of all, take up for comment the
provisions of Article 128 ibid. The Article is
couched in language which is protective of
societal cohisn and the values of the community.
This appears to be the rationale for stipulating
affirmatively that a child who is born within two
years after the dissolution of the marriage
between his parents (the mother remaining
unmarried) shall constitute conclusive proof of
his legitimacy. Otherwise, neither the classical
Islamic jurists nor the farmers of the Qanun-eShahadat Order could have been oblivious of
the scientific fact that the normal period of
gestation of the human foetus is around nine
months. That they then extended the
presumption of legitimacy to two years, in spite
of this knowledge, directly points towards the
legislative intent as well as the societal
imperative of avoiding controversy in matters of
paternity. It is in this context that at first glance,
clause 1(a) of Article 128 appears to pose a
difficulty. It may be noted that classical Islamic
Law, which is the inspiration behind the Qanune-Shahadat Order (though not incorporated
fully) and was referred to by learned counsel for
the appellant also adheres to the same rationale
and is driven by the same societal imperative. In
this regard, it is also worth taking time to reflect
on the belief in our tradition that on the Day of Judgment, the children of Adam will be called
out by their mother’s name. It shows that the
Divine Being has, in His infinite wisdom and
mercy, taken care to ensure that even on a day
when all personal secrets shall be laid bare the
secrets about paternity shall not delved into or
diverged.”
Part Of Judgment
Lahore High Court
WP- Family Law
9891-16
2016 LHC 911
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