Article 128 of QSO.

Birth during marriage----Conclusive proof of legitimacy.----

Application for DNA analysis during a suit for recovery of maintenance allowance.

As per Article 128 of the Qanun-e-Shahadat Order, 1984, a child born to a woman during the subsistence of valid marriage or within two years after its dissolution is conclusive proof of his legitimacy, provided that the woman remains unmarried after the divorce. Said fact was regarded as a „conclusive proof‟ and no evidence could be admitted to refute the same.

Article 2(f)(9) of the Qanun-e-Shahadat Order, 1984, provides that “when one fact is declared by this order to be conclusive proof of another, the Court was, on proof of the one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it”. The stipulation in Article 128 of the Qanun-eShahadat Order, 1984 is that the birth of a child within the period specified in said Article is conclusive proof that he is a legitimate child. Once the relevant facts as to commencement of dissolution of marriage and the date of birth of a child within a period envisioned in Article 128 are proved and the date of birth is within the period specified in Article 128(1), then the Court cannot allow evidence to be given for disproving the legitimacy of a child born within the aforesaid period. Article 128 (1)(a) provides that although birth during continuance of a valid marriage or within two years after its dissolution is a conclusive proof of legitimacy but under certain circumstances the husband can disown the paternity of a child. Now, the question is when the husband can deny the parentage. Stage of such denial is of paramount consideration. Section 02 of the West Pakistan Muslim Personal Law (Shariah) Application Act, 1962 (Act V of 1962) stipulates that "notwithstanding any custom or usage, in all questions regarding ... legitimacy or bastardy ... the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims". Since both parties are Muslims and section 2 aforesaid specifically refers to legitimacy or bastardy, resort must be made to the Muslim Personal Law (Shariat) for the purpose of reconciling what may appear to be conflicting provision of Article 128 of the QSO. 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.

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 defence against scurrilous stigmatization. It is becoming a common practice in our society that whenever a suit for recovery of maintenance allowance is filed against a person he comes forward to the Court and challenges the legitimacy of the child by moving an application requesting for conducting DNA analysis of the child. Ethically, questioning the paternity of a child during a maintenance suit can be seen as a tactic to evade responsibility rather than a legitimate claim based on evidence. It often reflects a desire to avoid financial obligations and may be motivated by personal animosity or financial concerns. Such practice should be discouraged and dealt with an iron hand because encouraging such practices would only serve to erode trust in the family unit and the legal system that is designed to protect the interests of vulnerable children. When a parent questions the legitimacy of the child, it creates an atmosphere of doubt and insecurity. This practice undermines the child‟s sense of identity, dignity, and belonging, which can have long-lasting psychological effects. It is crucial that courts focus on the child's needs and emotional welfare, rather than allowing a parent to challenge paternity without valid justification. The use of DNA tests to challenge paternity, while scientifically valid, should not be viewed as a tool for harassment or delay in matters of child maintenance.