لے پالک بچہ حقیقی شمار ہوگا جب تک لکھوانے والا باپ اس کو خود چیلنج نہ کر دے دیگر کوئی رشتہ دار اس کو چیلنج نہیں کر سکتا

 PLD 2019 S.C 449
July 9, 2021admincase laws, citation
Legitimacy of Adopted child can be challenged only by Father and not by his siblings.
P L D 2019 Supreme Court 449
Present: Mushir Alam and Qazi Faez Isa, JJ
Mst. LAILA QAYYUM—Petitioner/Applicant
Versus
FAWAD QAYUM and others—Respondents
Civil Petition No.4876 of 2018 and Civil Miscellaneous Application
No.11213 of 2018.
(On appeal against the judgment dated 5-10-2018 of the Peshawar High
Coiurt, Mingora Bench (Dar-ul-Qaza), Swat, passed in W.P. No.215-M of
2017).

(a) Specific Relief Act (I of 1877)—

—-S. 42—Suit for declaration—Maintainability—Legal character of

plaintiff—Scope—Dispute over paternity—Plaintiff filed suit seeking

directions that the defendant-lady was not his real sister but was

adopted by his parents; and that the defendant had no right to his

parent’s legacy—Held, that court could make a declaration in a suit in

favour of a person who was entitled to any legal character or to any

right, as to any property, which another was denying—Defendant had

not denied either plaintiff’s legal character or his right to any

property—Instead plaintiff alleged that defendant was not his father’s

daughter and therefore not his heir and not entitled to inherit the

properties left behind by him—Plaintiff sought a negative declaration

and one which had nothing to do with his own legal character—To

challenge another’s adoption or legitimacy of birth did not assert the

plaintiff’s own legal character—Suit filed by plaintiff was dismissed by

the Supreme Court

Deokali Koer v. Kedar Nath ILR 39 Cal. 704, 709; Khanchand v.

Jacobabad Municipality AIR 1946 Sindh 98; Abdur Rahman Bhuiya v.

Commission of Narayanganj Manicipality PLD 1959 Dacca 5; Abdur

Rahman Mobashir v. Amir Ali Shah PLD 1978 Lah. 113; Rehmatullah

Khan v. Government of Pakistan 2003 SCMR 50 and Daw Pone v. Ma

Hnin May AIR 1941 Rangoon 220, 221 ref

(b) Specific Relief Act (I of 1877)—

—-S. 42—Suit for declaration—Maintainability—Dispute over paternity

— Person could bring a (declaratory) suit to assert that he/she was

someone’s child if his/her legal character was denied.

Abdul Karim v. Sarraya Begum AIR 1945 Lah. 266 ref.

(c) Specific Relief Act (I of 1877)—

S. 39—Suit for cancellation of documents—Maintainability—

Requirement of ‘serious injury’ to plaintiff—Dispute over paternity—

Plaintiff filed suit seeking directions that the defendant-lady was not

his real sister but was adopted by his parents; and that all documents

showing the defendant to be the daughter of his parents be cancelled

to such extent—Held, that plaintiff sought cancellation of documents

which were not shown to cause him any serious injury—Since the

essential condition of causing him serious injury, mentioned in S. 39 of

the Specific Relief Act, 1877 was not met, therefore plaintiff’s suit

seeking cancellation of the documents was not maintainable—Suit

filed by plaintiff was dismissed by the Supreme Court.

(d) Qanun-e-Shahadat (10 of 1984)—

—-Art. 128—Specific Relief Act (I of 1877), S. 42—Suit for declaration—

Dispute over paternity—Bar of Art. 128 of Qanun-e-Shahadat, 1984—

Scope—Plaintiff filed a declaratory suit seeking directions that the

defendant-lady was not his real sister but was adopted by his parents–

-Maintainability—Suit was barred by Art.128 of the Qanun-e-Shahadat,

1984—Only a putative father, within the time prescribed in Art.128,

may challenge the paternity of a child—Father of the parties had never

challenged defendant’s paternity—Article 128 of the Qanun-e-

Shahadat, 1984 did not permit a putative brother to challenge his

sister’s paternity—Suit filed by plaintiff was dismissed by the Supreme

Court.

Ghazala Tehsin Zohra v.Ghulam Dastagir Khan PLD 2015 SC 327 ref.

(e) Constitution of Pakistan—

—-Art. 14—Liberty, dignity and privacy of a person—Scope—Dispute over

paternity—DNA test, conducting of—Constitutionality and legality—Plaintiff filed

a suit seeking directions that the defendant-lady was not his real sister but was

adopted by his parents—During pendency of suit plaintiff also filed an application

for conducting DNA test of the defendant to determine that she was not his real

sister—Said application was allowed by the High Court—Held, that a free lady

could not be compelled to give a sample for DNA testing as it would violate her

liberty—If a sample was forcibly taken from the defendant in the present case to

determine her paternity it would violate her liberty, dignity and privacy which

Art.14 of the Constitution guaranteed to a free person—If the proposed DNA

testing was done it would neither confirm nor negate defendant’s paternity—Same

was also true for the plaintiff and those of his siblings whom he acknowledged—

Father of the parties died sixteen years ago and his DNA could now only be

accessed if his body was disinterred from the grave and a sample taken from his

remains—Plaintiff’s suit however was premised on the assumption that he was the

son of his father, then, on the basis of such assumption, he denied defendant’s

paternity—Plaintiff’s assertion that a certain person was his father was equally

assumptive to the defendant asserting this—Suit filed by plaintiff was dismissed by

the Supreme Court.

Salman Akram Raja v Government of Punjab 2013 SCMR 203 ref.

Muhammad Shahid Sahil v State PLD 2015 FSC 215 and B. P. Jena v Convenor

Secretary, Orissa State Commission for Women (AIR 2010 Supreme Court 2851)

distinguished.

Muhammad Ikhlaque Awan, Advocate Supreme Court and Syed Rifaqat Hussain

Shah, Advocate-on-Record for Petitioner/Appellant.

Faisal Khan, Advocate Supreme Court for Respondents Nos.1 to 5.

Shaukat Hayat, Senior Clerk for Respondent No.6.

Mujahid Khan, Law Officer for Respondent No.10.

Date of hearing: 14th February, 2019.

JUDGMENT

Qazi Faez Isa, J. Fawad Qayum (respondent No. 1, “Fawad”) filed a suit against

Mst. Laila Qayum (“Laila”), alleging that Laila was “an abandoned infant in a local

hospital” and was adopted by his father, late Abdul Qayum, and mother, Nasreen

Begum, in the year 1996 and was brought up as their own daughter. The fact of

adoption was however concealed from Laila and she was made to believe that she

is the (real) daughter of Abdul Qayum and Nasreen Begum, Fawad further alleged.

In his suit Fawad sought two declarations; firstly, that Laila was not the real

daughter of Abdul Qayum and Nasreen Begum and, secondly, that Laila has no

right to their “legacy”. He also prayed that the documents showing Laila to be the

daughter of Abdul Qayum be cancelled to such extent. These documents were

issued by the Government Girls School, Saidu Sharif, Swat, the Government Girls

Degree College, Saidu Sharif, the Board of Intermediate and Secondary Education,

Saidu Sharif, Swat, the Office of the Deputy Commissioner, Swat and the National

Database and Registration Authority (“NADRA”) (respectively arrayed as

defendants Nos. 6 to 10 in the suit). The suit was filed on 19th June, 2015 when

Laila was nineteen years old. Laila filed her written statement and denied Fawad’s

allegations.

The suit was pending when Fawad filed an application (“the application”)

seeking a deoxyribonucleic acid (“DNA”) test to be conducted and Laila’s DNA be

compared with that of Fawad’s, the DNA of his siblings (defendants Nos. 3 to 5 in

the suit) and with that of his mother (Nasreen Begum) to determine whether Laila is

the daughter of Abdul Qayum. The application did not, as per procedural

requirement, cite any provision of law whereunder it was submitted. The learned

Trial Judge allowed the application on 9th February, 2017. However, his order was

set aside by the learned Appellate Court Judge vide judgment dated 15th March,

2017, which was challenged by Fawad in a writ petition before the Peshawar High

Court, Mingora Bench (Dar-ul-Qaza), Peshawar. The High Court set aside the

judgment of the Appellate Court and restored the order of the Trial Court, which

had directed that the DNA test be carried out.

Mr. Muhammad Ikhlaque Awan, the learned counsel representing Laila, states

that Laila was brought up by Abdul Qayum and Nasreen Begum as their daughter

and all records, including those prepared on the basis of information provided by

Abdul Qayum and Nasreen Begum, show Laila to be Abdul Qayum’s daughter. He

challenged Fawad’s locus standi to question Laila’s paternity and contends that the

suit filed by him was not maintainable under sections 39 and 42 of the Specific

Relief Act, 1877. He also refers to Article 128 of the Qanun-e-Shahadat Order,

1984 and the cases of Ghazala Tehsin Zohra v Ghulam Dastagir Khan

1 and Salman

Akram Raja v Government of Punjab

2 and submits that the same were not followed

for contrived reasons by the learned Judge of the High Court. Concluding his

submissions the learned counsel states that it is no longer possible to take Abdul

Qayum’s DNA for comparison with Laila’s, therefore her paternity cannot be

challenged.

On the other hand Mr. Faisal Khan, the learned counsel representing the

respondents Nos. 1 to 5, supports the impugned Judgment and states that Fawad’s

claim was supported by Nasreen Begum, who was initially arrayed as defendant

No. 2 but was later transposed as plaintiff No. 2 in the suit. Therefore, a case for

conducting DNA tests was made out. Learned Mr. Khan relies upon the cases of

Muhammad Shahid Sahil v. State

3 and B. P. Jena v. Convenor Secretary, Orissa

State Commission for Women

4

. Mr. Khan informs us (in response to our queries)

that Abdul Qayum and Nasreen Begum were married in the year 1969 and their

marriage continued till Abdul Qayum died on 25th December, 2002, when Laila

was six years old. Laila was then brought up by Nasreen Begum who continued to

show Laila as the daughter of Abdul Qayum.

The Law Officer of NADRA states that NADRA, as per their applicable

procedure, verified the matriculation certificate / secondary school certificate of

Laila, which was issued long before the filing of the suit. The said certificate

showed Laila as Abdul Qayum’s daughter therefore she was issued with a

computerized national identity card (“CNIC”). The CNIC showed her to be the

daughter of Abdul Qayum and complied with the Family Registration Certification

of Abdul Qayum.

We have heard the learned counsel for the parties, examined sections 39 and

42 of the Specific Relief Act, Article 128 of the Qanun-e-Shahadat Order, the

judgments they have referred to and the documents on record.

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:

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 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 some one who is not in existence, and for whom, if in

existence, he would be a trustee.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.

In the case of Deokali Koer v Kedar Nath

5 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.

6

In Khanchand v Jacobabad Municipality

7 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

8

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

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

9 Aftab Hussain, J

10

identified the type of declarations which could be sought with regard to one’s legal

character and those which could not:

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.

11

A number of cases from the courts of the sub-continent were considered which

led the learned Judges of the Lahore Court to observe and determine, that:

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.

12

… 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.

13

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”:

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.

14

In the case of Rehmatullah Khan v. Government of Pakistan

15 Sardar

Muhammad Raza Khan, J writing for a three-member 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:

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.

16

To challenge another’s adoption or legitimacy of birth does not assert the

plaintff ‘s own legal character. In the case of Daw Pone v. Ma Hnin May

17

the

Court

18 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.

19

However, a person can bring a suit to assert that he/she is someone’s child if

his/her legal character is denied. In Daw Pone v Ma Hnin May the Court had

preserved the adoptee’s right to claim such legal character:

If at any time she desires to make a claim that she is the keittima daughter of

Daw Pone, that is a matter for her and her legal advisers, and we desire to

say nothing which may be put forward in defence of it. Ma Hnin May has

been brought here to appear in answer to this appeal and we think she ought

to have her costs, two gold mohurs, for her appearance; and the appeal is

dismissed.

20

A Full Bench of the Lahore High Court in the case of Abdul Karim v Sarraya

Begum21 held that the suit claiming the plaintiff to be the legitimate daughter of

Abdul Karim (defendant) was maintainable even though the plaintiff had no present

interest in the property of the defendant:

…the declaration of the legitimacy of a child of a muslim governed by the

Mahomedan law certainly does not confer on such child any present interest

in the property held by the father. It, however, does confer on the child the

right to succeed to the father in case the latter predeceases the child and dies

intestate. Even in case of testacy the child will have the right to succeed to

his or her legal share in the estate left by him except to the extent of onethird. During his or her minority the child has a legal right to be maintained

by the father. He or she may have a right of pre-emption in respect of any

sale of agricultural land made by the father. The declaration of legitimacy

thus carries with itself very important legal incidents and it cannot be

seriously contended that a declaration of legitimacy does not amount to a

declaration of a legal character.

22

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:

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.

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.

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.

In the case of Ghazala Tehsin Zohra

23

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”

25

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-eShahadat 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

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.

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. We

also award costs throughout, to be paid by the respondent No. 1 to the petitioner.

Copy of this judgment be sent to the Trial Court. Copy be also sent to the Registrar,

Peshawar High Court, for placing it before the learned Judge who had passed the

impugned Judgment.

Accordingly, we set aside the impugned judgment, convert this petition into

an appeal and allow the same in the aforesaid terms. C. M. A. No. 11213/2018

stands disposed of as being infructuous.