Paternity of child 𝚌𝚊𝚗 𝚗𝚘𝚝 𝚋𝚎 𝚚𝚞𝚎𝚜𝚝𝚒𝚘𝚗𝚎𝚍 𝚊𝚏𝚝𝚎𝚛 𝚍𝚎𝚊𝚝𝚑 𝚘𝚏 𝚏𝚊𝚝𝚑𝚎𝚛 ---

2023 S C M R 6
[Supreme Court of Pakistan]
Present: Qazi Faez Isa, Yahya Afridi and Jamal Khan Mandokhail, JJ
MUNIR HUSSAIN and others---Applicants
Versus
RIFFAT SHAMIM and others---Respondents
Civil Miscellaneous Application No. 3492 of 2022 in Civil Petition No. Nil of 2022, decided on 14th November, 2022.
(On appeal against the judgment dated 12.04.2022 passed by the Islamabad High Court, Islamabad, in W. P. No. 213 of 2022)

(a) Specific Relief Act (I of 1877)---

----S. 42---Paternity of child---Suit for declaration challenging paternity of a child---Suit was filed about seven months after the death of the child's father "AH" and at a time when the child was aged about 17 years---Admittedly child was brought up by "AH" and his wife (the respondent) as their daughter and as long as "AH" lived, the child's paternity was not questioned by the plaintiffs/petitioners who, for the first time, did so after the father, "AH" had departed from this world--- Respondent/mother testified that the child was her and "AH's" daughter---Petition for leave to appeal and application were dismissed.

(b) Specific Relief Act (I of 1877)---

----S. 42--- Paternity of child---Suit for declaration challenging paternity of a child---Maintainability---Through their declaratory suit the plaintiffs/petitioners sought a negative declaration to the effect that the child in question was not the daughter of "AH" but of "MZ"---To challenge another's paternity/legitimacy is not an assertion of one's own legal character in terms of section 42 of the Specific Relief Act, 1877---However, a person whose legal character, including paternity, was being denied such person could file a suit to claim it, but the present case was not such a case---Plaintiffs lacked legal character under section 42 of the Specific Relief Act, 1877---Petition for leave to appeal and application were dismissed.

Laila Qayyum v. Fawad Qayum PLD 2019 SC 449 ref.

Ch. Afrasiab Khan, Advocate Supreme Court for Applicants.

Nemo for the Respondents.

Date of hearing: 14th November, 2022.

ORDER

Qazi Faez Isa, J.---

C.M.A. No. 3492/2022: Through this application the petitioners seek permission to array Tuba Sahab (respondent No. 2) as the daughter of Muhammad Zareef.

2. The petitioners had filed a suit alleging that Tuba Sahab was not the daughter of Azhar Hussain but of Muhammad Zareef. However, the learned Judge of the High Court held that Tuba Sahab was in fact the daughter of Azhar Hussain. Nothing much turns on this application as the petition for leave to appeal has been filed within time and the application could only be granted if the impugned judgment of the High Court was to be set aside. Therefore, even though the petition for leave to appeal has not been numbered we, after the learned counsel said he was ready to proceed with the case on merits, proceeded to hear the petition. The office is directed to number the civil petition for leave to appeal ('CPLA').

3. CPLA No. 3842/2022: The learned counsel for the petitioners states that the petitioners are the siblings of Azhar Hussain who died issueless on 4 June 2013. The learned counsel submits that Azhar Hussain adhered to the Sunni Hanafi fiqh of Islamic Shariah, therefore, if Tuba Sahab is taken to be the daughter of Azhar Hussain then their share in the estate of Azhar Hussain would be significantly reduced. It is admitted that Azhar Hussain was married to Riffat Shamim (respondent No. 1). The case of the petitioners (plaintiffs in the suit) was that Tuba Sahab was actually the daughter of Muhammad Zareef and not of Azhar Hussain. The suit was filed on 29 January 2014, that is, about seven months after the death of Azhar Hussain and at a time when Tuba Sahab was, as per learned counsel, aged about 17 years. Admittedly, Tuba Sahab was brought up by Azhar Hussain and Riffat Shamim as their daughter and as long as Azhar Hussain lived her paternity was not questioned by the petitioners who, for the first time, did so after the father, Azhar Hussain, had departed from this world. The mother (respondent No. 1) testified that Tuba Sahab was her and Azhar Hussain's daughter.

4. The learned Judge of the High Court had referred to a number of decisions including the decision in the case of Laila Qayyum v. Fawad Qayum (PLD 2019 Supreme Court 449) which had considered in detail the scope of a declaratory suit filed under section 42 of the Specific Relief Act, 1877 and like in that case the paternity of another was denied by the plaintiffs. In other words the plaintiffs (petitioners herein) through their suit sought a negative declaration. After considering the scope of the said section 42 and precedents this Court held in Laila Qayyum's case that to challenge another's paternity/legitimacy was not an assertion of one's own legal character in terms of section 42. However, a person whose legal character, including paternity, was being denied such person could file a suit to claim it, but the instant case is not such a case. In Laila Qayyum's case the plaintiffs lacked legal character under section 42 of the Specific Relief Act, 1877, and the same principle is attracted in this case. The learned counsel has also not been able to distinguish the decision in Laila Qayyum's case from the instant one.

5. In the impugned judgment the learned Judge had correctly applied the law, which had been interpreted in the case of Laila Qayyum. Therefore, to grant leave is not warranted and, consequently, the petition (numbered as CPLA No. 3842/2022) and C.M.A. No. 3492/2022 are dismissed, but with no order as to costs as caveat was not filed by any respondent. Copy of this order be sent to respondents Nos. 1 and 2.

MWA/M-72/SC