Challengeing another Paternity /LegitimacyU/S 42 of SRA 1877
Ashraf Asmi Advocate
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Challengeing another Paternity /LegitimacyU/S 42 of SRA 1877
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Ashraf Asmi Advocate
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5 723 просмотра · 3 года назад
#adoptedchild #legitimacyofchild
#declaration
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Qazi Faez Isa
Mr. Justice Yahya Afridi
Mr. Justice Jamal Khan Mandokhail
Civil Misc. Application No. 3492/2022 in
Civil Petition No. Nil/2022
(On appeal against the judgment dated 12.04.2022
passed by the Islamabad High Court, Islamabad,
in W. P. No. 213/2022)
Munir Hussain, etc. … Applicants
Versus
Riffat Shamim, etc. … Respondents
For the Applicants/
Petitioners: Ch. Afrasiab Khan, ASC
For the Respondents: N.R.
Date of Hearing: 14.11.2022
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
CMA No. 3492/2022 2
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
CMA No. 3492/2022 3
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 CMA 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 No. 1 and 2.
Judge
Judge
Judge
Islamabad
(Farrukh)
Dated:14.11.2022
Approved for Reporting