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Criminal, Reference' No 157 of 1950, decided on 2nd January 1951, from the case reported by K. B. Malik Saadullah Khan, Additional Sessions Judge, Peshawar with his‑No. 1208 dated 29th July,‑ 1950.

----- S. 112‑Child born during continuance of, marriage or within 280 days after‑ dissolution ---Conclusive proof of legitimacy‑Father may prove that he had no access to wife.

Under section 112 of the Evidence Act if a person wants to prove that he is not the father of a child, he must establish that he had no access to the wife. Once it is proved that he had access to his wife, the fact that his wife was a woman of bad character and that she was accessible to other people too is no ground to hold that the child born during the continuance of the marriage, or within 280 days after its dissolution is not that person's child.,

Abdul Latif for petitioner.

Arbab Sikandar Khan, for Respondent.

Mst. Zohra Begum, the mother of Mst. Bibi Aisha, was married to Taza Gul on the 29th of March 1948. They lived as husband and wife until the 25th of November 1948, when Mst. Zohra Begum left her husband's house and came to the house of her mother Mst. Bibi Hanifa. A report was made by Abdul Aziz, the husband of Mst. Bibi Hanifa, and the stepfather of Rd. Zohra Begum on the 5th of February 1949, to the effect that Mst. Zohra Begum had been turned out of his house by Taza Gul, that several attempts had been made that Taza Gul should take his wife back to his house but in vain, and that a remedy would be sought for the maintenance of Mst. Zohra Begum in a Court of law.

Sometime in 1949, Mst. Zobra Begum brought a complaint against Taza Gul under section 488 Criminal Procedure Code, demanding from him a maintenance of Rs. 30 per mensem.

Taza Gul appeared in Court on the 2nd of April, 1949, and divorced Mst. Zohra Begum, according to the principles of Muslim Law.

The Court recorded the factum of divorce in its order, and at the same time directed Taza Gul to pay the maintenance of his wife at the rate of Rs. 30 pet mensem for a period of four months and ten days with effect from the 2nd April, 1949.

On 1st July, 1949, Mst. Zohra Begum gave birth to a female child who was named Bibi Aisha. On the 13th of October 1949, Mst. Zohra Begum brought a second complaint against her ex -husband Taza Gul under section 488 Criminal Procedure Code, demanding from him the maintenance of Mst Bibi Aisha at the rate of Rs. 30 per mensem.

Taza Gul in his written statement denied that be was the father of Mst. Bibi Aisha, and said that Mst. Zobra Begum was a woman of bad character, and he had on account of that reason turned her out of his house and divorced her more than one year prior to the birth of Mst. Bibi Aisha. He also stated that he was a pauper and was, therefore, unable to pay any maintenance.

The learned trial Magistrate found that Mst. Bibi Aisha was the legitimate daughter of Taza Gul, and he, therefore, was liable to pay the former's maintenance of lost. Zohra Begum at the rate of Rs. 20 per mensem. This maintenance was to be paid continuously till Mst: Zohra Begum remarried.

Against this order both Taza Gul and Mst. Zohra Begum went up on revision to the Court of Sessions at Peshawar. The learned Additional Sessions judge, who heard both the revisions by his order dated 21st July 1950, has sent both the cases up to this Court with the recommendation that the amount of main tenance be reduced from Rs. 20 p. m. to Rs. 10 p. m. and that the condition attached to the payment of the maintenance up .to the time of Mst. Zohra Begum's remarriage be deleted. Notices were issued by me to both Taza Gul and Mst. Zohra Begum. The learned counsel appearing for Taza Gul has once again questioned the legitimacy of the child (Mst. Bibi Aisha) and has contended that it is not proved on the record that she is born of Taza Gul.

It 'is stated in the report made in Nowshera Saddar Police Station by Abdul Aziz, the stepfather of Mst. Zohra Begum, on the 5th of February 1949, that Mst. Zohra Begum had been turned out of Taza Gul's house on the 25th of November 1948, and that she was at that time in the family way. There are several letters placed upon the record which axe admitted by 'raza Gul to have been written by him which clearly go to show that up to the end of November, 1948, Mst. Zohra Begum was living with Taza Gul as his wife. If Mst. Zohra Begum up to the 25th of November, 1948 was living with Taza Gul as his wife, the ordinary presumption is that he must have cohabited with her, and the child born on the 1st of July, 1949, would naturally be born of him. Apart from that under section 112 of the Evidence Act a person born during the continuance of a valid marriage between a couple, or within 280 days after the dissolution of the marriage; the woman remaining unmarried, will be a conclusive proof of the fact that the child was the son or the daughter of that man unless it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten. In this case the divorce was pronounced on the 2nd of April, 1949, and the child born on the 1st of July, 1949, i. e., within 280 days of the dissolution of the marriage, and she should therefore be taken to be the child of Taza Gul. The argument that Mst. Zohra Begum was a woman of bad character, inspite of the fact that it is not established on this record that she was so, is in my opinion irrelevant. Under section 112 of the Evidence Act if a person wants to prove that he is not the father of a child, he must establish that he had no access to the wife. Once it is proved that he had access to his wife, the fact that his wife was a woman of bad character and that she was accessible to other people too is no ground to hold that the child born during the continuance of the marriage, or within 280 days after its dissolution is not that person's child.

Taking all the evidence produced on the record into con sideration I must hold that Mst. Bibi' Aisha is the legitimate child of Taza Gul, and he on account of being her father is liable to pay her maintenance.

The learned counsel for Taza Gul has not argued that the amount of Rs. 20 p. m. awarded as maintenance by the learned trial Magistrate is excessive. The learned Additional Sessions judge while recommending the reduction of this amount to Rs. 10 p. m. has also not given any reason as to why should it be reduced.

Bringing up of a child in these days when the price of every thing has gone up is certainly a very expensive job. Mst. Bibi Aisha is only one year old, and I think that the amount of Rs. 20 p. m. awarded by the learned trial Magistrate is just right. Taza Gul seems to be a man of means. He has got his trade carried on in at least two principal, cities of Pakistan viz. Karachi and Peshawar. Having such an extensive business I think it is perfectly within his means to pay Rs. 20 p. m. to his daughter.

As regards the condition attached by the learned trial Magistrate to the payment of maintenance that it should be paid until Mst. Zohra Begum remarries, the learned counsel for Taza Gul has conceded that it is illegal. The maintenance is meant for the minor gird and not for the minor's mother, and I fail to see as to how could this condition be attached to the payment of maintenance of a child. I consequently order that Taza Gul will be bound to pay maintenance at the rate of Rs. 20 p. m. to Mst. Zohra Begum for the upkeep and bringing up of Mst. Bibi Aisha until Mst. Bibi Aisha is married, or is possessed of such means that she is able to maintain herself without the assistance of her, father.

The order of the learned trial Magistrate is upheld subject to the modification mentioned above. The petitions are decided accordingly. Orders announced.

K. M. A. Order accordingly.

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