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Civil Revision No. 1912 of 1980, decided on 16th December, 1981.

‑‑ S. 112‑Legitimacy, proof of on basis of suits filed by husband and wife, respectively for restitution of conjugal rights and dissolution of marriage, chances of meeting together of spouses not ruled out- Husband remaining under treatment for two days‑Opportunity of reconciliation and valid retirement of spouses also existing‑Birth of child within a period of less than seven months of death of father in circumstances, held, gave an irresistible presumption of son being born out of a valid wedlock.

----S. 115‑Revision‑Concurrent findings of fact‑Whether M son of I‑A question of fact‑Such question concurrently decided against petitioners‑No material misreading of evidence‑Concurrent finding of fact not interfered with in circumstances of case.‑[Question of fact].

Abdur Rahman Cheema and Muhammad Abdullah for Petitioners.

Abdul Majid Khan for Respondents.

Date of hearing : 16th December, 1981.

This revision petition calls in question the judgment and decree dated 1‑11‑1980 whereby the learned District Judge, Sialkot dismissed the appeal and maintained the decree of the trial Court dated 22‑5‑1978.

2. To show that Mushtaq respondent No. 1 was not the legitimate son of 11yas deceased, the petitioners Mst. Safia Bibi, Razia Bibi and Begum Bibi filed a suit for declaration which was dismissed. They asserted in their suit that Ilyas their. predecessor‑in‑interest had in the year 1968 married Mst. Niamat Bibi, but they could not live together for more than 3 days, with the result that Mst. Niamat Bibi left his house and settled at Sheikhupura where she filed a suit for dissolution of marriage and Ilyas also instituted one for restitution of conjugal‑ rights at Narowal. The suit of Mst. Niamat Bibi was dismissed in default on 23‑12‑1972 while the one for restitution of conjugal rights remained pending till Ilyas died on 27‑6‑1974. It was asserted that the spouses having strained relations bad no access to each other, and the birth of Mushtaq on l 1‑1‑1975 was not the result of their Union. It was prayed that he be declared to be not the legitimate son of Ilyas. The pleas were controverted and after recording evidence led by the parties the trial Court was of the view that Mushtaq was born out of the valid marriage of Mst. Niamat Bibi with Ilyas. The suit was dismissed and the learned District Judge also formed the same view and dismissed the appeal.

3. It is not disputed that Ilyas had married Mst. Niamat Bibi in the year 1968, but on the basis of the two suits, one filed by Mst. Niamat Bib' for dissolution of marriage and the other by Ilyas for restitution of conjugal rights, it cannot be said with certainty that both the husband and wife had no chance of meeting together. It appears that the suit for dissolution of marriage was dismissed on 23‑12‑1972 for default of the wife Mst. Niamat Bibi and there is no evidence on record that after the said dat Ilyas had ever been serious in persuing his case. His suit continued being adjourned at the request of his counsel for some time and ultimately it was found having become infructuous on account of his death. Ilyas, as it appears from the record, remained under treatment for two days only an none could say with confidence that the spouses did not have an opportunity of reconciliation and of valid retirement. That being the position, the birth of Mushtaq within a period of less than seven months of the death of Ilyas gave an irresistible presumption that it was out of a valid wedlock. The statement of Mst. Niamat Bibi as D. W. 4, giving the account of how both the husband and wife compromised and she was allowed to live with Ilyas as his wife till his death, stood the test of cross‑examination and has been believed by the two Courts below. There is no reason why it should not be relied upon in all respects. It is, therefore, proved that Mst. Niamat Bibi lived with her husband till his death and that Mushtaq is his legitimate son. The question whether Mushtaq is the son of Ilyas is one of fact which ha concurrently been decided against the petitioners, and no material misreading having been made out, the findings of fact cannot be interfered with.

For the foregoing reasons there is no merit in the revision petition and the same is dismissed with costs throughout.

K. M. A. Petition dismissed.

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