Benish Ghaffar vs Additional District Judge S — 2026 MLD 507 LAHORE-HIGH-COURT-LAHORE

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Benish Ghaffar VS Additional District Judge S.5, Sched.---Suit for recovery of maintenance allowance, dower and dowry articles---Non-consummation of marriage, plea of---Paternity, denial of---DNA test, request for---Legitimacy of a child born during subsistence of marriage, presumption of---Scope---Constitutional petition filed after 23 months but connected petitions filed promptly---Effect---Laches, non-applicability of---Facts:---The petitioner/wife filed a suit against the respondent/husband for maintenance, dower and dowry; the respondent/husband filed acounter-suit for jactitation of marriage; the family court dismissed suit of husband, but on the view that consummation was not proved, awarded only 50% dower and declined maintenance/dowry; the appellate court upheld this decision; later, the parties reconciled and cohabited and a minor was born, and the petitioner filed the minor's maintenance suit against the minor's father and the grandfather; the family court refused DNA testing and fixed minor's maintenance at Rs.5,000 per month with 10% annual increase---Issue:---"Whether, after a registered nikah stood proved (and a child is born during its subsistence), denial of the petitioner's matrimonial claims on "non-consummation" and reopening issue of paternity through seeking DNA testing was justified?"---Held: At the outset, it was noted that the petitioner instituted her constitutional petition against the impugned judgment after a delay of more than 23 months and as such, was badly hit by laches, however, when a common question of law being decided in one case, another case involving the same point that was time barred was liable to be heard on merits---Petitioner approached the High Court though belatedly yet during the pendency of petition of respondent No.1 and assailed the same judgments and decrees in the wake of subsequent developments including birth of the minor and as such, delay on account of laches was condoned as the same did not cause any prejudice to respondent No.1---Petitioner successfully proved her marriage including consummation of marriage---The issue of non-consummation of marriage lost its relevance after the birth of the minor during subsistence of valid and proven 'nikah', hence, the family as well as the appellate court fellin error to award half dower and dismiss the claims of dowry and maintenance due to love and non-consummation of marriage---Petitioner could not lead substantive evidence as to her claim of gold as dowry articles, whereas, other articles such that were normally given to a bride as part of her dowry, by applying reasonable depreciation due to subsistence of marriage, the petitioner was held entitled to recover her dowry articles to the tune of Rs.200,000/- as alternative value of dowry articles---Adjusting four months of post-reconciliation period from the claimed period of maintenance, the petitioner was held entitled to receive maintenance at the rate of Rs. 15,000/- per month from the date of institution of the suit with 10% annual increase till her legal entitlement---Application of the respondent/husband for conducting DNA test was rightly turned down since it was trite law that a child born during the subsistence of a valid marriage was presumed legitimate and the mode of determining paternity through DNA test had been deprecated by the Supreme Court---Suit of the petitioner/wife was decreed and judgments and decrees of the courts below were modified---Constitutional petition was partly allowed, in circumstances.

Benish Ghaffar vs Additional District Judge S — 2026 MLD 507 LAHORE-HIGH-COURT-LAHORE

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