Mst. Shagufta vs Abdul Hafeez S — 2026 YLR 1308 KARACHI-HIGH-COURT-SINDH

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Mst. Shagufta VS Abdul Hafeez S.491---Qanun-e-Shahadat (10 of 1984), Art. 128---Birth during marriage conclusive proof of legitimacy---DNA test of minor daughter---Custody of minors---Petitioner was aggrieved of handing over the custody of her minor daughter to respondent whereas minor was born from the wedlock of applicant and her first husband---Respondent claimed that said minor was the firstborn of the applicant and the respondent---Validity---Paternity of minor daughter “R” had not been challenged by respondent no.1 since her birth---Article 128 of the Qanun-e-Shahadat Order, 1984, stated that where a child was born during the continuance of a valid marriage between his mother and any man and not earlier than the expiration of six lunar months from the date of the marriage or within two years after its dissolution, while the mother remained unmarried, it shall be the conclusive proof that she/he was the legitimate child of that man---In the present case, “R” was born in the year 2020, when the applicant was married to her first husband, “MA”--- Thus, “R” was born more than 12 months before her biological mother's second marriage with the respondent No. 1.---Paternity of a child born in lawful wedlock carried the presumption of truth as it could not be refuted by simple denial---Law tends to favour the presumption of paternity over that of illegitimacy---Accordingly, a child born during wedlock had the father's parentage---There was no need for an express acknowledgement or an affirmation---Legitimacy of a child could not be questioned merely because of the father's claim without any evidence to substantiate the same---In the circumstances brought on record, respondent could not question the paternity of “R” by asking for aDNA test after more than 5 years of her birth and, that too before this bench, exercising jurisdiction under S.561, Cr.P.C.---Suffice to say that entire matter might require resolution before the proper forum, which this Bench was not---Based on the material available, and looking at the welfare of the child, the tentative provisional view of this Bench was that, five years old, “R”, was the applicant's daughter born during her wedlock with her first husband, “MA”---Earlier, the Bench also ordered respondent No.1 to submit his NADRA-verified FRC to show that he was the father of “R”, but he had not submitted it---Yet, at the time, respondent confirmed to the Bench that “R” was five years old---Therefore, until the proper forum finally decided “R”'s paternity, “R”'s custody shall remain with her biological mother, and she could not reside with the present husband of the applicant, respondent No. 1, “AH”.

Mst. Shagufta vs Abdul Hafeez S — 2026 YLR 1308 KARACHI-HIGH-COURT-SINDH

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