KHAN MUHAMMAD vs MUHAMMAD ISHAQUE AND ANOTHER
This matter arises from a petition for leave to appeal against an order of the Lahore High Court, which dismissed the petitioner's revision petition in limine against concurrent findings of lower courts. The petitioner had filed a suit for a declaration that the respondents were not his sons and were illegitimate, despite being born during the subsistence of his marriage to Mst. Kalsum. The trial court and the district judge both dismissed the petitioner's claim, finding the respondents to be his legitimate sons. The High Court declined to interfere under section 115 of the Code of Civil Procedure 1908, holding that the dispute involved a pure question of fact without jurisdictional error. The Supreme Court addressed the core question regarding the conclusiveness of legitimacy under the law during a subsisting valid marriage. The Court held that under Section 112 of the Evidence Act 1872, birth during the continuance of a valid marriage is conclusive proof of legitimacy unless non-access is proven. The petition was dismissed as no question of law or public importance was involved.
- Whether birth during the continuance of a valid marriage serves as conclusive proof of legitimacy under Section 112 of the Evidence Act 1872?
- Can the High Court interfere with concurrent findings of fact in revision under section 115 of the Code of Civil Procedure 1908 where no jurisdictional defect is involved?
- Section 115, Code of Civil Procedure 1908
- Section 112, Evidence Act 1872
1. ' SALAHUDDIN AHMED, J.-The petitioner has been aggrieved by an order of a learned Single Judge of the Lahore High Court dismissing his Revision Petition in limine.
2. ' It appears that the petitioner filed a suit for declaration that the two respondents were not his sons, and that they were the illegitimate children begotten from Karamat. Admittedly the petitioner had been married to Mst. Kalsum, and the two respondents were born to Mst. Kalsum during the subsistence of the marriage. The petitioner, however, claimed that ho was a minor when he was married to Mst. Kalsum, and that he had no access whatsoever to her. The trial Court found that the petitioner had failed to prove his case, and it accordingly rejected his claim and dismissed the suit.
3. On appeal by the petitioner, the learned District Judge held that the respondents were the legitimate sons of the petitioner. The appeal was accordingly dismissed. The learned Single Judge of the High Court in revision refused to interfere with the concurrent finding of the two Courts below on the ground that the point of dispute between the parties was a pure question of fact, and that there was no question of jurisdiction involved in the case so as to attract the operation of section 115 of the Code of Civil Procedure. We are unable to find any fault with this view of the High Court.
4. ' Section 112 of the Evidence Act which is applicable to the facts of the case provides :- "The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eightly days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriag had no access to each other at any time when he could have been begotten."
5. ' It may be added that the petitioner in his plaint admitted that Mst. Kalsum was his real cousin and was married to him as prescribed by Shariat.
6. ' There is no question of law far less of any public importance involved In the petition and it is accordingly dismissed.
Cited by 2 cases
- ALLAH BUX through Legal Heirs vs GHULAM HUSSAIN and 4 others 2001 YLR 1039
- MUHAMMAD ISMAIL vs TAJ DIN 1982 CLC 717