March 18, 2025
By Xari Jalil
LAHORE
In a landmark decision, the Lahore High Court has ruled that biological fathers are legally obligated to provide maintenance for their children, even if those children are born out of wedlock or as a result of rape. The decision, delivered by Justice Ahmad Nadeem Arshad, came in a case involving Muhammad Afzal, who was challenged a decision by the Family Court to grant a maintenance allowance to Esha Rani/Esha Bibi, the alleged biological daughter of the petitioner. The case brought to the forefront complex legal and social issues surrounding paternity, legitimacy, and the financial responsibility for children born outside of wedlock.
The Family Court had initially decreed a suit for recovery of maintenance allowance for the child, filed by the mother of the child.
Key points of the judgment
Some important points made by the court included that there must be a distinction made between a biological child and a ‘legitimate’ one.
The court clarified the difference between a “biological child,” defined as a child genetically related to the parents, and a “legitimate child,” a child born to parents legally married at the time of the child’s birth. The court noted that a biological child could be born within or outside of marriage.
The court also emphasized that in cases where paternity is disputed, the woman seeking maintenance must first establish, through trustworthy evidence, that the defendant is indeed the biological father of the child.
It directed that Family Courts have the jurisdiction to adjudicate matters of child maintenance, even in cases where the biological relationship between the child and the alleged father is disputed. This jurisdiction is derived from the West Pakistan Family Courts Act, 1964, which provides a framework for resolving family-related disputes.
The judgment reviewed the historical context of maintenance laws in Pakistan, referencing Section 488 of the Code of Criminal Procedure, 1898, and the Muslim Family Laws Ordinance, 1961. The court noted that while the term “illegitimate” was previously used, the focus has shifted towards ensuring the welfare of the child. The court also considered Islamic principles in its decision. It referenced the Holy Quran and Hadith, emphasizing that while Islamic law outlines specific conditions for legitimate parentage, it also acknowledges the responsibility of a biological father to provide maintenance for his child.
The court made its decision after drawing upon legal principles from other jurisdictions, including Bangladesh and India, where laws explicitly recognize the rights of children born out of rape and the responsibility of biological fathers to provide for their maintenance.
Case background: Rape allegation and maintenance claim
The case’s origins lie in the allegation made by Maryam Zahid, the mother of Esha Rani/Esha Bibi who claimed that she was raped by Muhammad Afzal. An FIR (First Information Report) No. 134 dated 04.03.2020 was registered against him under sections 376 and 109 of the Pakistan Penal Code, 1860, which pertain to rape and abetment of rape. As a consequence of the alleged rape, Maryam Zahid conceived, and Esha Rani/Esha Bibi was born on May 27, 2020.
Muhammad Afzal contested the suit, denying the claim that Esha Rani/Esha Bibi was his daughter, either legitimate or illegitimate. The Family Court initially ordered an interim maintenance allowance of Rs3,000 per month. However, Muhammad Afzal failed to pay this interim allowance, leading the court to strike off his defense and decree the suit, awarding the minor the Rs. 3,000 monthly maintenance.
Establishing paternity: Burden of proof
The court addressed the critical issue of establishing paternity in cases where it is disputed. It emphasized that when a woman claims maintenance for her child against the alleged biological father who denies the relationship, the onus of proof lies on the woman. She must establish, through trustworthy evidence, that the defendant is indeed the biological father of the child.
The judgment outlined various methods for determining a child’s status, drawing upon Islamic principles. These include legal marriage or valid marriage between parents, ‘syubhah’ intercourse (intercourse under doubtful circumstances), the father’s acknowledgment of the child as his biological child, evidence from two fair male witnesses, ‘qiyafah’ (recognition by experts in determining descent based on physical characteristics), DNA tests. It said that laboratory testing had a high degree of accuracy in determining descent.
Court’s decision and directives
LHC concluded that Family Courts have the jurisdiction to adjudicate matters related to the maintenance of children, including cases involving disputed biological paternity.
The court set aside the previous decision and remanded the matter to the trial court. The trial court has been directed to record the plaintiff’s evidence to determine if the petitioner is indeed the biological father of the child. If the court establishes the biological relationship, it can then proceed with determining the appropriate maintenance allowance.
The parties involved have been directed to appear before the District Judge, Nankana Sahib, on March 10, 2025, who will then entrust the matter to the relevant court at Tehsil Sangla Hill.
This judgment marks a significant step towards ensuring the rights and welfare of children, regardless of the circumstances of their birth.