IN Pakistan, statutory legislation, cultural customs and Islamic principles all influence the legality of second marriages.
The Muslim Family Laws Ordinance (MFLO) 1961 governs polygamy in Pakistan and establishes particular rules and guidelines to guarantee the rights of everybody involved, including the second wife. The protection of the second wife’s rights under Islamic law is based on moral and ethical considerations. According to Pakistani law, the second wife has particular rights that are intended to safeguard her standing, self-respect and welfare in the marriage. Even with the legal safeguards in place, second spouses frequently find it difficult to exercise their rights.
The second wife might be shunned by her community or judged. But, Pakistani law gives the second wife a number of ways to defend and enforce her rights, but regrettably, after a father’s death, paternal relatives always make a conscious and malevolent effort to damage a person’s reputation. They do this by methodically attempting to undermine credibility and reputation, frequently through deception, emotional manipulation and character assassination. Muslim and conventional law provides equal rights for distributing the property of those who die without a will. Even when a person dies without a will, his property is distributed according to a strict statutory system to his spouse, children, descendants, or other relatives. It’s a common practice in Pakistan courts that after death of the deceased paternal family always into foul and abusive litigations since about not giving share of inheritance to the kids from the assets of the deceased.
It is becoming a common practice in our society that whenever a suit for recovery of maintenance/ administration is filed against a person/ paternal he comes forward to the Court and challenges the legitimacy of the child by moving an application requesting for conducting DNA analysis of the child. There is frequency in witnessing abusive litigations/ frivolous lawsuits as tool of harassment which is clear violation of due legal rights granted by Islam/ Shariat. Character assassination is a common practice in Pakistan against those who raise voice after death of their father for due legal inheritance share…….on such people conventional and Islamic laws are not applicable and they are only on the land to abuse others to grab wealth and kill moral values.
It was held that a challenge to the paternity of another person could not be allowed to persevere where it infringed on such person’s fundamental rights guaranteed by Articles 9 and 14 of the Constitution. It is, therefore, also an integral part of the constitutional right guaranteed under Article 14 i.e. inviolability of dignity of a person”.Living a lawful life and fighting for rights after death of a father is a hell in Pakistan that the paternal family behave worst to snatch rights of other people. Article 128 of Qanun-e-Shahadat Order, 1984, (QSO, 1984), “is couched in language which is protective of societal cohesion and the values of the community.”
In view of Article 128 of the Qanun-e-Shahadat Order, 1984 (“1984 Order”) — a challenge to the paternity of the petitioner’s offsprings could not be brought about by a third party. In view of the provision of QSO, 1984 conclusive proof of legitimacy of a child or his status as offspring of deceased cannot be disproved by any oral evidence as against the documentary evidence from official record which is public document (NADRA record) as defined in Article 85 of the QSO, 1984 and it is not out of place to highlight that as per the dicta of the Hon‟ble Supreme Court laid down [in the case of Ghazala Tehsin Zohra (supra)], DNA testing in civil cases is not permissible.
The law inclines towards the presumption on of paternity rather than illegimacy. It is a trite principle of Muslim law that the paternity of a child born in lawful wedlock carries the presumption of truth and it cannot be refuted by simple denial.Oral testimony, in presence of the available evidence on record and presumption of law, do not carry weight.
The law as laid down by the Supreme Court clarified that no negative declaration with regard to paternity could be issued. The prohibition against bringing a challenge against the paternity of an individual is designed to protect the right of such individual to dignity and privacy guaranteed by Article 14 of the Constitution, as well as the collective interest of the society in protecting the rights and interests of women and children, including the privacy, identity and reputation of children from being besmirched from allegations of illegitimacy.
The psychological factors and most common motivations that drive individuals to opt for character assassination during court proceedings or making derogatory statements about someone have the intent of damaging reputation, with the ulterior motive of depriving the kids of the deceased of their identity and right of the inheritance. Such practice of challenging paternity by paternal families after death of a should be discouraged and dealt with an iron hand because encouraging such practices would only serve to erode trust in the legal system that is designed to protect the interests of vulnerable children.
—The writer is contributing columnist, based in Islamabad.
