Hafiz Muhammad Azeem
JUDGE Leon R Yankwich once said, “There are no illegitimate children, only illegitimate parents”, and this
also our belief that on the Judgment Day, the children of Adam will be called out by their mother’s name and this demonstrates that God ensures it—that even when there will be no secrets, a child (not born out of wedlock) must not be discriminated there as well by calling as an illegitimate, rather he is the unfortunate child. Admittedly for the child born out of wedlock, the father/husband is duty bound to provide maintenance, but for the child born not out of legitimate relationship ie marriage, our legislation is silent. One of the paramount purposes of the legislation is to remedy the defects and reduce the miseries of the citizens, in a society by providing adequate measures and means to achieve it. No one’s life and rights can be regarded as illegitimate—everyone is equal in the eyes of God—and so as every child; therefore, family laws are need to be amended to secure the maintenance for every child.
Firstly, for Muhammadans one of the main reasons to formulate and legislate the family laws in our society, is the institution of Nikah or marriage which establishes paternity for a child. In Pakistan the Nikah is registered under the Muslim Family Law Ordinance 1961, where after the spouse is called as husband and wife or in other words a ‘family’. This gives right to the use words ‘legitimate child’ to the very offspring and the same, if unfortunately, not born out of such a legitimate relationship i.e. marriage of Nikah, then society tagged him as an illegitimate child; yet, in fact it is not the child rather the relationship which is legitimate or illegitimate. Secondly, maintenance primarily means and includes “food, raiment and lodging” for which Supreme Court in case titled as Humayun Hassan v Arslan Humayun of 2013 held that such definition should be given an extended meaning for the purpose of meeting and catering the present-day requirements. It held that such definition was neither conclusive nor exhaustive and should be given an extended meaning for the purpose of meeting and catering for the present days social, physical, mental growth, upbringing and well-being of minor, keeping in regard to status and norms of society, but corresponding to and commensurating with the means and capacity of the father to pay.
Thirdly, it is all crystal clear that among all Muslim schools of thought the marriage is one of the causes that makes maintenance wajib, and a Muhammadan father is duty bound to provide maintenance to his family, as opined by Allah SWT in following verse: “And on the child’s father (the husband) is their food and clothing”… (2:233) But what, if unfortunately, a child is born in consequence of rape or fornication? The answer is in Hadith Al walad lil firash, “the child/progeny belongs to the owner of the bed”, and wa-li-l-?âhir al ?ajar “and for the adulterer, the stone”. The essential condition for burdening the maintenance is (husband) which a man only becomes after entering into a valid marriage (Nikah). For brevity of this concept, here it would be pertinent to distinguish the two situations; one where a child is born in consequence of fornication of a married woman then the maintenance is her husband’s responsibility, second where if the female is unmarried then primarily it is her own responsibility and of the State.
Therefore, the State is responsible for the child’s maintenance if he is unfortunately not born through a legitimate relationship. Our family laws are silent and their silence creates confusion for the courts as well as for the society. At present the family courts constituted under the Family Courts Act, 1967 do understand what to do in a simple scenario for a child’s maintenance, but they are facing a great confusion in case of a child not born under the valid marriage, resultantly this increases the child’s sufferings. To conclude, in the very words of Allah SWT in Surah Al Maida, Verse No. 3 “This day I have perfected for you your religion and completed My favour upon you and have approved for you Islam as religion”; so, it is the dire requirement of day that to amend the family laws and secure the maintenance for each child.
The issue has also been highlighted in case of Nadeem Masood v the State in Lahore High Court wherein a child was born in consequence of rape and the court while briefly discussing this issue (a rapist is not bound under current family laws to pay maintenance) ordered the convict to pay Rs one million to the victim child as a compensation under criminal administration of justice, but not under the family laws because they are silent. Under these constrains, by relying on Verse No 15 of Surah Al-Isra that “…no bearer of burdens can bear the burden of another…”and reminding the legislation its prime duty to legislate—keeping in due regards to the Article 35 of the Constitution of Islamic Republic of Pakistan, 1973 — it is hereby requested before the parliamentarians/legislators to do their job and amend the family laws.
—The writer is an advocate of the High Court and teaches law.
Hafiz Muhammad Azeem