Woman sues 'rapist' for child support
A single-member bench of the LHC comprising Justice Ahmad Nadeem Arshad allowed a petition filed by a Muhammad Afzal against the verdict of a trial court.
According to an FIR on March 4, 2020 for offences under section 376, 109 of Pakistan Penal Code, 1860, Maryam Zahid was allegedly raped by Afzal.
As a result of the rape, Maryam conceived and ultimately gave birth to a female child.
Later, a suit was filed on behalf of the child for recovery of maintenance allowance from Afzal. According to the suit, the child being the biological daughter of Afzal was entitled to get an allowance.
Muhammad Afzal contested the suit by filing a written statement, negating the version that he was the biological father of the child.
However, the trial court decreed in the respondent minor's favor. When Afzal failed to pay the interim maintenance allowance, his defense was struck off and the suit was decreed by awarding maintenance allowance to the minor at the rate of Rs3,000 per month.
Muhammad Afzal later challenged the trial court's order in the LHC, which allowed his petition.
In his order, Justice Ahmad Nadeem Arshad noted that this was not a case of recovery of maintenance allowance simpliciter.
He noted that the contention of Maryam Zahid in the plaint was that as a result of rape she conceived the minor, who being the biological daughter of the present petitioner is entitled to get maintenance allowance.
The verdict said that in case of a legitimate child, the mother institutes a suit under the Family Courts Act, 1964 or approaches the chairman of the concerned union council in the light of Section 9 of Muslim Family Laws Ordinance, 1961, for recovery of maintenance allowance.
The court then fixes an interim maintenance allowance as a temporary arrangement and on failure of the defendant/father to pay interim maintenance the court strikes off his defence and decrees the suit straightaway under Section 17-A of the Family Courts Act, 1964.
"But in the case where a woman claims maintenance for her child against the biological father, who denies the version, the woman would first need to establish, through trustworthy evidence, that the defendant is indeed the biological father of the child.
"The burden of proving that the defendant [Afzal] is the biological father of the child lies on the woman who claims the maintenance," it said.
The LHC said the trial court erred in law by granting maintenance for the child without first ensuring, through the proper process of evidence, that the child is indeed the biological offspring of the petitioner.
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