Judge Leon R. Yankwich once said, “there are no illegitimate children, only illegitimate parents”, and this also our belief that on 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 an unfortunate child.
It would be pertinent to distinguish between 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.
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 i.e. 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 is every child. Therefore, family laws need to be amended to secure maintenance for every child.
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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, whereafter the spouse is called as husband and wife constituting a ‘family’. This gives right to the use words ‘legitimate child’ for their offspring and the same. If the child is not born out of such a legitimate relationship i.e. marriage of Nikah, then society tags him as an illegitimate child. Yet, in fact it is not the child but the relationship which is legitimate or illegitimate.
Secondly, maintenance primarily means and includes “food, raiment (clothing) and lodging” for which Supreme Court in case titled Humayun Hassan v Arslan Humayun (2013) held that such definition should be given an extended meaning for the purpose of meeting present day requirements. It held that such a definition was neither conclusive nor exhaustive and should be given an extended meaning for the purpose of catering to the present day standards of social, physical, mental growth and general well-being of the minor, keeping in regard the norms of society, but corresponding to the means and capacity of the father to pay.
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Thirdly, it is all crystal clear that among all Muslim schools of thought marriage is one of the causes that makes maintenance wajib, and a Muslim father is duty bound to provide maintenance to his family, as opined by Allah SWT in following verse: وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ …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-ʿāhir al ḥajar “and for the adulterer, the stone”. The essential condition for burdening the maintenance is الْمَوْلُودِ لَهُ (husband) which a man only becomes after entering a valid marriage (Nikah). For brevity of this concept, here it would be pertinent to distinguish between 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 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, 1964 do understand what to do in a simple scenario for a child’s maintenance, but they face great confusion in cases of children not born under valid marriage. This only serves to increase the children’s suffering.
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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 favor upon you and have approved for you Islam as religion”; so, it is the dire requirement of today to amend family laws and secure the maintenance for each child. The issue has also been highlighted in case ofNadeem 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 of the parliamentarians/legislators to do their job and amend the family laws.
Hafiz Muhammad Azeem is a writer and an advocate of the High Court and teaches law