Judicial Approaches to Child Legitimacy in Pakistan: Statutory Interpretation of Article 128 of Qanun-e-Shahadat Order in Light of Islamic Law

الملخص

The concept of child legitimacy is the most prominent issue to be discussed in the light of Islamic perspective and enacted law in Pakistan. The finding in this study is that the legitimacy of child under Islamic law is totally based on the legality of marriage and its period of time for childbirth during and after valid marriage contract. The period specified is not before the expiration of 6 (six) lunar months from the date of his legal marriage or within the period of two years after marriage or dissolution. In Pakistan, the legitimacy of child is dealt under the Qanun-e-Shahadat order (1984) and the landmark ruling of the superior court of Pakistan under the injunctions of Quran and Sunnah. Its importance is lead to inheritance, maintenance and succession from his parents. This article mainly focusses on Islamic laws related to legitimacy of child and opinions of the jurists in different Islamic school of thoughts. The rationale behind the Islamic concept of legitimacy is to avoid the child and his or her mother from denouncement of the society. Islam is always in favor of legitimization rather than illegitimacy. The implication of my research is that legal marriage is consider birth to the best generation because the consequences of illegal marriage will badly effect on new born generation. I have found that article 128 of the Qanun-e-Shahadat order 1984 didn’t provide all the conditions about legitimacy of child so I will propose some necessary improvements and suggest making some space for the modern devices or modern techniques admissibility under article 164 of QSO in form of DNA test. If proper protocol is provided by article 128 then DNA test can be conclusive proof of legitimacy. I have also proposed my suggestion to determine the legitimacy of child especially in Pakistan by using a modern technology and from finding of the superior Court.