While imposing a hefty Rs1 million cost on a petitioner, the Supreme Court ruled that using judicial proceedings as an instrument of coercion and harassment is wholly impermissible.
In a seven-page judgment authored by Justice Shahid Bilal Hassan, the court noted that the petitioner compelled the respondent, a young woman, to undergo repeated, invasive and demeaning scrutiny through a defence that was concurrently found to be unsubstantiated.
"Such use of judicial proceedings as an instrument of coercion and harassment is wholly impermissible. In order to mark the court's strong disapproval, to compensate the respondent for the needless hardship caused, and to deter repetition of such frivolous and vexatious litigation, this petition is dismissed with exemplary costs," it said.
A three-judge bench headed by Chief Justice of Pakistan Yahya Afridi heard the matter. The family court had decreed a suit for jactitation of marriage and dismissed the petitioner's suit for restitution of conjugal rights. The high court upheld the lower courts' findings.
The court observed that the facts of the case were not only unusual but deeply disturbing.
It noted that the respondent/plaintiff, a young woman, alleged that the petitioner — her paternal uncle (phupha) — had taken advantage of a relationship of trust, proximity and dominance to sexually assault her.
The record further revealed that the petitioner, a married man with children, attempted to portray himself as the lawful husband of the respondent by claiming an alleged Shariah nikah on April 3, 2020.
Significantly, the petitioner's lawful wife is the respondent's paternal aunt (phupho). Even by the petitioner's own account, the alleged marriage would fall within the prohibited degree and would not be permissible during the subsistence of the earlier marriage.
The court noted that, in an attempt to overcome this inherent legal impediment, the petitioner set up a wholly unsubstantiated plea of divorce from his lawful wife.
Rather than strengthening his case, this reflected an attempt to tailor facts and manufacture a narrative to lend a colour of legality to what appeared to be an unlawful and coercive relationship.
The judgment further records that the petitioner was declared the biological father of a minor child born to the respondent.
"In any event, even if the petitioner's version of marriage is discarded — as it has been concurrently by the courts below — he cannot be permitted to evade the consequences of his own conduct.
"The minor child is an innocent life and cannot be left unprotected. The law does not permit a child to be deprived of sustenance, dignity and lawful support merely because the relationship between the parents is disputed, unlawful, or the subject of criminal proceedings.
"It is a settled principle of law that the right to maintenance vests in the child and is founded upon considerations of welfare, justice and equity."
The court held that once biological paternity is established, the corresponding obligation to maintain the child follows as a necessary legal consequence.
"A biological father cannot be allowed to deny responsibility or seek refuge behind technical pleas of legitimacy, nor can this court lend its discretionary jurisdiction to a litigant who attempts to convert an unlawful or coercive act into a civil entitlement.
"In this regard, the law draws a distinction between a 'legitimate child' and a 'biological child'. A biological child is genetically related to the parent, whereas legitimacy pertains to the legal status of birth within a lawful marriage."
The judgment also emphasized that human dignity is inviolable and enjoys constitutional protection under Article 14 of the Constitution. "Courts cannot serve as passive venues for the perpetuation of social prejudice, nor can they permit their process to become a means of inflicting secondary victimization upon women who approach the courts for vindication of their lawful rights.
"Frivolous allegations and contrived pleas, particularly those aimed at undermining the identity, character and dignity of a woman, cannot be countenanced in any civilized system of justice.
"Furthermore, in all matters concerning children, the paramount consideration remains the welfare and best interests of the child.
"This approach is consistent with Pakistan's constitutional obligations under Articles 9, 14, 25 and 35 of the Constitution, as well as its international commitments under the Convention on the Rights of the Child (CRC), which mandate protection of children without discrimination."
