While imposing a hefty cost of one million rupees on a petitioner, the Supreme Court held that the use of legal process as an instrument of coercion and harassment is completely prohibited. In a seven-page judgment written by Justice Shahid Bilal Hassan, the court noted that the petitioner had forced the respondent, a young woman, to submit to repeated, invasive and humiliating scrutiny through a defense that was found to be unfounded.
"Such use of the legal process as an instrument of coercion and harassment is completely prohibited. In order to mark the strong disapproval of the court, to compensate the defendant for the unnecessary hardship caused and to deter the repetition of such frivolous and vexatious litigation, this application is dismissed with exemplary costs," he said. A three-judge bench headed by Chief Justice of Pakistan Yahya Afridi heard the case. The Family Court ruled on a suit for acquiescence of marriage and dismissed the petitioner’s action for restitution of conjugal rights. The High Court upheld the findings of the lower courts. The court observed that the facts of the case were not only unusual but deeply disturbing. She noted that the respondent/complainant, a young woman, alleged that the applicant – her paternal uncle (phupha) – had taken advantage of a relationship of trust, closeness and domination to sexually assault her. The record further reveals that the petitioner, a married man with children, attempted to present himself as the lawful husband of the respondent by claiming a purported sharia nikah on April 3, 2020. Significantly, the lawful wife of the petitioner is the paternal aunt (phupho) of the respondent. Even according to the petitioner’s own account, the purported marriage would fall under the prohibited degree and would not be permitted during the continuance of the prior marriage. The court noted that, in an attempt to overcome this inherent legal obstacle, the petitioner had made a completely baseless plea for divorce from his lawful wife. Rather than strengthening his arguments, this reflected an attempt to adapt the facts and manufacture a narrative to give a color of legality to what appeared to be an illegal and coercive relationship. The judgment further states 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 the marriage is discarded – as was simultaneously the case by the lower courts – he cannot be allowed to escape the consequences of his own conduct.
"The minor child is an innocent life and cannot be left unprotected. The law does not allow a child to be deprived of livelihood, dignity and legal support simply because the relationship between the parents is contested, illegal or subject to criminal prosecution.
"It is a well-established principle of law that the right to maintenance belongs to the child and is based on considerations of welfare, justice and equity."
The court held that once biological paternity is established, the corresponding obligation to support the child follows as a necessary legal consequence.
"A biological father cannot be allowed to deny responsibility or hide behind technical arguments of legitimacy, nor can this court grant discretionary jurisdiction to a litigant who attempts to convert an illegal or coercive act into a civil right.
"In this regard, the law distinguishes between a “legitimate child” and a “biological child”. A biological child is genetically related to the parent, while legitimacy concerns the legal status of birth within a legal marriage."
The judgment also highlights that human dignity is inviolable and enjoys constitutional protection under Article 14 of the Constitution. "The courts cannot serve as a passive venue for the perpetuation of social prejudices, nor allow their process to become a means of inflicting secondary victimization on women who approach the courts to assert their legitimate rights.
"Frivolous allegations and contrived pleas, especially those aimed at undermining the identity, character and dignity of a woman, cannot be tolerated in any civilized justice system.
"Furthermore, in all matters relating to children, the primary 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 require the protection of children without discrimination."
