The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Muhammad Afzal Zullah, J.

(a) Constitution of Pakistan (1973), Art. 35, 25 & 14.
r/w Muhammad Law— Marriage wit prostitute—Proof—Presumption—Marriage with a prostitute sought to be proved by acknowledgment and/or prolonged cohabitation—Presumption—

A careful survey of the case-law has led us to hold that no hard and fast rule can be laid down on the subject of presumption regarding prostitute’s marriage when it is sought to be proved by acknowledgement and/or prolonged cohabitation. It will not be correct to say, it needs to be emphasised, that no presumption at all shall be raised in cases of prostitutes. On the other hand it seems just and proper to hold that a presumption could be raised but it would remain rebuttable. This approach to the controversy raised by the learned counsel before the Court is not only desirable but also necessary. The cases cited at the Bar or otherwise noticed have dealt with only one side of the human nature the bad one. It ignores another side which is important so as to give a balanced treatment to the subject; namely, the good side of human nature together with element of Touba. The detailed analysis made of cases, has shown that all prostitutes do not adopt and/or continue this old profession, hated in our society, out of lust including that for riches. A large majority of them are compelled to adopt it on account of social conditions, mishaps in childhood including broken homes, cruelty of criminals and others similar causes. Out of this and other category it would not be wrong to assume that the repentants and considerable others would be eager to get out of the profession so as to live a respectable life. Accordingly when once she is able to prevail upon a man to take to his house it would be natural for her to compel him to marry her by whatever means and methods. Therefore, while the learned Judges examined the bad side of the picture and reached one conclusion if the other side would have been examined, the said conclusion might have been neutralised and the presumption based on acknowledgment/cohabitation or other similar circumstances would not have been disturbed.

For yet another reason we have not been able to agree with the unqualified view expressed in some of these judgments regarding the presumption in cases of prostitutes. It relates to some mandates in our Constitution. They were obviously not examined— nor were before the Courts whose decisions have been relied upon by the learned counsel. It is provided in Chapter 2 of Part I of the Constitution under the subject-heading Principles of Policy in Article 35 that, “The State shall protect the marriage, the family, the mother and the child”. [p. 369] D

For the present case it would suffice to say that Command to “protect the marriage” would certainly also protect a rebuttable presumption based on acknowledgement/long cohabitation relied upon by the Courts, for a very long time. It would, therefore, continue for this additional ground also, regardless of the departure made by some Privy Council and other judgments, noticed above. While interpreting this Command in Article 35 aid from the fundamental right of equality of Citizens (Article 25) could also be sought. Discrimination on the basis of sex alone has been prohibited by the Constitution. Together with this the State has been commanded to make special provision for the protection of women and children. It would be in aid of these mandates if the said presumption is allowed to stay. The fundamental right  regarding inviolability of dignity of man (Article 14) would also be of some help in individual cases relating to general subject under discussion through it is not attracted to the facts and circumstances of the present case. [p. 370] E.

Petition dismissed.

Advocate for the Petitioners:
A. R. Sheikh, Advocate Supreme Court with Muhammad Aslam Chaudhary,
Advocate-on-Record.

Advocate for the Respondents:
Iftikhar Ahmad Dar, Advocate Supreme Court with S. Abid Nawaz, Advocate-on-Record.

Date of hearing: 22nd March 1989.