Pakistan

In Pakistan the Qanun –e-Shahadat Order 1984 deals with the issue of establishing filiation (nasab). It lays down a minimum and maximum period of gestation. However, there is no specific legislation regarding acknowledgement (iqrār), proof (bayyina), and use of scientific methods as Deoxyribo Nucleic Acid (DNA) test for determining the filiation of a child. The law also does not make a clear distinction between a valid and irregular marriage. In this chapter it is argued that the courts in Pakistan have played an important role in establishing filiation of a child and have adopted a more progressive approach to save the mother and the child from the stigma of illegitimacy. In the absence of specific legislation, the Courts in Pakistan have recognized an irregular marriage and sexual intercourse as a result of the semblance of marriage as legal proofs of establishing filiation. In 2010 consequent to the 18th Constitutional Amendment, legislative and administrative competence as well as financial authority on child rights issues has been devolved to the provincial legislative assemblies. As a result, at the provincial level in the province of Punjab, laws such as the Child Protection and Welfare Act, 2010(CPWA 2010); the Punjab Destitute and Neglected Children Act, 2004(PDNCA 2004) and Employment of Children Act, 1991 (ECA 1991), to name a few, have been enacted to provide protection to orphaned children, abandoned or foundling (laqīṭ) and street children. Besides these pieces of legislation issues relating to custody and guardianship (vilāyat) of children are covered by the Guardians and Wards Act, 1890 (GWA 1890), a federal level legislation enacted and implemented throughout Pakistan. Although adoption in its strict Western sense is not allowed in Pakistan, the GWA 1890 makes provision for an individual to obtain legal guardianship of a child (a practice consistent with the Islamic concept of ‘Kafalah’).