Arsalan case against Imran on moral ground may not stand
Guest column By Barrister Ameer Abbas Khan
Is it true that people hit below the belt when they are losing out or don’t have enough strength to face their opponents?
If it’s true, wouldn’t the attempt of Arsalan Itikhar Chaudhry to seek Imran Khan’s disqualification on the basis of ‘allegedly his other daughter’ fall in the same category? Unless it’s being used as a time-sensitive pressure tactic, which politicians use often.
Various other parties have raised this subject before but they didn’t get their desired result; so, for Arsalan Iftikhar Chaudhry to come and bring up this issue again does raise questions as to his motives.
Having said that, it would not be easy for Arsalan Iftikhar Chaudhry to prove that Imran Khan failed to disclose his ‘daughter’ in his nomination papers.
The first thing that Arsalan would need to establish is that Tyrian indeed is the daughter of Imran Khan. In this respect, people apparently rely on an ex parte Judgment of American Court against Imran Khan. However, in my opinion, this ex parte judgment would be inadmissible in Pakistan Courts as per Rule 13 Civil Procedure Code 1908.
So, this judgment being out of court, what other evidence could there be to actually prove that Imran Khan is the father of Tyrian.
Even if it is established that he is indeed the biological father of Tyrian, my understanding is that since she is alleged to be born outside the marriage then according to Pakistani and Islamic laws he is still not the legal father and has no legal relationship whatsoever with the child.
Since it is a sensitive issue, a relevant part of the judgment in the case of Roshan Desai V Jahanzeb Niazi PLD 2011 Lahore 423 is quoted here to avoid any doubts:
“The question of a minor’s custody has to be addressed by reference to his status under the applicable Pakistan Law, more appropriately the Islamic Law, which does not recognize a common law marriage or partnership as a valid marriage with the result that a child born to parents, having a common law marriage, is born outside marriage and cannot be regarded as a legitimate child. Under Islamic Law, the father of an illegitimate child has no legal tie with the child even though he is the biological father and the blood tie between the two is undisputed. Such a father has no legal relationship whatsoever with the minor so much so that the child does not inherit from his father or vice versa which is otherwise the case of a legitimate offspring.”
Even keeping merits of the case aside, Arasalan Iftikhar Chaudhry would have difficulty in finding right forum where to raise this issue.
Ideally, this issue could have been raised before the Election Tribunal for which the deadline has already been missed and even if one could still challenge this issue before election Tribunal, I am not too sure if Arasalan Iftikhar could have brought this issue before the Election Tribunal in the first place on the basis that he was not the resident of Imran Khan’s constituency nor he contested election against him.
And in order to invoke the jurisdiction of High Court or Supreme Court to deal with this sort of matter, one has to have a real strong case that does not require further investigation and in light of above discussion it can be safely said that its not the case with the accusation of Araslan Iftikhar Chaudhry against Imran Khan.
Having clarified the legal position as per my understanding, I believe that such actions “where personal matters of a person are attacked so casually” must be discouraged by all sections of society.
And Arsalan Iftikhar Chaudhry does not need this type of case anyway; he could bring a case of defamation against Imran Khan.
An Abdalian and Aitchisonian, Barrister Ameer Abbas Ali Khan, is a Solicitor-Advocate (UK), Advocte High Court. He has LLB (Hons) UK, LLM (LSE), Bar-at-Law from Lincoln Inn, and lives in London. His father has been an MP in Pakistan over several decades.