Akbar Hussain vs Adj etc.

HCJD/C-121

ORDER SHEET.

LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W. P. No. 6858 / 2017

Akbar Hussain Versus Additional District Judge, etc.

JUDGMENT

Date of Hearing: 08.02.2022 Petitioner By: Mr. Saghir Ahmad Bhatti, Advocate Respondents No. 3 Malik Azhar Hussain, Advocate and 4 By:

ABID HUSSAIN CHATTHA, J: Through the instant constitutional Petition, the Petitioner has assailed the impugned Judgments & Decrees dated 21.05.2016 and 04.05.2017 passed by Family Court, Mailsi and Additional District Judge, Mailsi, whereby, suit for recovery of maintenance allowance, dower and dowry articles of Respondents No. 3 and 4 was decreed against the Petitioner.

2.The Petitioner resisted the suit by filing the written statement, wherein, the claims of Respondents No. 3 and 4 were rebutted. After framing issues out of divergent pleadings of the parties, pro and contra evidence was recorded and eventually, the Trial Court passed the decree. Respondent No. 4 (minor) was held entitled to receive maintenance allowance @ Rs. 3,000/- per month from the date of institution of suit till her marriage with 20% annual increase. Respondent No. 3 was also awarded maintenance allowance @ Rs. 3,000/- per month in case of rehabilitation in the house of the Petitioner subject to adjustment of already paid maintenance allowance in final decretal amount. After excluding several dowry articles on the basis of evidence on record, an alternate price thereof to the tune of Rs. 450,000/- was awarded to Respondent No. 3. Further, a ten Marlas constructed house or its alternate value up to Rs.

600,000/- was also decreed in favour of Respondent No. 3. The suit of the Petitioner for restitution of conjugal rights was also decreed.

3.Both parties filed Appeals before the Appellate Court. The Appeal of the Petitioner was dismissed, whereas, the Appeal of Respondent No. 3 was partially allowed and the Appellate Court slightly modified the Judgment and Decree passed by the Trial Court by enhancing the alternate price of dowry articles to Rs. 500,000/- and linking the recovery of maintenance allowance in favour of Respondent No. 3 @ Rs. 3,000/- per month from the date of filing of the suit till the payment of dower mentioned in column No. 16 of Nikahnama or in case of “Abadi”.

4.Learned counsel for the Petitioner submitted that the Appellate Court erred in law by linking the “Abadi” of Respondent No. 3 with the Petitioner subject to payment of dower in terms of 10-Marlas constructed house as per condition No. 16 of Nikahnama. He submitted that in recent Judgment in case titled “Wasif Ali, etc. Vs. Fakhra Jabeen, etc.” passed in Writ Petition No. 2111 of 2013 decided on 05.10.2021 by the Hon’ble Division Bench of this Court at Rawalpindi Bench, while interpreting condition No. 16 of the Nikahnama, it has been held that the immovable property mentioned in condition No. 16 cannot be termed as dower if it does not correspond to entry No. 13 of the Nikahnama. He further contended that the price of dowry articles determined by the Courts below is excessive in terms of evidence brought on record.

5.Conversely, learned counsel for the Respondents submitted that it is settled law that “Abadi” is linked with the payment of dower. He added that the alternate price of dowry articles has been fixed after due appreciation of evidence.

6.The perusal of the impugned Judgments and Decrees reveal that the same have been passed after taking into consideration every piece of evidence on record. The financial position of the parties was taken into account. The unproved dowry articles were excluded while determining the alternate price of dowry articles. The financial positions of the father of Respondent No. 3 who owned agricultural land and that of her brother who works at Saudi Arabia were duly considered alongwith other evidence to arrive at fair and just alternate price of dowry articles.

7.The Wasif Ali case (supra) relied upon by learned counsel for the Petitioner has been examined by this Court. It was held therein in view of the peculiar facts and circumstances of the case that columns No. 13 and 16 of the Nikahnama are to be read conjunctively with each other. Column No. 13 exclusively deals with the amount of dower, whereas, columns No. 14, 15 and 16 are in addition to column No. 13 which explain the nature of dower, part of dower if paid at the time of Nikah or the property given in lieu of dower. While holding as such, it was candidly acknowledged in paragraph No. 15 of the said Judgment that “the Nikahnama in the Form annexed with the “Rules 1961” contributes to the confusion leading to recording of terms of the marriage contract in the wrong columns. Manifestly, column No. 13 for example seeks information in terms of the amount of dower whereas it is settled law that dower can be in the form of an amount, tangible or intangible property. This Court has been approached by the parties with claim to the effect that movable and immovable properties specified in column No. 13 are not enforceable for the said column only visualizes dower in terms of an amount. Column No. 16 of the Nikahnama Form on the other hand postulates a question regarding property while treating that to be only in lieu of whole or any portion of the property and value thereof agreed between the parties so that it is clearly stated that the property in column No. 16 is for how much part of the dower specified in column No. 13 of the Nikahnama Form”. Several other questions giving rise to confusion regarding interpretation of columns No. 13 to 16 were highlighted in the said paragraph. Importantly, in paragraph No. 22 of the said Judgment, it was acknowledged that the above noted anomalies often occur due to incompetency or willful fault on the part of Nikah Registrar, who ordinarily avoids the adherence to the Rules framed under the Muslim Family Laws Ordinance, 1961 (the ‘Rules 1961’). As such, certain directions were issued to resolve such problems in future and in this behalf, it was emphasized that till such time, the Nikah Form prescribed under Rule 8 of the Rules 1961 is suitably amended, each case shall be decided on its own facts and circumstances keeping in view the intention of the parties as expressed in the Nikahnama.

8.It is noted that in paragraph No. 15 of case titled, “Mst. Yasmeen Bibi Vs. Muhammad Ghazanfar Khan and others” (PLD 2016 Supreme Court 613), the following observations were made:- “In the case of dissolution of marriage on the basis of “Khula” a full Bench of the High Court in the case of Dr. Fakhr-ud v. Mst. Kausar Takreem and another (PLD 2009 Peshawar 92) while interpreting and construing all these new provisions introduced in the Family Courts Act held that the relevant provisions of the Family Courts Act, 1964 and that of Muslim Family Laws Ordinance, 1961 were ultra-vires to the extent that the wife has to return the dower in case of dissolution of marriage on the basis of “Khula” because under the Islamic injunction and according to the relevant verses of Holy Qura’an the wife has only to return the other benefits, given to her by way of gift etc. and not the dower amount because that is most essential consideration for valid contract of marriage being a civil contract, which cannot become binding and valid unless the consideration is paid. In the said judgment, many guidelines and principles have been laid down and till date the said judgment holds the field, which needs to be followed and regarded without any exception unless and until it is set aside by the Supreme Court.”

In the above case, as per Nikahnama, dower in cash amounting to Rs. 100,000/- was fixed payable on demand. In addition thereto, in column No. 17, it was further undertaken by the husband that he would pay Rs. 1,000/- to the wife as pocket money and transfer the land measuring 200-Kanals situated in Mauza Amir Shah, Tehsil and District Dera Ismail Khan in the name of the wife and so that she would be exclusive owner of the same. The Trial Court decreed the suit for arrears of maintenance @ Rs. 10,000/- per month till the time of ‘Iddat’ and Rs. 100,000/- as dower. Besides, the landed property described as aforesaid was also decreed after holding that it was within the jurisdiction of the Family Court, Multan as the wife / Petitioner was residing at Multan. However, the Decree was modified by

the District Court in Appeal and decree for landed property was set aside with respect to the said land. This Court, however, decided that the issues involved in the case were beyond the jurisdiction of the Family Court. Hearing Appeal against the Judgment of this Court and while deciding the pivotal issue regarding jurisdiction of the Family Court, the Apex Court further observed that the landed property given to the wife or in this behalf, an undertaking given in the Nikahnama is conclusive in nature and may be construed as a part of dower or a gift in consideration of marriage. Therefore, it fell within the exclusive domain of the Family Court at Multan as the wife was residing there.

9.It, therefore, follows that the August Supreme Court of Pakistan in the aforesaid Judgment termed the landed property incorporated in column No. 17 of the Nikahnama to be construed as part of dower or gift in consideration of marriage. The column No. 17 of the Nikahnama pertains to special conditions of the marriage, if any and does not even relate to columns specified for dower. In the recent Judgment in case titled, “Muhammad Qayyum Anjum Vs. Additional District Judge etc.” passed in Writ Petition No. 12103 / 2014 dated 14.06.2021 decided by this Court, the same issue was dealt with in the light of the aforesaid Judgment of the August Supreme Court of Pakistan. It was held therein that the relevant entries incorporated by the parties in columns No. 13 to 16 relate to dower and any entry by way of an amount or an undertaking pertaining to transfer of any property or other valuable such as ornaments is the dower or part thereof. As such, movable or immovable property conferred therein constituted dower in addition to amount specified in column No. 13.

10.From the above discussion, it is clear that the Form of Nikahnama is merely a prescribed format to record various particulars with respect to marriage in order to give uniformity in terms of documentation and recording of Nikah. As such, in a dispute regarding interpretation of various entries of the Nikahnama, the intention of the parties gathered and inferred from the Nikahnama itself and other evidence on record is required to be analyzed to determine mutual rights and liabilities of the parties.

11.In the instant case, perusal of Nikahnama reveals that an undertaking was incorporated in column No. 16 to the effect that 10-Marlas constructed

house will be transferred in the name of Respondent No. 3 which was valued at Rs. 400,000/-. Column No. 13 provided an amount of Rs. 4,000/- as dower. Column No. 14 stated the entire amount of Rs. 4,000/- as prompt, whereas, column No. 15 was left blank. In addition thereto, special conditions starting from column No. 17 were also incorporated to the effect that (i) if the Petitioner would divorce Respondent No. 3 without any just cause, then as fine / compensation, he would be liable to pay Rs. 500,000/- and (ii) if on account of differences with the Petitioner, Respondent No. 3 goes to her parent’s residence and Petitioner or his family members do not make any effort for resolving such differences, then Respondent No. 3 shall be entitled to Rs. 5,000/- per month as maintenance. Reading the above conditions of marriage in conjunction with each other, the intention of the parties becomes clear that 10-Marlas constructed house valuing not less than Rs. 400,000/- was incorporated as an additional dower which must be construed separately and independently from an amount of Rs. 4,000/- incorporated in column No. 13. Otherwise, not only both columns as filled in would become mutually destructed and column No. 16 in particular would become redundant but would have also lead to deprive Respondent No. 3 from her dower which was specifically agreed at the time of marriage. Moreover, if the parties had intended not to treat the 10-Marlas constructed house as dower, they could have listed it under column No. 17 with other special conditions as were listed therein.

12.Evidence on record suggests that DW-1 acknowledged his signatures on the Nikahnama and stated that Hafiz Haq Nawaz performed his Nikah. He further admitted that Respondent No. 3 was his third wife. He having acknowledged the execution of Nikahnama, the general and bald denial of conditions regarding Nikhanama was meaningless especially when Nikah Registrar was not produced. Given that Respondent No. 3 was going to be the third wife of the Petitioner, it was quite natural that the immovable property and other special conditions were incorporated for the due security of Respondent No. 3 who as PW-2 and her father as PW-1 also corroborated the pleadings of the plaint. As such, the Trial Court rightly awarded Rs. 600,000/- as alternate value of constructed house as per condition No. 16 of the Nikahnama which at the time of marriage 2 1⁄2 years

ago was recorded at Rs. 400,000/- as per Nikahnama in contrast to the claim of Respondent No. 3 in the plaint to the extent of Rs. 10,00,000/-. Hence, the findings of the Courts below are unexceptional.

13.In view of the above, the instant Petition is devoid of merit and is dismissed, accordingly.

(Abid Hussain Chattha) Judge *Ahsan Shah*