Mst. Bibi Razia Sultana Vs Muhammad Zubair

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) W.P No.25-C/2024 Mst. Bibi Razia Sultana Vs. Muhammad Zubair Present: Mr. Momin-ur-Rahman, Advocate for petitioner through Video Link.

M/s. Rahman Ullah Shah and Danish Khan Afridi, Advocates for Respondent through Video Link.

Date of hearing: 22.10.2025

JUDGMENT

SABIT ULLAH KHAN, J:-This single judgment in the instant petition shall also decide connected W.P No.4649- P/2024 titled “Muhammad Zubiar vs. Mst. Bibi Razia Sultana and others” as both these petitions are the outcome of one and same judgment of the learned Additional District Judge, Chitral Lower dated 12.08.2024, whereby appeal of the respondent No.1 (petitioner of connected writ petition) was partially allowed against the judgment and decree of the learned Family Court (Senior Civil Judge), Chitral Lower dated 13.05.2023 rendered in Family Suit No.81/FC of 2021.

2.Summarized facts of both these petitions are that the petitioner namely Mst. Bibi Razia Sultana (hereinafter referred to as the wife) has filed a suit against the respondent namely Muhammad Zubair (hereinafter referred to as the husband), seeking a decree to the effect that the Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

husband is bound to construct a separate house for her and to hand over 20 tolas of gold, as promised by him at the time of nikah. She has further sought a decree for recovery of Rs.10,00,000/- as her dower along with maintenance allowance @ Rs.10,000/- per month since 18.12.2018 till the subsistence of marriage; and recovery of Rs.70,000/- as expenses of litigation. It was contended in the plaint that the marriage between the parties was solemnized on 07.05.2018 in consideration of dower amounting to Rs.10,00,000/-, which is still outstanding against the husband. It was also averred that at the inception of matrimonial life, the relations were cordial, however, subsequently, due to the cruel conduct of the husband, the wife was taken him to her brother’s house on 18.12.2018, without any lawful justification and since then she is reading there a miserable life, hence, she is entitled to recovery of maintenance allowance. It was further added that at the time of nikah, the husband had undertaken to give her 20 tolas of gold and to construct a separate house for her as he had already married but despite her repeated demands, the husband has failed to fulfill his promise, so she constrained to file the suit.

3.On his appearance before the learned Family Court, the husband has contested the suit by filing a detailed Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

written statement raising therein various objections, inter alia, contending that the wife was disobedient to him; and she failed to perform her marital obligations because she has left his house just after 4/5 months of the marriage on her own accord. The contents of Columns No. 13, 17 and 18 of the Nikahnama were specifically denied by him and a request was made for the grant of a decree for restitution of conjugal rights. The divergent pleadings of the parties were reduced by the learned Family Court into issues, after the failure of pre-trial reconciliation proceedings. Then both parties produced their evidence in support of their respective contentions. Post-trial reconciliation efforts also proved unsuccessful conducted after the completion of evidence of the parties. After hearing the arguments, the learned trial Court has partially decreed the suit in favour of the wife to the extent of:

(i)Recovery of Rs. 9,00,000/- as her dower;

(ii)Recovery of 20 tolas of gold and

(iii)recovery of the maintenance allowance @ Rs.10,000/- per month from the date of institution of the suit till payment of dower or rehabilitation, whichever occurred earlier.

While the remaining claims of the wife were turned down, however, the husband was held liable to provide a separate residence to the wife and his claim for restitution of conjugal rights was decreed, holding that it shall be executable only upon payment of the outstanding Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

dower amounting of Rs.9,00,000/- to the wife vide judgment and decree dated 13.05.2023.

4.Being dissatisfied with the aforesaid judgment and decree of the learned family Court, the husband has preferred Family Appeal No. 07/FCA of 2023, which, after hearing the learned counsel for the parties, was partially allowed by the learned Appellate Court, it was held that the wife was a self-deserted lady and therefore, was not entitled to claim past maintenance while rest of the findings of the learned family Court were upheld vide judgment and decree dated 12.08.2024, hence, both these writ petitions.

5.Arguments heard. Record perused.

6.The marital bond between the spouses is still intact, however, the controversy involved in both these petitions revolves around the payment of dower, maintenance allowance and other conditional obligations as per the contents of the nikahnama (Ex.PW-1/2), particularly the entries recorded in its column No.17. In his written statement, the husband has challenged the fixation of dower of Rs.10,00,000/- by contending that it was determined in accordance with shariah and then in his statement as DW-1 asserted that the dower was fixed as Rs.

4,50,000/-, which he had already paid to the wife at the time of marriage/ rukhsati. In such circumstances, the burden to Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

establish the fixation of dower as Rs.10,00,000/- was upon the wife while the onus to prove fixation and payment of the dower as Rs. 4,50,000/- was laying upon the husband.

During the course of evidence, the wife produced her nikahnama (Ex.PW-1/2), duly registered with the Nikah Registrar, which clearly reflected in column No.13 that her prompt dower was fixed as Rs.10,00,000/-. In rebuttal, the husband has failed to produce any documentary proof to substantiate his claim that the dower was fixed as Rs.

4,50,000/-. To support the execution and genuineness of the said document, the wife has produced the Nikah Khwan Hidayat Ullah as PW-2, who corroborated her stance that the dower was fixed as Rs. 10,00,000/-, and also examined the Nikah Registrar as PW-3. During the cross-examination of the Nikah Registrar (PW-3), the husband has admitted that the Nikah form was brought before him by one Jehanzeb and it also came on record that the said Nikah Registrar was duly appointed. In cross examination of the wife (PW-1), it was also brought on record that her dower was fixed as Rs.10,00,000/-. Similarly, the other witnesses produced by the wife namely Ihsan Elahi (PW-4) and Aminul Akbar (PW-5), who were witnesses to the Majlis- e-Nikah, have also deposed in support of her version. Their testimonies remained unshaken even during lengthy cross- examination. On the contrary, the husband has failed to Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

bring on record any material suggesting that the Nikahnama was fake or forged, rather, during his cross-examination, the husband (DW-1) has candidly admitted that he was present at the time of Nikah, had signed the nikahnama himself and that too without any force or pressure upon him.

His other witness (DW-2) has stated that the Nikah Khwan/Molvi would be in a better position to recall the exact quantum of the dower, who has deposed that the same was fixed as Rs.10,00,000/-. So, the wife has proved that the nikahnama was duly executed at the time of nikah. In the case titled Usman Khan v. Mst. Shehla Gul and 02 others1, this Court observed that:

“Written statement filed by husband did not contain a single word about nikahnama having been forged rather it was admitted; however, its contents were attacked. Evidence showed that nikahnama was registered after solemnization of nikah. Husband himself had admitted nikahnama in his examination in chief, so it was required to be taken as a whole and not as per his whims and withes. Husband could not be allowed to admit a portion of nikah nama as correct and the other as incorrect.”

Therefore, the learned Courts below have rightly held that the prompt dower of the wife was fixed as Rs.10,00,000/-.

7.Insofar as the payment of the aforesaid amount of the prompt dower is concerned, the husband (DW-4) has admitted that with regard to the alleged payment of 08 tolas

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of gold, he had no evidence either documentary or oral and he has further stated that he was ready to pay the dower, meaning thereby that it was indeed outstanding. On the other hand, the wife’s witness (PW-4), while deposing that the dower was fixed as Rs. 10,00,000/-, admitted that Rs.

1,00,000/- had already been paid by the husband a part of the dower while the remaining Rs.9,00,000/- was still outstanding. Hence, the concurrent findings of the learned Courts below holding that out of the total prompt dower of Rs. 10,00,000/-, the outstanding amount against the husband is Rs. 9,00,000/-, are based on proper and correct appreciation of the evidence available on record and during the course of arguments, learned counsel representing the husband could not point out any evidence on record, which would have been ignored or overlooked by the learned Courts below.

8.As there was no mention of the provision of a separate house in the Nikahnama (Ex.PW-1/2) by the husband nor the wife could adduce any other reliable evidence in this regard, thus, her claim for the provision of a separate house, allegedly promised by the husband, was rightly turned down by the learned Courts below while simultaneously holding the husband liable to provide a separate residence to the wife with all basic necessities of Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

life, in accordance with the law and the husband was declared entitled for restitution of conjugal rights. In view of the settled principle of law that a wife cannot be compelled to perform her marital obligations unless her dower is paid on demand, the decree for restitution of conjugal was rightly made conditional upon the payment of the remaining amount of prompt dower. Hence, the findings recorded by the learned Courts below in this regard are correct and call for no interference by this Court. Since the wife has been living with her ailing mother, who resides with her relative namely Jehanzeb rather than with her brother since 18.12.2018, as alleged by her in the plaint, and in the absence of any evidence establishing cruelty on the part of the husband, it was rightly held by the learned appellate Court that she was residing apart from her husband at her own will, therefore, she was not entitled to claim past maintenance for the period. It also needs to be mentioned here that the fixation of Rs.10,000/- as maintenance allowance for the wife in case of displeasure of the husband cannot, in view of the above admitted facts, be interpreted otherwise.

9.Coming to the last and crucial issue in the matter i.e., as to whether the amount of 20 tola gold as mentioned in column No.17 of the nikahnama (Ex.PW1/2) could be Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

termed as dower and, consequently, it can be recovered by the wife from the husband during the subsistence of marriage. It was not only pleaded by the husband in his written statement but also argued before this Court that such an entry in the nikahnama does not fall within the definition of the dower rather it constitutes a condition or declaration beyond the scope of the Family Court’s jurisdiction.

According to the learned counsel for the husband, the wife, if aggrieved, ought to have approached a Civil Court for an appropriate declaration. It is, however, pertinent to mention that in certain precedents, it has been held by the superior Courts that “entries made in column No.17 of the Nikahnama, being in the nature of mutual arrangements between the parties other than dower and stipulations for its enforcement, fall within the jurisdiction of a Court of plenary jurisdiction (Civil Court)” as observed in the cases titled Muhammad Akram v. Mst. Hajra Bibi and 2 others, Shahida Parveen v. Nijabat Ali, and Mannan Feroz v.

Shomaila2, however, subsequent to the said judgments, the Hon’ble Supreme Court of Pakistan, while directly dealing with the issue relating to interpretation of certain entries in the nikahnama including column No.17, has held in the case of Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan 2 PLD 2007 Lahore 515, 2009 MLD 671 and 2015 YLR 1235 Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

and others3 that such matters fall within the exclusive jurisdiction of the Family Courts established under the Family Court Laws. The relevant portion of the said judgment reads as under:

“17. As in this case the landed property, given to the wife, or the undertaking given in the "Nikah Nama", to be transferred to her name is conclusive in nature and may be construed as a part of dower or a gift in consideration of marriage, therefore, it was falling within the exclusive domain of the Family Court at Multan, as the wife was/is residing there, which has not been denied by the respondent, therefore, in our considered view, the District Appeal Court and the learned Judge in Chamber of the High Court, Multan Bench, Multan fell into legal error by holding the view to the contrary. Any departure made from the true object and spirit of law, enacted by the Legislature would defeat the same, which is not permissible under any cannon of justice and principle of law, nor the Courts are having any authority or powers to import their own opinion therein, defeating the clear intention of the Legislature and when the provisions of Ss. 16 to 20 of the C.P.C. stand excluded from the proceedings before the Family Court then, the question of its territorial jurisdiction would never arise, provided that the Family Court where the wife resides, shall have the exclusive jurisdiction over all such matters for the sake of convenience because Rule 6 of the West Pakistan Family Court Rules, 1965 so provides.”

Likewise, serial No.10 in the schedule part-1 exclusively section 5 was added by the Family Courts (Amendments) Ordinance, 2002 (XL of 2002) to the effect that any other matter arising out of the Nikah Nama shall be exclusively triable by the family Court being based upon

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the Golden Principle of interpretation of statute, which reads as:

“The Golden rule is that the words of a Statute must prime facie be given their ordinary meaning. It is yet another rule of construction when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning, irrespective of consequences”.

In this view of the matter, the contention of the husband that the learned Family Court was incompetent to decide the issue relating to the condition contained in column No.17 of the nikahnama is misconceived as the said stipulation forms part of the marital contract between the spouses and the dispute has admittedly arisen out of that very contract; therefore, the only authority to adjudicate upon such an issue vests with the Family Court.

10.Careful perusal of column No.17 of the Nikahnama (Ex.PW1/2) reveals that the husband has bound himself to pay 20 tolas of gold to the wife. The husband, has however raised an objection regarding such payment being treated as dower or any other condition gift etc.

asserting that it could only be paid as deferred dower either on his death or upon dissolution of marriage between the parties. Nevertheless, as discussed above, the entry at serial No.17 of the nikahnama could not be disputed by the husband and its genuineness has duly been proved by the wife. It is pertinent to mention that dower is of two types:

Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

prompt and deferred. The former is payable at the time of nikah or upon demand by the wife, while the latter becomes payable upon the husband’s death or dissolution of marriage. In the present case, neither in the nikahnama (Ex.PW1/2) nor in any other document or the evidence produced of the parties, it has admitted by the wife that the 20 tolas of gold mentioned in column No.17 was intended as deferred dower. Obviously, no condition has been stipulated in the said column of nikahnama except for the simple mention that the husband shall pay 20 tolas of gold to the wife. If the husband claims the same to be deferred dower or a gift or anything else then the onus was upon him to produce convincing evidence in support of such stance, however, the evidence on record does not support his claim.

Therefore, in the absence of any confidence inspiring evidence, it cannot be treated as anything other than part of the dower. Likewise, in the absence of any explicit clarification as to its type, it shall be deemed as prompt dower, payable to the wife upon demand and the institution of the present suit by the wife is amounting to such a demand on her part. It is a settled principle of family jurisprudence that in case of any ambiguity regarding the interpretation of the nikahnama affecting the rights and interests of the spouses, preference shall always be given to the interest and right of the wife. Reliance is placed on the Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

case titled Muhammad Yousaf vs. Huma Saeed and others4, wherein the Hon’ble Supreme Court, while resolving an ambiguity involving the interpretation of the contents of nikahnama particularly its column No.17, held as under:

“If an ambiguity or doubt arises in relation to the terms and conditions of the Nikah Nama, an entry or column thereof, then the benefit ought to go in favor of the wife if there does not exist preponderance of evidence on record to establish that she had been informed of her rights, she understood each column of the Nikah Nama, and she had the freedom to negotiate and settle the terms and conditions out of free consent. In case the columns of the Nikah Nama have been filled by others without her meaningful consultation then a doubt or ambiguity cannot be interpreted against her rights or interests. It is implicit in the expression free consent that the wife, at the time of executing the Nikah Nama, had the freedom to settle the terms and conditions as an informed person competent to enter into a contract. Paternal tendencies of the society and dominance of the male members in relation to deciding the terms and conditions on behalf of the bride has generally been accepted as a cultural and social norm of the society. It places a bride in a disadvantageous position, inevitably adversely affecting her capacity to execute the contract with free consent. Weakness or creation of an ambiguity in a Nikah Nama cannot be interpreted against the interest and rights of a wife if it cannot be established that she had the freedom to settle the terms and conditions and had exercised her free will.”

11.It is worth mentioning here that dower is an essential and obligatory component of a valid marriage contract, constituting the exclusive right and property of the wife. It may be prompt or deferred but where the nature of payment is not specified, the law presumes it to be prompt in

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terms of Section 10 of the Muslim Family Laws Ordinance, 1961. The form or headings of the Nikah Nama in this regard are not conclusive rather it is the intention of the parties that determines the nature of the dower. The concept of dower is intended to ensure respect, equality and financial security for the wife. However, in the present case, as alleged by the husband, no trustworthy or convincing evidence could be produced by the husband in support of his stance. In the case titled Rasheed Ahmad vs. Additional District Judge and 02 others5, in a similar family dispute, it was held that:

“In case in hand, admittedly, the Nikah was performed between the parties, photocopy of Nikah Nama was admitted by husband and wife and there was no objection from any side regarding its execution. Husband had admitted that Nikah Form was written in his presence and he signed over the same but he further stated that the impugned conditions were not written. Husband, however, had not challenged those conditions independently before any forum. Neither husband had filed an application before the concerned union council for the correction of the entries if they were wrongly filled in column 17 nor brought any suit before the competent Court to get the entries corrected, meaning thereby that Nikah Nama was an admitted document by husband. Presumption of truth is attached to the Nikah Nama, but at the same time, if the entries thereof are denied the same can be challenged and the party challenging the entries is under obligation to prove that those entries were not settled between the parties at the time of Nikah. In case in hand, there was no evidence regarding challenging the Nikah Nama. Nikah was performed in the Majlis and all the persons whose names were appearing on the Nikah Nama including the petitioner signed over the same. Keeping in view the sequence of the scheme of Nikah Form, its column 17 was

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condition of dower which can be interpreted as the property belonging to the wife after marriage and under S. 5 of the Family Courts Act, 1964, personal property and belonging of the wife can be claimed by her at any time and the matter is triable by the Family Court.

Thus, in view of the evidence available on record and the failure of the husband to establish or interpret the entry at serial/ column No.17 of the Nikah Nama (Ex.PW1/2) as anything other than prompt dower so as to disentitle the wife from its recovery during the subsistence of the marriage, the suit of the wife was rightly decreed by the learned Family Court and concurred by the learned Appellate Court through the impugned judgment.

12.The factual aspects of the matter have already been discussed in detail by the learned Courts below and it is a settled principle of law that a Constitutional Court cannot interfere with factual findings of the subordinate courts unless such findings suffer from illegality, material irregularity or a jurisdictional defect. Since, none of these elements are present in the instant case, therefore, the impugned judgment of the learned Appellate Court is not open to exception. Reliance may be placed on the case of Khair-ud-Din Vs. Mst. Sabiha and 05 others6, wherein the apex Court has held that the proceedings under the constitutional jurisdiction of High Court were not a

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substitute for an appeal so as to reappraise the evidence recorded by the Family Court. Learned counsel for the parties have not been able to point out any illegality, irregularity or jurisdictional defect in the impugned findings of the learned appellate Court.

13.In light of the above discussion, both these petitions, being devoid of merits, are hereby dismissed, leaving the partis to bear their own costs.

Announced.

Sd/-

JUDGE

Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN