column no 17 nikahnama is the part of Haqmahar. Supreme court case law.
 |
| column no 17 nikahnama is the part of Haqmahar. Supreme court case law. |
سپریم کورٹ نے ہائی کورٹ کے فیصلے کو برقرار رکھتے ہوئے کہا کہ کالم 17 میں بیان کردہ پلاٹ کو مہر کا حصہ سمجھا جائے۔
2022 کی سول پٹیشن نمبر 2673 میں سپریم کورٹ آف پاکستان کا حکم نکاح نامہ (شادی کا معاہدہ) میں شرائط کی تشریح سے متعلق تنازعہ کو حل کرتا ہے۔ اہم مسئلہ یہ تھا کہ نکاح نامہ کے کالم 17 میں بیان کردہ اراضی کو مہر (مہر) کا حصہ سمجھا جائے یا شادی سے متعلق محض ایک خاص شرط سمجھی جائے۔
**کیس کا خلاصہ:**
- محمد یوسف (درخواست گزار) اور ہما سعید (جواب دہندہ) کی شادی 5 مئی 2014 کو ہوئی تھی۔ یہ شادی 18 اکتوبر 2014 کو تحلیل ہو گئی تھی۔
- مدعا علیہ نے مہر، دیکھ بھال، جہیز کے سامان، اور سونے کے زیورات کی بازیابی کا دعویٰ کرتے ہوئے دعویٰ کیا کہ درخواست گزار نکاح نامہ میں بیان کردہ ذمہ داریوں کو پورا کرنے میں ناکام رہا۔
- ٹرائل کورٹ نے مقدمے کا جزوی فیصلہ سنایا، اور دونوں فریقین نے اپیل کی۔ ہائی کورٹ نے مدعا علیہ کو نکاح نامہ کے کالم 17 میں مذکورہ پلاٹ کی منظوری دے دی۔
- درخواست گزار نے ہائی کورٹ کے فیصلے کو سپریم کورٹ میں چیلنج کیا.
**سپریم کورٹ کے نتائج:**
- نکاح نامہ میں مہر اور دیگر شرائط کی وضاحت کے لیے مختلف کالم شامل ہیں۔ کالم 17 پر "خصوصی حالات" کا لیبل لگایا گیا تھا اور اس میں ایک پلاٹ بیان کیا گیا تھا لیکن اس سے متعلق شرائط کی وضاحت نہیں کی گئی تھی۔
- درخواست گزار نے دلیل دی کہ کالم 17 کو مہر کا حصہ نہ سمجھا جائے بلکہ مکان کی تعمیر سے متعلق ایک الگ شرط کے طور پر سمجھا جائے۔
- سپریم کورٹ نے کہا کہ کالم 17 میں بیان واضح تھا اور درخواست گزار کے موقف کی حمایت نہیں کرتا تھا۔ اس نے اس بات پر زور دیا کہ فریقین کے ارادے کو نکاح نامہ کی تشریح میں رہنمائی کرنی چاہیے، نہ کہ صرف کالموں کے عنوانات۔
- عدالت نے نوٹ کیا کہ نکاح نامہ میں کسی بھی ابہام یا شک سے مدعا کو فائدہ پہنچنا چاہیے، خاص طور پر اگر درخواست گزار یہ ثابت کرنے میں ناکام رہا کہ مدعا کو مکمل طور پر آگاہ کیا گیا تھا اور اس نے شرائط سے آزادانہ طور پر رضامندی دی تھی۔
**نتیجہ:**
سپریم کورٹ نے ہائی کورٹ کے فیصلے کو برقرار رکھتے ہوئے کہا کہ کالم 17 میں بیان کردہ پلاٹ کو مہر کا حصہ سمجھا جائے۔ نچلی عدالت کی تشریح کی توثیق کرتے ہوئے چھٹی کی درخواست خارج کر دی گئی۔
**نوٹ:** مزید مدد یا قانونی پوچھ گچھ کے لیے، فراہم کردہ رابطے کی معلومات میں ایک فون نمبر اور بلاگ کی پیروی کرنے اور قانونی حقوق پر اپ ڈیٹس اور تعاون کے لیے متعلقہ چینلز کو سبسکرائب کرنے کی درخواست شامل ہے۔
Must read judgement
The Supreme Court of Pakistan's order in Civil Petition No. 2673 of 2022 addresses a dispute regarding the interpretation of terms in a Nikah Nama (marriage contract). The key issue was whether a plot of land described in Column 17 of the Nikah Nama should be considered part of the dower (Mehr) or merely a special condition related to the marriage.
**Case Summary:**
- Muhammad Yousaf (petitioner) and Huma Saeed (respondent) married on May 5, 2014. The marriage was dissolved on October 18, 2014.
- The respondent filed a suit seeking recovery of dower, maintenance, dowry articles, and gold ornaments, claiming that the petitioner failed to meet the obligations specified in the Nikah Nama.
- The trial court partially decreed the suit, and both parties appealed. The High Court granted the respondent the plot mentioned in Column 17 of the Nikah Nama.
- The petitioner challenged the High Court's judgment in the Supreme Court.
**Supreme Court's Findings:**
- The Nikah Nama includes various columns for specifying dower and other conditions. Column 17 was labeled "special conditions" and described a plot but did not specify conditions related to it.
- The petitioner argued that Column 17 should not be considered part of the dower but as a separate condition related to the construction of a house.
- The Supreme Court held that the description in Column 17 was explicit and did not support the petitioner's stance. It emphasized that the intent of the parties must guide the interpretation of the Nikah Nama, not merely the headings of columns.
- The court noted that any ambiguity or doubt in the Nikah Nama should benefit the respondent, especially if the petitioner failed to prove that the respondent was fully informed and had freely consented to the terms.
**Conclusion:**
The Supreme Court upheld the High Court's decision, affirming that the plot described in Column 17 should be considered part of the dower. The petition for leave was dismissed, affirming the lower court's interpretation.
**Note:** For further assistance or legal inquiries, the contact information provided includes a phone number and a request to follow the blog and subscribe to related channels for updates and support on legal rights.
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Mr. Justice Amin-ud-Din Khan
Mr. Justice Athar Minallah
CIVIL PETITION NO.2673 OF 2022
(Against the judgment dated 31.5.2022 of
the Lahore High Court, Rawalpindi Bench
passed in Writ Petition No.34/2017
Muhammad Yousaf
…Petitioner(s)
Versus
Huma Saeed and others
…Respondent(s)
For the petitioner(s):
Khawaja Muhammad Imtiaz, ASC.
Mr. Anis Muhammad Shahzad, AOR
For respondent No.1:
Ms. Farhana Qamar, ASC
Syed Rifaqat Hussian Shah, AOR
Other respondents:
Not represented.
Date of hearing:
06.04.2023
ORDER
Athar Minallah, J.- Muhammad Yousaf (‘petitioner’) and
Huma Saeed (‘respondent’) had tied the knot on 05.5.2014. They
were 49 and 26 years old, respectively, at the time when the contract
of marriage (‘Nikah Nama’) was executed. It was duly registered by
the Nikah Registrar as required under the Muslim Family Laws
Ordinance, 1961 (‘Ordinance of 1961’). The respondent was the
petitioner's second wife and the earlier marriage was subsisting when
they had entered the marriage contract. The marital relations
between the partners became strained and the marriage ultimately
ended when it was dissolved on 18.10.2014, pursuant to the
pronouncement of divorce by the petitioner. The respondent filed a
suit for recovery of dower, maintenance, dowry articles and gold
ornaments because the petitioner was refusing to fulfill his
obligations in accordance with the terms settled in the Nikah Nama.
CP.2673/22
2
The latter contested the suit and the trial court, after framing seven
issues and granting opportunity to the parties to adduce evidence,
partially decreed the suit vide judgment and decree dated
02.02.2016. The petitioner, as well as the respondent, challenged the
decree by preferring separate appeals. The appeal preferred by the
petitioner was partially allowed while that of the respondent was
dismissed, vide judgment and decree dated 15.10.2016. Both the
parties invoked the jurisdiction of the High Court under Article 199 of
the Constitution of the Islamic Republic of Pakistan, 1973
(‘Constitution’). The High Court declared the respondent entitled to
the plot described in column 17 of the Nikah Nama and the relief
sought to this extent was granted. The petition was thus accordingly
allowed. The petitioner, through this petition, has sought leave
against the judgment dated 31.5.2022 of the High Court. The
controversy is now confined to the right of the respondent regarding
entitlement to the plot described in column 17 of the Nikah Nama.
2.
We have heard the learned counsels. As noted above, the
sole controversy is regarding the intent of the parties in respect of the
plot described in column 17 of the Nikah Nama. The learned counsel
for the petitioner has argued that the plot described in column 17 of
the Nikah Nama could not have been construed as part of the dower
or treated as a gift because the title/heading of the column is 'special
conditions', thus making it distinct from the other columns which
have been specifically provided for the purposes of settling the terms
of dower. It was the petitioner’s stance before the trial court that the
parties had intended that a house was to be constructed on the plot
and that the respondent would be entitled to live in it during
subsistence of the marriage. The counsel has stressed that column
CP.2673/22
3
17 of the Nikah Nama must be construed in accordance with its
heading/title, distinct from columns 13 to 16.
3.
The description of the plot in column 17 of the Nikah Nama is
explicit and not disputed. However, there is no condition stipulated in
the column except the description of the plot. The petitioner had filed
his written statement in response to the plaint and had expressly
admitted the description of the property but he had taken the stance
that the plot was meant for the construction of a house and the
respondent was to live in it for as long as the marriage subsisted. A
plain reading of the description of the property, as mentioned in
column 17, does not indicate nor supports such a stance. If such an
interpretation is accepted then the property would not form part of
the dower separately mentioned in columns 13 to 16 of the Nikah
Nama. The copy of the Nikah Nama has been attached with the paper
book before us at pages 87 to 88 and no condition has been
stipulated in column 17 except describing the property. The question
that has arisen for our consideration is how the terms and conditions
stipulated in a Nikah Nama should be interpreted and if there is
doubt and ambiguity regarding the intent of the parties, how can it
be resolved.
Nikah Nama; a civil contract.
4.
The Nikah Nama contains the terms of the Nikah i.e. the
contract between a man and a woman, having the object to enable
them to legitimately live together and enjoy all the rights as husband
and wife. The terms and conditions are meant to secure the rights
and interests of both the parties; the husband and the wife. The
Nikah is a civil contract and its essential requirements ‘rukn’, also
called a ‘sighah’, are offer, ‘Ijab’ and acceptance, ‘qabool’. The offer
CP.2673/22
4
and acceptance would be valid if made by parties who are competent
to enter into a valid marriage contract. The offer and acceptance can
either be made expressly and directly by the two contracting parties
or through their duly appointed agents or messengers. The most
crucial factor is existence of free consent i.e. absence of coercion,
undue influence, fraud, misrepresentation or mistake. It is settled
law that a presumption of truth is attached to the Nikah Nama and it
enjoys the status of a public document. Likewise, there is a strong
presumption of truth regarding the entries recorded in the Nikah
Nama. In exercise of powers conferred under section 11 of the
Ordinance of 1961, the competent authority has made the West
Pakistan Rules under the Muslim Family Laws Ordinance, 1961 (‘the
Rules of 1961’). The matters relating to registration of marriages and
the issuance of licenses to Nikah Registrars are regulated under the
Rules of 1961. Form II of the Rules of 1961 has prescribed the form
of Nikah Nama and its entries. The titles of columns 13 to 16 relate to
'dower' while the heading of column 17 is 'special conditions, if any'.
As will be explained later, neither the prescribed form nor the
headings of the entries contained therein are conclusive for
ascertaining the intent of the two parties to the marriage contract.
But before we examine this aspect it would be beneficial to
understand the significance of 'dower' in the context of a marriage
contract'
'Dower'; right of the wife
5.
‘Dower’ is obligatory because it is an essential requirement of a
valid marriage contract. The validity of marriage remains effective
even if the dower has not been expressly mentioned in the marriage
contract because, in such an eventuality, reasonable dower ‘Mehr-ul-
CP.2673/22
5
Misel’ is presumed. Dower is distinct from a gift, which is over and
above it. Dower is given by the husband to the wife and its
determination is subject to the consent of the wife, since it is her
exclusive right. This right of the wife is relatable to a thing which has
marketable value. It can be in the form of cash or property or both. It
may be prompt or deferred. In case the parties do not specify the
nature of the payment of dower it is presumed to be prompt as
provided under section 10 of the Ordinance of 1961. The dower
becomes the exclusive property of the wife and it is given by the
husband as a symbol of respect for her. It has many benefits for both
the parties because it ensures stability in the relationship. It is an
acknowledgment of equality of the wife because it recognizes her right
to own property. It also serves the purpose of ensuring that the right
to divorce is not abused by the husband. Dower has the benefit of
serving as a financial security in the case of dissolution of marriage
or in the event of the passing away of the husband. Its determination
at the time of the execution of the Nikah Nama must necessarily be
guided by an informed understanding of the bride regarding her
rights. The freedom to negotiate and settle the terms by the bride,
therefore, becomes crucial. The form of Nikah Nama nor its headings
are conclusive or sacrosanct. It is the intent of the parties which
would be the determining factor.
Interpretation of the terms of Nikah Nama;
6.
As noted above, a Nikah Nama is in the nature of a civil
contract and it contains the terms agreed upon by the parties, the
husband and the wife. It is, therefore, obvious that the foundational
principle of Nikah is the free consent of the contracting parties, which
inherently involves the informed understanding of each party
CP.2673/22
6
regarding his or her rights and freedom to negotiate and settle the
terms and conditions. The bride is, therefore, entitled to negotiate the
terms of dower or at least take informed decisions in the context of its
determination before the contract is executed. The entries in the
Nikah Nama, described in form II of the Rules of 1961, are not
conclusive nor can the intention of the contracting parties be
ascertained merely on the basis of its headings. This Court has held
that Nikah Nama is the deed of marriage contract entered into
between the parties and its clauses/columns/ contents are to be
construed and interpreted in the light of the intention of the parties.
The headings, therefore, are not sufficient to determine the intention
of the two parties to the Nikah Nama1. It is a settled law that any
ambiguity in a contract is to be resolved by ascertaining the real
intention of the parties. In order to interpret the terms of a contract,
the court has to first ascertain the intention of the parties. The
contract has to be read as a whole and the words are to be taken in
their literal, plain and ordinary meaning. The court cannot imply,
while interpreting the contract, something that is inconsistent with
its express terms. Moreover, a stipulation not expressed in the
written contract can also not be applied merely because it may
appear to be reasonable to the court2.
7.
The courts, while interpreting the contents and terms and
conditions of a Nikah Nama, also have to take into consideration the
factor of free consent of the bride and her freedom to settle the terms
and conditions as a person having an informed understanding of her
rights. This is crucial in the context of the social and cultural norms
generally prevalent in the society. If an ambiguity or doubt arises in
1Haseen Ullah v. Mst. Naheed Beugm & others (PLD 2022 SC 686)
2Housing Building Finance Corporation v. Shahinshah Humayun Cooperative House
Building Society and others (1992 SCMR 19)
CP.2673/22
7
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 noted that the rule of
contra proferentem, known as the rule of interpretation against the
draftsman, is a recognized principle of contractual interpretation
which provides that in case of an ambiguous promise, agreement or
term, the preferred construction should be the one that works
against the interests of the party which had drafted the contract.
Nonetheless, an ambiguity cannot be construed against the interests
and rights of the wife except when it has been established on the
principle of balance of probabilities that she was informed of her
rights, understood each column of the Nikah Nama and she had the
freedom to negotiate and settle the terms and conditions out of free
consent. 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. As an illustration, reference may be made
to the social and cultural norms and tendencies recently highlighted
CP.2673/22
8
in a survey report titled “Diagnostic Study of Nikah Namas in Punjab:
A Review of Woman’s Marriage Rights’. The report has been published
by the Centre for Human Rights and Musawi with the support of the
National Commission for Human Rights. The findings of the
diagnostic studies manifest the adverse effects in relation to the
rights of women at the time of execution of the marriage contract due
to the entrenched social and cultural norms and tendencies. The
attempts to suppress child or forced marriages by withholding
information, lack of knowledge, training and personal beliefs of the
Nikah Registrars and the influence of male members of the family are
factors which can adversely affect the freedom of the bride and her
free consent in relation to settling the terms and conditions of the
marriage contract. The consent of the wali/wakeel may also take
precedence over that of the bride. Social and cultural norms and
practices may profoundly affect the rights of the brides by depriving
their ability to independently decide the terms and conditions by
exercising free consent. It, therefore, becomes crucial for a court to be
satisfied, while interpreting the contents of the columns of a Nikah
Nama, that the wife, at the time of its execution, understood each
column and was informed of her rights and that she had exercised
her free consent while settling the terms and conditions. It is settled
law that no party can benefit from introducing or creating an
ambiguity. The 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.
8.
In the case before us, the entries were recorded in a printed
form of Nikah Nama. The columns no 13 to 16 relate to dower.
Column 13 refers to dower in cash while the headings of columns 14,
CP.2673/22
9
15 and 16 could be construed as ambiguous regarding dower in the
form of immovable property. Moreover, the heading of column No.16
could also be misconstrued. The heading of column no.17 describes
it as 'special conditions'. As noted above, the description of the
property is explicit but it does not mention any condition. It is not the
case of the petitioner that the columns were filled by the respondent
or pursuant to meaningful consultation carried out with her before or
at the time of execution of the Nikah Nama. No such evidence has
been brought on record. The stance taken by the petitioner is not
supported by the entry. He has asserted that he understood the
purpose of column no. 17 but did not attempt to describe the
condition in conformity with the stance taken by him during the trial
of the suit. The onus was on the petitioner to establish that the
property described in column no. 17 was not meant nor intended by
the parties to be part of the dower. The ambiguity, if any, cannot be
construed against the interests and rights of the respondent in the
facts and circumstances of the case before us. Moreover, accepting
the stance of the petitioner would amount to reading in the Nikah
Nama something not provided therein. The courts cannot construe
the Nikah Nama and its entries as having the effect of applying a
stipulation not expressly provided therein.
9.
For the above reasons, we are sanguine that the High Court
has correctly interpreted the columns of the Nikah Nama and,
therefore, no interference is required with the impugned judgment.
Consequently, no case is made out for grant of leave and, therefore,
the petition is accordingly dismissed.
Judge