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| Pld 2026 sc 20 |
مہر نقد اور جائیداد — نکاح نامہ کے کالم 13 اور 16 کی تشریح
تمہید
پس منظر
سپریم کورٹ کا قانونی تجزیہ
1️⃣ مہر کی قانونی حیثیت
2️⃣ کالم 13 اور 16 کا فرق
3️⃣ فریقین کی نیت کا اصول
4️⃣ رجسٹرڈ نکاح نامہ کی حیثیت
5️⃣ جائیداد بطور مہر کی ملکیت
فیصلہ
Must read judgement.
PLD 2026 Supreme Court 20
Present: Syed Mansoor Ali Shah, Athar Minallah and Aqeel Ahmed Abbasi, JJ
Mst. FAKHRA JABEEN and others---Petitioners
Versus
WASIF ALI and others---Respondents
Civil Petitions Nos. 768 and 827 of 2022, decided on 28th November, 2024.
(Against judgment dated 13.12.2021 of the Lahore High Court, Rawalpindi Bench passed in W.P. No. 2111 of 2013):
(a) Family Courts Act (XXXV of 1964)--
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- Sched-Muslim Family Laws Ordinance (VIII of 1961), S.5-Dower, recovery of of---Columns-13 -13 and 16 of Nikanama-Interpretation-Mentioning of dower amount in Column-13 and immovable property in Column-16-Family court held the wife entitled to dower mentioned in Column No.16 in the form of property; Appellate Court found her entitled to dower amount mentioned in Column-13 and property in Column-16; whereas High Court held that claim of dower mentioned in Column-16 was in lieu of the amount mentioned in Column-13, thus, if the latter obligation was discharged, then the wife was not entitled to recover the dower mention in Column 16-Validity-If the interpretation of the High Court is accepted then dower agreed to be paid in cash would have the effect of virtually making dower in other forms such as immovable or movable property redundant, which would negate the basic concept of dower Le. parties out of free will agreeing to dower in any form provided it has a marketable value-Parties may, therefore, afradin e to dower being paid in in cash an in addition to to and distinct from dower in any other form, such as as immovable or movable property--parties, which would negate the very concept of dower-High Court had virtually rendered the right to dower agreed between the parties in the form of immoveable property as redundant by subjecting its effectiveness to fulfilling the obligation recorded under Column-13-Dower is obligatory and it could be anything which has a marketable value-1 value-It can be in in the form of cash or property or both---Parties may agree to dower in the form of immovable property in addition to cash--Entry in Column-13 is definitely not a rider to entries in Columns-14, 15 and 16 as was held by High Court-Appellate court had correctly appreciated that the evidence and its interpretation regarding the entries in columns-13, 14 and 16 was in accordance with what the parties had intended at the time of execution of the Nikahnama-Judgment of the High Court was, therefore, set-aside and the judgment and decree of the appellate court was restored--Civil petition for leave to appeal filed by the wife was converted into appeal and allowed, while in the one filed by the husband, leave was refused and the petition was dismissed.
Mst. Iram Shahzadi v. Muhammad Imran-ul-Haq and others 2019 MLD 112: Attorney General v. Mst. Amna-Tuz-Zahra 2011 CLC 726 and Fawad Ishaq and others v. Mehreen Mansoor and others PLD 2020 SC 269 ref.
(b) Family Courts Act (XXXV of 1964)
- 5, Sched.-Muslim Family Laws Ordinance (VIII of 1961), S.5-Dower-Columns Nos.13 and 16 of Nikahama-Distinction. Expressions used in Column No.16 in lieu of", "whole" and "portion"-Scope-Column 13 is titled 'amount of dower', which is generally construed as referring to dower in the form of amount of cash as being distinct from its other forms and does not refer to nor is construed as the value value of the total dower agreed upon by the parties in all its forms because the parties may have intended and agreed to giving dower in its different forms ie. cash as well as immovable property-Urdu version uses the expression 'raqam', which could he construed as cash only-Likewise, the headings of Columns Nos. 14 and 15 may also be understood as having reference to Column 13 and being distinct from Column 16-It is obvious from a plain reading of the expressions used in the heading of Column No.16 that it specifically refers to dower in the form of property---Expression 'in lieu' has been used in the context of the 'whole' or any portion' of the dower-Dower may only be agreed in the form of property and, therefore, herefore, it it w would amount to giving such a property in lieu of the whole dower, however, the property may also be agreed as portion of the whole dower and in such an eventuality it has been intended to be given in addition to dower in some other form eg. cash-Expression in lieu' has definitely not been used with reference to the amount of dower recorded in Column 13 as has been erroneously construed by the High Court-Column 16 further requires the recording of specification' and 'valuation' of the property agreed between the parties as dower, which further highlights that the column is specifically meant for recording the dower in the form of property, whether agreed upon to be part or whole of the dower.
(c) Muslim Family Laws Ordinance (VIII of 1961)-
-S. 5-Qanun-e-Shahadat (10 of 1984), Art. 129, illustration (e) & Chap.VI [Arts. 102 to 110]-Registered Nikahnama, nature of Evidentiary value-Scope-Significance of the Nikahnama is evident from the fact that a presumption of truth is attached to it and, once it is registered, it enjoys the status of a public document---Likewise, there is a presumption of truth regarding the entries recorded in the Nikahnama-Nikahnama is a civil contract and it consists of terms agreed upon by the parties-Foundational principle of Nikah is the free consent of the contracting parties.
(d) Muslim Family Laws Ordinance (VIII of 1961)--
-5.5-Dower (mehr on demand)--Ambiguity qua entries in Columns Nos.13 and 16 of Nikahnama-Determining factor-Headings Columns of the form of Nikahnama---Scope-Neither the headings nor the Columns of the form of the Nikahnama, prescribed by the Rules under the Muslim Family Laws Ord Laws Ordinance, 1961, are are conclusive conclusive or sacrosanct, rather it is the intent of the parties which would be the determining factor-Any ambiguity in a contract is to be resolved by ascertaining the real intention of the parties and in order to interpret the terms of contract, the court has to first ascertain the intention of the parties-Headings of the prescribed form of the Nikahnama are, therefore, guidance of the parties and they do not enjoy the status of conclusively determining the intention of the parties.
Haseen Ullah v. Mst. Naheed Begum and others PLD 2022 SC 686 and House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR 19 rel.
(f) Muslim Family Laws Ordinance (VIII of 1961)-
-Ss. 5(2A), 5(3) & S(4)(1)--Form of Nikahnama-Correctness of entries-Duty of Nikah Registrar-Scope-Failure to perform such duty-Effect-Correctness of the entries also depends on the competence, knowledge and experience of the licensed Nikah Registrar---Nikah or marriage contract may have been performed in the absence of a licensed Nikah Registrar as is contemplated under $.5(3) of the Muslim Family Laws Ordinance, 1961 (Ordinance)---Subsection (2A) was inserted in S. 5 of the Ordinance through the Muslim Family of nily Laws (Amendment) Act, 2015, in the Province of Punjab, which makes it a mandatory duty of the 1 duty of the Nikah Registrar or any other person who solemnizes the nikah to accurately fill all the columns of the Nikahnama form with the specific an answers of the bride or the bridegroom-Failure to fulfill this onerous obligation attracts penal consequences which have been expressly provided under S.5(4)(1) of the Ordinance Headings and expressions used in the prescribed form are, therefore, not free from being misconstrued and grossly misinterpreted, particularly if the Nikah Registrar or any other person solemnizing the Nikah lacks experience, knowledge or proper understanding of the principles governing the marriage contract..
(g) Family Courts Act (XXXV of 1964)-
S. 5, Sched.Muslim Family Laws Ordinance (VIII of 1961), S. 10-Dower-Meaning, forms and scope-Marriage in absence of dower-Validity-Existence of dower-Presumption-Dower is a mandatory condition for a valid and effective marriage contract---Validity of a marriage remains unaffected even if the parties have not expressly mentioned it in the marriage contract because, in such eventuality, reasonable dower, Mehr-ul-Misel, is presumed-Dower is given by the husband to the wife and its determination would be subject to consent of the wife-Dower is the exclusive right of a bride, which is relatable to a thing which has marketable value---It can either be in the form of cash or property or both-It may be prompt or deferred-If the parties have not specified the nature of the payment of dower, then it is presumed to be prompt as provided under S. 10 of the Ordinance-Dower is an essential condition for giving effect to a valid marriage contract-It becomes the exclusive property of the wife because it has many benefits for both the parties-It is financial security for the wife and its determination must be guided by informed understanding of the bride regarding her rights-An unconditional declaration of dower in the form of immovable property leads to creating the exclusive ownership of the bride upon the execution of the Nikahnama and she cannot be deprived of her rights relating thereto in any manner--Dower in the form of cash is distinct from forms.
(h) Muslim Family Laws Ordinance (VIII of 1961)---
-S. 5-Nikahnama-Terms and conditions-Interpretation---"Whether, in cases of ambiguity, the rights recorded in the relevant columns should be interpreted in favour of the husband on the ground that he bears the financial liabilities?"--Held: Such an understanding is contrary to the concept and the fundamental principles relatin relating to a Nikah Le. a marriage contract-Law enforced in Pakistan relating to marriage contracts explicitly recognizes the rights of both the parties, the bride and the groom, to give free consent in order to enter into a contractual bond of marriage and the freedom to negotiate and settle the terms and conditions-Both the contracting parties must have informed understanding of their respective rights and the entries which are required to be recorded in the Nikahnama-Court, while deciding a dispute and interpreting the terms and conditions of the parties, has to take into consideration whether the free consent or free will of the parties was compromised on account of the attending circumstances, such as cultural and social influences.
M. Waqar Rana, Advocate Supreme Court for Petitioner (in C.P. No. 768 of 2022).