PLJ 2012 Lahore 372
[Bahawalpur
Bench Bahawalpur]
Present: Abdus
Sattar Asghar, J.
Mst. SHAISTA
SHAHZAD--Petitioner
versus
ADDITIONAL
DISTRICT JDUGE and 3 others--Respondents
W.P.
No3.
585 and 1439 of 2009, BWP, decided on 20.1.2012.
West
Pakistan
Family Courts Act, 1964--
----S. 5 &
Schedule 11--Constitution of Pakistan,
1973, Art. 199--Constitutional Petition--Columns of Nikahnama--Dower amount
paid at time of nikah through Column Nos. 13 & 4 of Nikahama--Column Nos.
15 & 16 of Nikahnama that golden ornaments and a house were to be paid at
time of Rukhsati--Column No. 19 of Nikahnama contains condition that husband
will neither contract second marriage nor he will divorce--Rukhsati was never
held--Suit for recovery of dower was dismissed, however, claim for recovery as
additional dower was decreed in her favor--Suit for recovery of maintenance
allowance was also decreed--Appeal was partly allowed judgments and decrees
passed by Courts below were invoked constitutional jurisdiction of High
Court--Petitioner was not entitled to deferred dower as marriage was never
consummated--Condition of additional amount was neither enforceable nor Family
Court had got jurisdiction to pass any decree--Question of--Whether such sort
of claim falls within meaning of personal property and belonging of the wife
enumerated of Schedule 11 to S. 5 of Family Courts Act--Validity--Family Court
has no jurisdiction to entertain the petitioner's suit for recovery of
conditional amount as incorporated in Column No. 19 of Nikahnama--Appellate
Court had rightly set aside findings of Family Court lacking jurisdiction in
such regard and did not call for interference by constitutional jurisdiction of
High Court--Admittedly Nikahnama was duly signed by her, therefore, at that
stage plea that dower amount was not paid to her at time of Nikah was devoid of
any force--Petitioner was not entitled to claim any maintenance allowance was
also devoid of any force--Parties had no case at all to invoke constitutional
jurisdiction of High Court to impugn the judgment--Petition were dismissed. [P. ] A, B & D
2008
SCMR 186, 2010 YLR 423, 2010 YLR 2466 & PLD 2011 SC 260, ref.
Muhammadan Law--
----A valid
Nikah under Muhammadan Law confers upon wife the right of maintenance and
imposes on her obligation to be faithful and obedient to her husband for
performance of marital duties--After recitation of Nikah petitioner never
refused to effect union and perform merital obligation rather husband refused
to obtain rukhsati on pretext that has to complete his studies and ultimately
divorced petitioner--Trial Court had rightly decreed the suit for maintenance
allowance from date of Nikah till date of divorce. [P. ] C
Mr.
Hameed-uz-Zaman, Advocate for Petitioner.
Mr. Abdul Jaleel
Khan, Advocate for Respondents 3-4.
Date of hearing:
20.1.2012.
Order
By virtue of
this single order I intend to dispose of the instant writ petition as well as
Writ Petition No. 1439/2009/BWP "Mohsin Raza vs. Shaista Shahzad
etc." both arising out of the judgments dated 04.07.2008 and 23.12.2008
passed by the learned Judge Family Court and the learned Additional District
Judge, Bahawalpur,
respectively.
2. Brief facts leading to these petitions are
that Nikah of Shaista Shahzad (to be called hereinafter as petitioner) and
Mohsin Raza (to be called hereinafter as respondent) was solemnized on
25.01.2005 in lieu of dower amount of Rs.300,000/- paid at the time of Nikah,
as revealed through Columns No. 13 and 14 of the Nikahnama. Columns No. 15 and
16 of the Nikahnama reveal that golden ornaments weighing 10 tolas and a house
situated in Mohallah Aamkhas Bahawalpur valuing Rs.200,000/- were to be paid at
the time of Rukhsati. Column No. 19 of the Nikahnama contains a condition that
the husband will neither contract second marriage nor he will divorce the
petitioner, otherwise he will pay a sum of Rs.200,000/- to the petitioner apart
from dower. Record further reveals that Rukhsati was never held and this
marriage was not consummated up till 11.08.2007 when the respondent divorced
the petitioner. Consequently, petitioner lodged a suit for recovery of dower as
well as additional amount of Rs.200,000/-. She also
instituted another suit for recovery of maintenance allowance from the date of
marriage till the date of divorce as well as of Iddat period. Both the suits
were resisted by the respondent with the contention that the dower amount of
Rs.300,000/- had been paid to the petitioner at the time of Nikah; that since
Rukhsati never took place, therefore, she is not entitled to the deferred
dower; that parents of the petitioner themselves refused to give Rukhsati and
demanded for divorce whereupon he divorced her on 14.05.2007 through
Conciliation Council which became effective on 11.08.2007 vide certificate
issued by the Council, therefore, she is not entitled to claim any maintenance
allowance from him.
3. Record further reveals that the learned Judge
Family Court consolidated both the suits, framed issues on the basis of
divergent pleadings of the parties and after recording their evidence dismissed
the suit for recovery of dower, however, her claim for recovery of Rs.200,000/-
as additional dower was decreed in her favour and against the respondent. Her
suit for recovery of maintenance allowance was decreed in her favour against
the respondent at the rate of Rs.2000/- per month from the date of Nikah i.e.
25.01.2005 till the date of divorce i.e. 14.05.2007 as well as for Iddat period
of three months through a consolidated judgment dated 04.07.2008.
4. Both the parties being aggrieved of the
impugned judgment and decree dated 04.07.2008 passed by the learned Judge
Family Court preferred separate appeals before the learned Additional District
Judge, Bahawalpur.
The learned Additional District Judge after providing opportunity of hearing to
the parties through a consolidated judgment dated 23.12.2008 partly allowed the
appeal lodged by the respondent and dismissed the petitioner's suit for
recovery of dower as well as additional dower of Rs.200,000/-. By virtue of the
same judgment the learned Additional District Judge also dismissed the appeal
of the respondent against the decree for maintenance allowance passed in favour
of the petitioner.
5. Both the parties being aggrieved of the
impugned judgments and decrees passed by the learned Courts below have invoked
the constitutional jurisdiction of this Court through the aforementioned writ
petitions alleging that the said impugned judgments are against law and facts,
without lawful authority, untenable in the eye of law and liable to be set
aside.
6. It is argued by the learned counsel for the
petitioner that she was always willing to join the respondent as his lawfully
wedded wife to perform her marital obligations, whereas the respondent himself
delayed the ceremony of Rukhsati on one pretext or the other and ultimately
divorced her, therefore, she is entitled to the dower fixed at the time of
Nikah as well as additional sum of Rs.200,000/- which he is bound to pay on
account of divorce at his own accord in terms of conditions agreed between the
spouses, besides maintenance allowance, duly incorporated in the Nikahnama. He
has also relied upon Muhammad Aslam vs. Mst. Fateh Khatoon (1969 SCMR 818),
Nasrullah vs. District Judge, Mianwali and 2 others (PLD 2004 Lahore 588) and Muhammad Masood Abbasi vs.
Mst. Mamona Abbasi (2004 YLR 482) [Lahore].
7. On the other hand, learned counsel for the
respondent has argued that dower fixed to the tune of Rs.300,000/- at the time
of Nikah had been promptly paid as reveals through entries in Columns No. 13
and 14 of the Nikahnama; that the petitioner is not entitle to the deferred
dower as the marriage was never consummated. He added that condition of
additional amount of Rs.200,000/- mentioned in Column No. 19 of the Nikahnama
in the event of divorce is neither enforceable nor the Family Court has got the
jurisdiction to pass any decree in this regard. In support of his arguments, he
has relied upon Muhammad Bashir Ali Siddiqui vs. Mst. Sarwar Jahan Begum and
another (2008 SCMR 186), Muhammad Amjad vs. Azra Bibi and 2 others (2010 YLR
423) [Lahore], Muhammad Yaqoob vs. Mst. Siani Bibi alias Shamma and 2 others
(2010 YLR 2466) [Lahore] and Syed Mukhtar Hussain Shah vs. Mst. Saba Imtiaz and
others (PLD 2011 S.C. 260).
8. I have given patient hearing to the learned
counsel for the parties and perused the record.
9. At the outset, I take an opportunity to
reproduce the dictums laid down in the afore-noted citations relied upon by the
learned counsel for the parties.
10. In the case of Muhammad Aslam (1969 SCMR
818), Mst. Fateh Khatoon respondent had filed a suit for recovery of Rs.2000/-
as damages for breach of contract executed at the time of marriage including a
clause that if Muhammad Aslam violates any of the terms stated in the agreement
he will pay Rs.2000/- as damages. Subsequently he contracted a second marriage,
turned out his first wife from his house and later on divorced her. The main
contention of Muhammad Aslam was that the condition mentioned in the agreement
founded against Section 23 of the Contract Act and as such the plaintiff was
not entitled to claim any damages for breach of the said contract. The learned
trial Court decreed her suit which was upheld up to the second appellate Court.
Muhammad Aslam defendant sought special leave to appeal before the Hon'ble
Supreme Court. The Apex Court
dismissed the petition for special leave to appeal with the following
findings:--
"The
learned Single Judge of the High Court has, in our opinion, rightly come to the
conclusion that at least some of the conditions laid down in the agreement were
enforceable in law and as such the plaintiff was entitled to claim a reasonable
compensation for breach of those conditions of the agreement. The learned
Single Judge has further found that the defendant had not paid the agreed
amount of Rs.50 per month as maintenance for about nine years. In these
circumstances, it cannot be said that the amount of Rs.2,000
which was awarded as damages, was excessive or unconscionable. We, therefore,
see no ground for interference with the judgment and decree of the High
Court."
11. In the case of Nasrullah (PLD 2004 Lahore 588), wife lodged
a suit for recovery of Rs.200,000/- under the terms of
Nikahnama as compensation for divorce pronounced by her husband Nasrullah
without any justification. The suit was resisted on the plea that Family Court
lacks jurisdiction to adjudicate upon the matter. The learned trial Court
dismissed the suit with regard to the condition. On appeal, learned District
Judge granted a decree of Rs.200,000/- in favour of
the wife, which was impugned before this Court through writ petition under
Article 199 of the Constitution. The writ was dismissed in limine with the
following observations:--
"Now I find
that Schedule to the Family Court Act, 1964 was amended on 1.10.2002 and
following Item No. 9 was added: "9. Personal property and belonging of a
wife". Now the said condition by all means vests the
respondent lady with a right to bring an action against the petitioner to claim
the said amount upon proof that she was divorced without any reason
attributable to her. This being so, the respondent lady is vested with a
right of action or what is termed as "actionable claim" in the
Transfer of Property Act, 1882. Now the moment the said condition becomes
operative the petitioner became indebted to the respondent in the said amount.
Even if such debt or beneficial interest so accruing is conditional or
contingent, falls within the meaning of actionable claim which is a property
and transferable as such. In my humble opinion claim of respondent wife to the
said amount accruing to her upon an unjustified divorce by all means a property
and clearly falls within Item No. 9 of the Schedule read with Section 5 of
Family Court Act, 1964.
In view of the
said clear statutory provisions it cannot be said that the learned District
Judge acted without lawful authority while decreeing the said claim of
Respondent No. 3. The writ petition is dismissed in limine."
12. In the case of Muhammad Masood Abbasi (2004
YLR 482), it was held as follows:--
"9. Form of
Nikahnama is prescribed under the Family Laws Ordinance and is therefore,
indicative of the fact that the relevant law treats those columns as lawful.
Column No. 19 of Nikahnama, relating to any restriction imposed on the
husband's right of divorce, with a view to safeguard the interest of the wife,
cannot be therefore deemed as unlawful. It is of no legal significance or
consequence if the said condition/restriction was mentioned in Column No. 18
instead of Column No. 19 of the Nikahnama Exh.P.A.
10. It is true
that restriction on husband's right to divorce the wife is not provided under
the Family Laws or rules framed there under but it is also true that there is
no provision in the aforesaid laws or rules that such restriction is void.
11. Under
Islamic Law marriage is a civil contract and the husband has a right to divorce
his wife whenever he desires without assigning any cause.
12. To preserve
the marriage contract and to safeguard the interest of the wife against its
unjustified termination by the husband, if any, stipulation is made in the
Nikahnama whereby the husband agrees to pay some damages in the event of
divorcing the wife without any just cause, such stipulation is neither against
injunction of Islam nor against public policy. It is true that Islam allows
husband to divorce his wife without assigning any cause but it is equally true
that Islam also approves preservation and protection of marriage and does not
approve unjustified exercise of this right by the husband which certainly leads
to innumerable social problems for the divorcee and the children which
consequently has an adverse impact on the society as well. By imposition of
such condition, right of divorce of the husband is neither taken away nor is
restricted in the sense that he can still divorce the wife in spite of the
condition but in case he divorces her without any reasonable cause or
justification he would be liable to pay the agreed amount as damages so that
the destitute divorcee and children may make some arrangement for their food
and shelter for the time being.
13. Condition for payment of damages to the wife
in the event of divorcing her without any cause or justification is not against
public policy but is rather in conformity with the same as it discourages
unjustified divorces which result in broken homes and endless social and
economic problems for the divorcee, children and the society as well.
20. Right of divorce was exercised by the
petitioner, it was therefore, for him to show reasonable and just cause for
exercising that right, in order to escape the liability of damages. Nothing was
produced on record by the petitioner to prove that he had divorced the
respondent on account of some just and reasonable cause. He was therefore,
rightly held liable under the condition contained in Column No. 18 of the
Nikahnama.
25. A perusal of the impugned judgment shows that
it is entirely reasonable, conclusions drawn are based on evidence, are
supported by plausible reasoning and the judgment does not suffer from any
jurisdictional infirmity. It is therefore, not open to interference in
revisional jurisdiction.
26. Resultantly finding
no merit in this Civil Revision, it is accordingly dismissed in limine."
13. In the case of Muhammad Bashir Ali Siddiqui's
(2008 SCMR 186), the Hon'ble Supreme Court observed as under:--
"3.
Contention raised on behalf of the petitioner is that learned Family Judge as
well as the learned Judge of Sindh High Court failed to take into account
paragraph 17 of the Nikahnama, the provisions of which have already been
mentioned above. According to him it was incumbent upon the family Court to
award Rs.2,50,000 while granting decree by way of
Khula in favour of petitioner. When confronted with the question as to whether
parties could place restriction on their respective rights given to them by
Shariat Law, Mr. Akhlaq Ahmed Siddiqui was unable to advance any plausible
ground. His only contention was that such condition was embodied in the
Nikahnama by way of safety and for prolongation of marriage contract, as it
would deter both the parties from bringing an end to the marriage contract.
This contention to say the least is absolutely frivolous as it is against the
basic principle of law which require the parties to
remain in marital ties in a peaceful and tranquil atmosphere and are not
required to be bound by stringent conditions to remain in marriage bond.
4. This petition
is absolutely without any substance and is dismissed. Leave refused."
14. In the case of Muhammad Amjad's case (2010
YLR 423) [Lahore],
this Court observed as under:--
"7. The
issue involved in the case by now has been settled by this Court. The matter
regarding the damages envisaged in Column No. 17 of the Nikahnama is not
amenable to the jurisdiction of the Family Judge. The matter can only be
pursued before the Civil Court of general jurisdiction.
8. The writ
petition is, therefore, accepted and the impugned judgments and decrees, passed
by the learned lower Courts, are hereby set aside."
15. Before proceeding further it may be useful to
remind that according to Mohammedan Law Nikah is not a Sacramento but a civil contract between a
Muslim man and woman which is entered into for procreation and legalization of
children and the spouses after consenting it are bound to respect it and to
live within the limits of Allah. The contract of Nikah under the Mohammedan Law
may be dissolved by the husband at his will without any intervention of a Court
or by mutual consent of the husband and wife without intervention of a Court or
by a judicial decree at the suit of husband or wife. In the Mohammedan Law a
wife cannot divorce herself from her husband without his consent except under a
contract whether made before or after marriage.
16. In view of the above legal position, it is
understandable that if a Mohammedan wife can lawfully stipulates for a divorce
under a contract then she can also stipulate for future claim in case of
divorce apart from the dower fixed at the time of Nikah. Any such stipulation,
therefore, cannot be termed as against public policy of the Mohammedan Law. Any
claim on the basis of such stipulation arising out of the civil liability can
be safely termed as "actionable claim". Any right within the meaning
of "actionable claim" is prima facie alien to the "personal
property and belonging of the wife" incorporated in Entry No. 9 of
Schedule II to Section 5 of the Family Courts Act, 1964.
17. The controversy between the parties as to
whether such sort of claim falls within the meaning of "personal property
and belonging of the wife" enumerated at Serial No. 9 of Schedule II to
Section 5 of the Family Courts Act, 1964, has already been dealt with by this
Court in the case of Muhammad Akram vs. Mst. Hajra Bibi and 2 others (PLD 2007 Lahore
515). The relevant extract whereof reads below:--
"As regards
the question, whether the suit is competent before the Family Court, it is the
case of Respondent No. 1, and also held by the learned Additional District
Judge that the matter falls within the Entry No. 9 of the Schedule to Section
5, i.e. "personal property and belonging of the wife". I feel amazed
to note as to how the amount of Rs.1,00,000 allegedly payable by the petitioner
on account of the divorce or bad relations between the parties, is the personal
property or belonging of Respondent No. 1, so as' to bring the case within the
jurisdiction of the Family Court. Such personal property or belonging referred
to in Entry No. 9, in my considered view, is a residuary provision, which enables
the wife to recover through the process of the Family Courts Act, 1964,
whatever property she has acquired during the subsistence of the marriage,
which is not the part of her dowry, through her own independent means or even
through the means provided by the husband, such as her clothes, ornaments and
items of personal use and nature, this may also include anything which has been
gifted to the wife by the husband or any of his or her relatives or the
friends; such property and belonging may be the one acquired by the wife out of
the money given to her by the husband, her saving from household allowance, or
pocket money, from the money provided by her parents and relatives. But
definitely the aforesaid entry does not cover any amount which is not yet the property
of the wife and she only has a claim to recover from the husband on the basis
of any special condition incorporated in the Nikahnama. I am not convinced by
the argument that the amount in question is covered under the rules of
actionable claims as envisaged by Section 130 of the Transfer of Property Act,
1882. The term "actionable claim" in general means, a claim for which
an action will lie, furnishing a legal ground for an action and according to
Section 3 of the Transfer of Property Act, a claim towards a debt. On account
of both the meanings such claim cannot be equated as a "personal property
and belonging of the wife". Resultantly, in my considered view, the family
Court has no jurisdiction in the matter and the suit in this behalf before the
said Court was not competent."
18. At this juncture, it is pertinent to mention
that the view propounded by this Court in the case of Muhammad Akram (supra)
being divergent to the one postulated in the case of Nasrullah (supra) has been
thoroughly examined by the Hon'ble Supreme Court in the case of Syed Mukhtar
Hussain Shah vs. Mst. Saba Imtiaz and others (PLD 2011 S.C. 260). The Apex Court after
examining the proposition from various angles and dimensions,
concluded that the interpretation adopted by this Court in the case of Muhammad
Akram (supra) is the correct explication of law. The relevant extract of the
dictum laid down by the Hon'ble Supreme Court in the case of Mukhtar Hussain
Shah (supra) reads below:--
"The
definition of "actionable claim" in the TPA is strictly and
exclusively relatable to the operative provisions of Chapter VIII of the Act,
which by virtue of Sections 130 to 137 thereof inter alia, prescribes the
requirements and the broad mechanism for the transfer and the assignment of the
"actionable claims" so defined in Section 3. It has no application
beyond the Act even if any general concept emerges on account of the
expression, it is restricted to the law it forms part and cannot be stretched
to apply to any other law of the land, including the Family Courts Act, 1964,
thus the interpretation of Entry No. 9 ibid as provided by Muhammad Akram v.
Mst. Hajra Bibi and 2 others (supra) is the correct explication of law, which
is hereby approved. However adding thereto, it may be held that if the ratio of
Nasrullah dictum (supra) which is entirely and solely founded on the noted
concept/definition is taken to be correct, than a suit for Specific
Performance, declaratory suits of any nature, or any other civil legislation
between a wife and husband shall be amenable to the special jurisdiction of the
family Court, which is not intent of the law. Because according to the literal
approach of reading a statute, the statute has to be read literally by giving
the words used therein, ordinary, natural and grammatical meaning. Besides, the
addition and substraction of a word in a statute is not justified, except where
for the interpretation thereof the principle of reading in and reading down may
be pressed into service in certain cases; thus when in Entry No. 9 `actionable
claim' has not been provided by the legislature, it shall be improper and shall
impinge upon the legislative intent and the rules of interpretation to add this
expression to the clause/entry."
19. As a sequel to the above, it is settled now
that the Family Court has no jurisdiction to entertain the petitioner's suit
for recovery of conditional amount of Rs.200,000/- as
incorporated in Column No. 19 of the Nikahnama (Exh.P.1) between the parties.
Therefore, learned appellate Court has rightly set aside the findings of the
learned Family Court lacking jurisdiction in this regard and does not call for
interference by invoking constitutional jurisdiction of this Court.
20. As regards petitioner's claim for dower
amount of Rs.300,000/- mentioned in Column No. 13 of
the Nikahnama (Exh.P.1), suffice to say that in the same column as well as in
Column No. 14 it is categorically mentioned that the same has been paid to the
petitioner at the time of Nikah. Petitioner in her cross-examination has admitted
that she has never questioned the entries of Nikahnama before any forum till
date. Admittedly, Nikahnama (Exh.P.1) is duly signed by her, therefore, at this
stage her plea that dower amount Rs.300,000/- was not paid to her at the time
of Nikah is devoid of any force. The learned Judge Family Court as well as the
learned appellate Court, therefore, have rightly dismissed her claim of dower
amount of Rs.300,000/-.
21. Simultaneously, respondent's plea that
petitioner is not entitled to claim any maintenance allowance is also devoid of
any force. A valid Nikah under the Mohammedan Law confers upon the wife the
right of maintenance and imposes on her the obligation to be faithful and
obedient to her husband for performance of her marital duties. It is evident
on the
record that after
recitation of Nikah
petitioner never refused to
effect union and perform her marital obligations rather respondent himself
refused to obtain Rukhsati on the pretext that he has to complete his studies
and ultimately divorced the petitioner on 14.05.2007. Therefore, keeping in
view the financial status of the respondent the trial Court has rightly decreed
the petitioner's suit for maintenance allowance from the date of Nikah i.e.
25.01.2005 till the date of divorce i.e. 14.05.2007 as well as for Iddat
period.
22. For the above discussion and reasons, I do
not find any factual or legal infirmity in the impugned judgment and decree
dated 23.12.2008 passed by the learned Additional District Judge, therefore,
the parties have no case at all to invoke the constitutional jurisdiction of
this Court to impugn the said judgment
23. As a sequel to the above both the above noted
writ petitions being devoid of any merit are dismissed.
(R.A.) Petitions
dismissed
