IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:
Mr. Justice Qazi Faez Isa
Mr. Justice Sardar Tariq Masood

CIVIL PETITIONS NO. 154 AND 155 OF 2019

(On appeal against the judgment dated 17.12.2018 passed by
Peshawar High Court, Peshawar in W.P. No. 2037-P of 2017)

Fawad Ishaq & others (In CP No. 154 of 2019)

Mst. Khurshida Ishaq (In CP No. 155 of 2019) Petitioners

Versus

Mst. Mehreen Mansoor & others (In both petitions) Respondents

For the petitioners: Mr. M. Munir Piracha, ASC

(In CP No. 154 of 2019) Mr. Mehmood A. Sheikh, AOR

(In CP No. 155 of 2019): Sardar Muhammad Aslam, ASC

Ch. Akhtar Ali, AOR

Respondent No. 1: Mr. Imtiaz Ali, ASC

(In both petitions) Haji M. Zahir Shah, AOR (Absent)

For Mansoor Ishaq: Mr. Amir Javed, ASC

(R. No. 3 in CP No. 154/19 & Mr. H.M. Zahir Shah, AOR (Absent)
R. No. 5 in CP No. 155/2019)

Other respondents: Nemo

Date of Hearing: 07.02.2020

ORDER

Qazi Faez Isa, J. Mehreen and Mansoor married on 15th May 1995 and the
Nikahnama mentioned the terms of their marriage. Form II of the Muslim
Family Laws Ordinance, 1961 prescribes the official form of nikahnama and
lists 25 questions1. In this case question numbers 13 to 16 and the answers
thereto in the Nikahnama are relevant, therefore, the said pre-typed
questions and their handwritten answers are reproduced hereunder:

1
Form II of nikahnama as prescribed by Rules 8 and 10 of the West Pakistan Rules under
the Muslim Family Laws Ordinance, 1961 (VIII of 1961)
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C.P. No. 154 and 155 of 2019

2. Sixteen years after the marriage, on 30th June 2011, Mehreen filed a
suit claiming a house, measuring 1 kanal situated on plot No. 28 Abdara
Road, University Town, Peshawar (“the Property”), or its prevailing market
value of thirty-three million rupees, which she said constituted part of her
dower (mehr) and as mentioned in clause 16 of the Nikahnama. The suit was
filed in Family Court-II, Peshawar. Mehreen arrayed Haji Muhammad Ishaq
Jan and Mst. Khurshida Ishaq, respectively her father-in-law and mother-in-
law, as the only defendants in the suit. The suit was decreed by the learned
Family Judge on 3rd May 2014. Both the father-in-law and mother-in-law
filed separate appeals but both were dismissed, vide consolidated judgment
dated 15th February 2017 of the learned Additional District Judge-X,
Peshawar. Thereafter, they filed two separate writ petitions before the
Peshawar High Court, Peshawar but these too were dismissed, vide
impugned judgment dated 17th December 2018. It is against these three
judgments that the two petitions under consideration have been filed; Mst.
Khurshida Ishaq has filed Civil Petition for Leave to Appeal No. 155 of 2018
and Civil Petition for Leave to Appeal No. 154 of 2018 is filed by the two sons
and one daughter of Haji Muhammad Ishaq Jan who had passed away.

3. The learned Sardar Muhammad Aslam represents Mst. Khurshida

Ishaq (“Mst. Khurshida”) and the learned Mr. Muhammad Munir Piracha
represents the two sons and daughter of the late Haji Muhammad Ishaq Jan;
they have joined cause before us. The learned counsel state that admittedly
Mst. Khurshida owned the Property which was conveyed to her through a
registered document (Exhibit DW-2/1) dated 1st June 1964, however, Mst.
Khurshida was not a party to the Nikahnama and neither gave nor agreed to
give the Property to Mehreen. And, Mst. Khursida’s husband (Haji
 3
C.P. No. 154 and 155 of 2019

Muhammad Ishaq Jan) was not given a power of attorney or any other
authority to make a commitment on her behalf or in respect of the Property;
reliance was placed on the case of Muhammad Siddiq v Shahab-ud-Din 2
where a father was held not liable under Muslim law for the dower of his
son. They next submitted that the family suit was filed in a family court but
the plaintiff (Mehreen) did not array her husband (Mansoor) as a party
therein nor demanded her dower from him which defect in the suit was fatal
to it. The learned counsel state that in terms of section 2 (d) of the Family
Courts Act, 19643 (“Act”) the husband was a necessary party because he
was primarily liable to pay the dower but he was not arrayed nor did the
learned Judge of the Family Court order his joinder as a party. Section 2(d)
of the Act stipulates, that, “‘party’ shall include any persons whose presence as
such is considered necessary for a proper decision of the dispute.” By not arraying
her husband (Mansoor) it can be assumed, submit learned counsel, that
Mehreen and Mansoor had collusively filed the suit to try to get the Property
without making Mansoor liable. The suit was filed sixteen years after the
marriage and execution of the Nikahnama, and the spouses (Mehreen and
Mansoor) are still happily married, it is submitted. Concluding their
submission the learned counsel state, that Mst. Khurshida and her
husband, respectively Mehreen’s mother and father in law, took care of their
own interests, they filed their separate written statements, they engaged
their own counsel who represented them and independently contested the
case.

4. Mr. Imtiaz Ali, the learned counsel representing Mehreen, states that
the matter has been concurrently decided and the learned Judge of the High
Court upheld the decisions of the two Subordinate Courts and there is no
legal reason for this Court to substitute its findings with three well-reasoned
judgments. The learned counsel refers to a document (Exhibit PW-4/1)
executed by Mehreen’s father-in-law which confirms what the Nikahnama
records, that Mehreen’s dower comprised of five hundred thousand rupees,
seventy-five tolas of gold jewelry and the Property, however, the dispute is
only about the Property. The learned counsel refers to section 41 of the

2
AIR 1927 Allahabad 364
3
Family Courts Act, 1964 (Act No. XXXV of 1964)
 4
C.P. No. 154 and 155 of 2019

Transfer of Property Act, 18824 and the case of Kanwal Nain v Fateh Khan 5
to contend that Mst. Khurshida had permitted her husband, who was the
ostensible owner of the Property, to transfer the Property to their daughter-
in-law therefore Mst. Khursida is estopped from preventing the completion of
the transaction. The learned counsel cites the case of Muhammad Anwar
Khan v Sabia Khanam6 in which the father of the bridegroom had committed
to transfer his house to the bride and it was held that the father had to fulfil
his commitment, which principle the learned counsel states is equally
applicable herein. Referring to the case of Parveen Umar v Sardar Hussain 7
it is submitted that the different properties (money, gold and the land with
house) mentioned in the Nikahnama were collectively given as dower and
were not alternatives. The learned counsel concludes by referring to the case
of Muhammad Arif v District and Session Judge, Sialkot8 as precedent for the
proposition that the father and mother of a plaintiff’s husband can be
arrayed as parties in a family suit.

4. Mr. Amir Javed, the learned counsel representing Mansoor submits

that Mansoor got married when he was at University and then settled abroad
with his wife Mehreen. He refers to section 2 (d) of the Act and states that
Mansoor was not a necessary party because the relief sought in the suit was
in respect of the Property and against Mst. Khurshida and her husband; the
decree was also passed against them, and not against Mansoor, therefore, it
was not necessary to array Mansoor as a defendant, and if the learned
Family Judge felt that he was a necessary party the learned Judge could
have impleaded him but did not do so. Mansoor’s parents should abide by
the commitment made with regard to the Property at the time of the
marriage, the learned counsel concludes.

5. Reference has been made to a document titled ‘Declaration’ (Exhibit

DW-1/1) made before the Consul General of Pakistan Toronto, Canada by
Mansoor wherein he states on oath that, “According to the local traditions my
father, promised my wife Ms. Mehreen Mansoor a dower of 1 kanal land with

4
Transfer of Property Act, 1882 (Act No. IV of 1882)
5
PLD 1983 Supreme Court 53
6
PLD 2010 Lahore 119
7
2003 YLR 3097
8
2011 SCMR 1591
 5
C.P. No. 154 and 155 of 2019

a fully constructed house on 28 Abdara Road, University Town Peshawar,

Pakistan … and [I have] advised her to claim the same from my father…”.
Reference was also made to the inscription written by Haji Muhammad Ishaq
Jan, on page 2 of the Nikahnama, stating that a house would be constructed
on the said plot and given to Mehreen (Exhibit Pw-4/3-A). In response to our
query we were informed by the learned counsel representing Mansoor and
Mehreen that when the suit was filed they were happily living together as
husband and wife in Canada and continue to do so.

6. We have heard the learned counsel for the parties and with their able
assistance examined the documents on record, the judgments of the
Subordinate Courts, the impugned judgment of the High Court, provisions of
the laws that have been referred to and the cited precedents.

7. Mst. Khurshida acquired land in the year 1964 on which subsequently

a house was constructed. It is also admitted that Mst. Khursida was not a
signatory to the Nikahnama nor had executed any other document agreeing
to transfer the Property, either before or after a house was constructed on it,
to her daughter-in-law. Mst. Khurshida also did not grant a power of
attorney or otherwise authorize her husband to make any commitment on
her behalf with regard to the Property, let alone to transfer it. The
‘Declaration’ (Exhibit DW-1/1) executed by Mansoor stated that his father
had agreed to construct and deliver the possession of the Property, which is
of little consequence because, firstly, it is self-serving document and,
secondly, the Property was owned by Mst. Khursida, who had not agreed to
part with it. Moreover, the referred to “local traditions” if they deprive a lady
of her property without her consent will not prevail over the law and shariah
(as discussed hereinbelow). The other document relied in support of
Mehreen’s case is the Nikahnama (Exhibit PW-4/3) and in particular the said
note thereon (Exhibit PW-4/3-A) mentioning the Property, however, this
document too was not executed by Mst. Khurshida. In the referred to case of
Muhammad Anwar Khan v Sabia Khanam9 the father-in-law, who was the
owner of a house, had agreed to transfer it to his son’s spouse at the time of
marriage, however, in the present case Mst. Khurshida had not agreed to
transfer the Property, therefore, it is not applicable to the facts of this case.

9
PLD 2010 Lahore 119
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C.P. No. 154 and 155 of 2019

8. The argument that Mst. Khurshida had permitted her husband,

expressly or impliedly, to transfer the Property in terms of section 41 of the
Transfer of Property Act10 is not borne out by the record. To attract section
41 it had to be established that, Mst. Khurshida had expressly or impliedly
held out that her husband was the “ostensible owner” of the Property and
had authorized him to transfer the Property to Mehreen. The other
requirements of section 41 are that the proposed transferee had taken
“reasonable care to ascertain that the transferor had power to make the
transfer” and had “acted in good faith”. Mst. Khurshida neither held out that
her husband was the ostensible owner of the Property nor that she had
authorized him to transfer it. Mehreen also lead no evidence to show that
she had attempted to ascertain that Haji Muhammad Ishaq Jan had the
power to transfer the Property. Therefore, Mehreen could not avail the
benefit of section 41 of the Transfer of Property Act.

9. The learned Judge of the High Court was aware that the Property was
owned by Mst. Khurshida but had agreed with the decisions of the
Subordinate Court because, firstly, the wives of Mst. Khurshida’s other sons
had been given plots of “2 kanal each”, secondly, she did “not question Nikah
Nama” and, thirdly, her husband was “guarantor” of the Property. With
respect to the learned Judge, none of the three reasons which prevailed with
him (and which had persuaded the learned Judges of the Subordinate
Courts to respectively decree and uphold the decree) are sustainable in law.
If the spouses of the other sons of Mst. Khurshida were given land it was
inconsequential since every marriage and its terms are independent from
every other and there is no legal concept of parity. The other cited reason,
that Mst. Khurshida had not questioned (by which we presume the learned
Judge meant challenged in court) the contents of the Nikahnama, was
irrelevant, since the matter did not concern her; Mehreen and Mansoor were
sui juris and had agreed to get married on certain terms, which could not
unilaterally be imposed on Mst. Khurshida who had not executed or signed
the Nikahnama, therefore, Mst. Khurshida was not obliged to challenge it.
Moreover, it was for Mehreen to establish that Mst. Khurshida had agreed to

10
Transfer of Property Act, 1882 (Act No. IV of 1882)
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C.P. No. 154 and 155 of 2019

give the Property as dower to her, however, there was no evidence that she
had agreed to do so. The obligation to pay dower was incurred by Mansoor
and remained his to fulfil. As regards the reason that Mst. Khurshida’s
husband was a guarantor of the Property it has no legal basis since a
husband has no right to his wife’s property nor can he ‘guarantee’ or
encumber it without her permission.

10. We however find that the old European and American concepts at
times permeate into the thinking even of judges in Pakistan. The doctrine of
‘coverture’ subsumed a married woman’s identity. Sir William Blackstone 11
described the doctrine of coverture: “By marriage, the husband and wife are
one person in law: that is, the very being or legal existence of the woman is
suspended during the marriage, or at least is incorporated and consolidated
into that of the husband: under whose wing, protection, and cover, she
performs everything; and is therefore called in our law-French a feme-
covert…”12. In her comprehensively researched book13 Amy Louise Erickson
writes, “Under common law a woman’s legal identity during marriage was
eclipsed - literally covered - by her husband. As a ‘feme covert’, she could not
contract, neither could she sue nor be sued independently of her husband. …
The property a woman brought to marriage – her dowry or portion – all came
under the immediate control of her husband”14. It was only on the passing of
the Married Women’s Property Act, 1882 that in England a married woman
became, “capable of acquiring, holding, and disposing by will or otherwise, of
any real or personal property as her separate property, in the same manner as
if she were a feme sole, without the intervention of any trustee”15.

11. The situation in the United States of America of married women was
no better, they had no legal existence apart from their husbands. The reason
for a married woman’s servile status was sought to be explained by the

11
William Blackstone, Commentaries on the Laws of England (Volume 1, Oxford University
Press, 1765)
12
William Blackstone, Commentaries on the Laws of England (Volume 1, Oxford University
Press, 1765) pg. 442
13
Amy Loise Erickson, Women and Property in Early Modern England (London and New
York: Routledge, 1993)
14
Amy Loise Erickson, Women and Property in Early Modern England (London and New
York: Routledge, 1993) pg. 24
15
Section 1(1) of the Married Women’s Property Act, 1882
 8
C.P. No. 154 and 155 of 2019

Supreme Court of Illinois 16, “It is simply impossible that a married woman
should be able to control and enjoy her property as if she were sole, without
practically leaving her at liberty to annul the marriage”17. The unjustness of
the laws was severely criticized. Elizabeth Cady Stanton listed in the
Declaration of Sentiments18 “the injuries and usurpations on the part of man
toward woman”19 – “He has made her, if married, in the eye of the law, civilly
dead. He has taken from her all right in property, even to the wages she
earns… the law, in all cases, going upon a false supposition of the supremacy
of a man, and giving all power into his hands”20. Harriet Beecher Stowe was
another campaigner for women’s rights, observing that, “[T]he position of a
married woman… is, in many respects, precisely similar to that of the negro
slave. She can make no contract and hold no property; whatever she inherits
or earns becomes at that moment the property of her husband. … [I]n English
common law a married woman is nothing at all. She passes out of legal
existence.”21

12. Discrimination against women pervaded in other areas too. It was only
in 1960 that women in America could open bank accounts without their
husband’s permission22 and this right was acquired by women in the United
Kingdom as late as 1975 23. The professions were also barred to women. Mrs.
Myra Colby Bradwell had passed the bar examinations but was not allowed
to practice law; she asserted her right to practice but in 1873 the United
States Supreme Court24 held, that denying Mrs. Bradwell the right to
practice law violated no provision of the federal Constitution and added,
“That God designed the sexes to occupy different spheres of action, and that it

16
Cole v Van Riper, 44 III 58 (1867)
17
Cole v Van Riper, 44 III 58 (1867), pg. 63
18
Elizabeth Cady Stanton, A History of Woman Suffrage (Vol. I, Rochester, New York: Fowler
and Wells, 1889)
19
Elizabeth Cady Stanton, A History of Woman Suffrage (Vol. I, Rochester, New York: Fowler
and Wells, 1889), pg. 70
20
Elizabeth Cady Stanton, A History of Woman Suffrage (Vol. I, Rochester, New York: Fowler
and Wells, 1889), pg. 70-71
21
Melissa Homestead, American Women Authors and Literary Property, 1822–1869 (1st edn,
New York: Cambridge University Press, 2005), pg. 29
22
Stephanie Coontz, The Way We Never Were: American Families and the Nostalgia Trap (New
York: Basic, 1992)
23
Equal Credit Opportunity Act, 1974 and Sex Discrimination Act, 1975
24
Bradwell v. The State, 83 U.S. 130 (1873)
 9
C.P. No. 154 and 155 of 2019

belonged to men to make, apply, and execute the laws, was regarded as an
almost axiomatic truth”25.

13. The position of women in Islam is different. “Men shall have the benefit
of what they earn and women shall have the benefit of what they earn”26. The
Holy Qur’an also prohibits taking another’s property – “Do not eat up (or
consume) one another’s property”27. Women’s share in inheritance are also
precisely ordained28. What a woman inherits is hers and hers alone; neither
her husband, father, brother or son has any entitlement to it; a woman also
does not need permission to dispose of her property or to acquire property.
The bridal gifts given at the time of marriage are also the wife’s property,
these can be added to but not subtracted by the husband 29. It is also
recommended that husbands make wills to provide for their wives 30.

14. A husband and wife, who were both Government servants, had
challenged an office memorandum of the Government which did not treat
husband and wife alike. The Federal Shariat Court31 comprehensively
attended to the question of discrimination and the status of a married
woman in Islam and after referring to a number of verses of the Holy
Qur’an32 held:
“These Verses clearly confirm the right of earning, owning and
possessing by male and female - all in the like manner - and
emphasizes again and again that no one can be deprived of
his/her due share for any reason. Both are equally entitled to
their own individual shares on the basis of their services, duties
and functions performed by each one. Each one is at par with
the other in this respect, without any discrimination. The rights
of each one accrued thus in no manner could be infringed,
curtailed or diminished.”33

25
Bradwell v. The State, 83 U.S. 130 (1873), pg.132
26
Al-Qur’an, Surah An-Nisa (4) verse 32
27
Al-Qur’an, Surah An-Nisa (4) verse 29
28
Al-Qur’an, Surah An-Nisa (4) verses 7, 11 and 12
29
Al-Qur’an, Surah An-Nisa (4) verses 24 and 25; Surah Maidah (5) verse 5; Surah
Mum’tahanah (60) verse 10
30
Al-Qur’an, Surah Al-Baqarah (2), verse 240
31
Kazim Hussain v Government of Pakistan, PLD 2013 Federal Shariat Court 18
32
Al-Qur’an, Surah Al-Baqarah (2) verse 143, Surah Al-Imran (3) verse 171, Surah An-Nisa
(4) verse 32, Surah Al-Kahf (18) verse 30 and Surah Az-Zumar (39) verse 70
33
Kazim Hussain v Government of Pakistan, PLD 2013 Federal Shariat Court 18, pg. 39
 10
C.P. No. 154 and 155 of 2019

The Federal Shariat Court held that, “one of the principles which is the
hallmark of Islamic injunctions is the principle of equality before law and equal
protection of law for all people, irrespective of their gender, colour or creed”34.
Elaborating further the Court observed, that:
“This fraternity and equality is all pervading and is not only
a matter of form but is indeed a matter of substance. It
emphasizes equality before law and equal protection of law.
In this respect, Sharia does not make any distinction
between the citizens of an Islamic State. Here we find no
concept of discrimination in the administration of justice
between one person and another on any basis. In social and
legal perspectives, no human being can be denied or
deprived of any fundamental right, nor any juridical right
can be reserved for any particular group on the external
consideration of his wealth, status caste or colour or any
other ground. It clearly shows that equality before law and
equal protection of law is the cardinal principle which runs
like a golden chord in all Injunctions of Islam.”35

15. A chasm existed between a woman’s position in Islam to that which

prevailed till a century ago in Europe and America where upon marriage a
wife stood deprived of her property, which became that of her husband to do
with it as he pleased. However, in the Muslim world the situation was
altogether different and this has been the position since over fourteen
hundred years. Muhammad Mustafa (peace be upon him) was employed by
lady Khadijah bint Khuwaylid (may Allah be pleased with her), the first
convert to Islam, who spent abundantly from her personal wealth in the
cause of Islam; she retained her properties and wealth after her marriage to
the Prophet (peace be upon him). In Islamic societies Muslim ladies not only
retained their properties but also their identities after marriage. The noble
lady Ayesha (may Allah be pleased with her) on becoming a widow on the
death of the Prophet (peace be upon him) was not cloistered but became one
the greatest narrators of hadith and between three to four thousand recorded
in the six main hadith collections36 cite her as their source; she was also a
teacher, a great scholar and made her presence felt on the battlefield.

34
Kazim Hussain v Government of Pakistan, PLD 2013 Federal Shariat Court 18, pg. 36
35
Kazim Hussain v Government of Pakistan, PLD 2013 Federal Shariat Court 18, pg. 39
36
Sahih al-Bukhari, Sahih Muslim, Sunan Abu Dawud, Sunan al-Tirmidhi, Sunan al-Nasa’i,
and Sunan Ibn Majah
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C.P. No. 154 and 155 of 2019

16. British rule and Colonization of the subcontinent disrupted Muslim

society’s links with the past but without completely severing ties with
shariah37. To restore the privileges and status of women in Islam a number
of laws were enacted, including the Dissolution of Muslim Marriages Act,
193938. The importance of a Muslim married woman’s right to property can
be gauged from the fact that, if her husband, “disposes of her property or
prevents her from exercising her legal rights over it”, she could obtain
dissolution of her marriage because it constituted “cruelty”39. The
proposition which has been put forward that Mst. Khurshida’s husband
could deprive her of the Property is both against shariah and the Dissolution
of Muslim Marriages Act. Shariah, including the rights it grants women, was
made unassailable by the Constitution of the Islamic Republic of Pakistan 40,
which specifically stipulates that all existing laws are to conform to the
injunctions of Islam as laid down in the Holy Qur’an and sunnah. The
Fundamental Rights in the Constitution include the “right to acquire, hold
and dispose of property”41 and “no person shall be compulsorily deprived of
his42 property save in accordance with law”43; these provisions do not
distinguish between men and women. Therefore, unless a married woman
elects to gift, sell or otherwise dispose of her property neither her husband
nor any male relative has any right over it.

17. Mst. Khurshida was not a signatory to the Nikahnama nor had she, at
any stage, agreed to transfer the Property to Mehreen. Mst. Khurshida’s
husband could not have made a commitment on her behalf with regard to
the Property. Mehreen also did not array her husband as a party to the suit
even though he was a necessary party thereto. Mehreen undoubtedly had a
valid claim against her husband with regard to the dower promised by him
at the time of marriage, as mentioned in the Nikahnama, and could claim the
value of the Property from him however she elected not to do so but instead

37
The words of Almighty Allah in the Holy Qur’an and sunnah - the teachings of Prophet
Muhammad (peace be upon him)
38
The Dissolution of Muslim Marriages Act, 1939 (Act VII of 1939)
39
Section 2(viii)(d) of the Dissolution of Muslim Marriages Act, 1939
40
Article 227 of the Constitution of the Islamic Republic of Pakistan
41
Article 23 of the Constitution of the Islamic Republic of Pakistan
42
Article 263(a) of the Constitution of the Islamic Republic of Pakistan states, “words
importing the masculine gender shall be taken to include females”
43
Article 24 of the Constitution of the Islamic Republic of Pakistan
 12
C.P. No. 154 and 155 of 2019

lay claim to the Property. Be that as it may, Mehreen could still claim from
her husband any part of her dower which remains unpaid.

18. Therefore, for the reasons mentioned above, these petitions are
converted into appeals and allowed by setting aside the judgments of the
Courts below and by dismissing the suit filed by Mehreen against Haji
Muhammad Ishaq Jan and Mst. Khurshid Ishaq. There shall however be no
order as to costs.

Judge

Judge

Bench-IV
Islamabad
7.02.2020
(Atif)

Approved for Reporting