Stereo.HCJDA 38.

Judgment Sheet
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH, RAWALPINDI.
JUDICIAL DEPARTMENT
….

W.P.No.2111 of 2013

WASIF ALI, ETC.

Versus
MRS. FAKHRA JABEEN, ETC.

JUDGMENT
Date of hearing: 05.10.2021.

Petitioners by: M/s. Kh. Shahid Rasool Siddiqui and

Muhammad Ishaq Shah, Advocates.

Respondents Mr. Ghufran Khurshid Imtiazi, Advocate.

No.1 and 2 by:

MIRZA VIQAS RAUF, J.This petition as well as W.P.No.2716

of 2019, are though arising out of two different family suits but since
raising similar question of law, have been placed before us by the order
of Hon’ble Chief Justice as larger Bench. We thus hereby intend to
decide both these petitions through this single judgment. We have
observed that in the former petition, learned Single Judge of this Court
referred the matter to the Hon’ble Chief Justice through order dated 17 th
June, 2020 while framing the following question: -
“5. The question before this Court is as to whether
Section 13 and 16 of Nikahnama are to be read separately or in
conjunction with each other. Learned counsel for the petitioners
has relied upon judgment of this Court in case titled Mst. Iram
Shahzadi v. Muhammad Imran-ul-Haq and others (2019 MLD
112 Lahore) in which learned Judge has held that the entries of
Columns No.13 and 16 are to be considered separately. On the
other hand, there is also judgment of this Court in case titled
Attorney General v. Mst. Amna-Tuz-Zahra (2011 CLC 726
Lahore) which reads that the entries made in Columns No.13 and
16 are to be taken together. Since there are two conflicting
W.P.No.2111 of 2013 -2-

judgments of this Court on one and the same point, it seems

appropriate that the matter be heard by a Larger Bench.”

Similarly, second petition i.e. W.P.No.2716 of 2019 was when placed

before one of us Mirza Viqas Rauf-J on 31st October, 2019, following
order was passed:-

“3. Learned counsel for the petitioner inter-alia contends that

the petitioner instituted a suit for recovery of maintenance and
dower. Maintains that suit was resisted by the “respondent”, who
also instituted a suit for restitution of conjugal rights. Adds that
after consolidating both the suits, the learned Judge Family Court
proceeded to decree both the suits through judgment dated 26th
April, 2019. Submits that in appeal filed by the “respondent”, the
learned Additional District Judge, while allowing the appeal
modified the judgment and decree of the learned Judge Family
Court to the extent of property mentioned in column No.16 of
Nikahnama. Learned counsel emphasizes that while partly
allowing the appeal, the learned Additional District Judge has
grossly misread the evidence. Argues that though property
mentioned in column No.16 of Nikahnama was not owned by the
“respondent” but in the light of principles laid down in “Mst.
RAZIA BEGUM v. JANG BAZ and 3 others” (2012 CLC 105) and
“MUHAMMAD ANWAR KHAN v. SABIA KHANAM and
another” (PLD 2010 Lahore 119), suit was rightly decreed by the
learned Judge Family Court to this extent.
4. Points raised need consideration. Admit. Notice.
5. Before parting, it is, however, observed that house in
question was admittedly the ownership of father of “respondent”
which was mentioned in column No.16 of the Nikahnama Mark-A
as part of dower. There is no cavil that marriage is a civil
contract which has for its object the procreation and the
legalizing of children and the Mahr or dower is a sum of money
or other property which the wife is entitled to receive from the
husband in consideration of the marriage.
6. With all reverence to the principles laid down in the
judgments supra, I am of the opinion that being a civil contract,
the terms and conditions of Nikah can only be invoked against the
parties privy to the same. Binding a person alien to the document
(Nikahnama) as well as suit offends the principles of
jurisprudence relating to the enforcement of
contracts/agreements. Office is, therefore, directed to place this
matter before the Hon’ble Chief Justice for constitution of larger
Bench for the resolution of matter in issue.”

2. Before taking any further step, it would be apt to give a

necessary resume of facts giving rise to these constitutional petitions.
For the purpose of disposal of these writ petitions, Wasif Ali (petitioner
No.1 in the instant petition), Major (Retd.) Zulfiqar Hussain Shah
W.P.No.2111 of 2013 -3-

Kazmi (petitioner No.2 in the instant petition) and Mst. Fahmeena

Bashir (petitioner in W.P.No.2716 of 2019) would be treated as
petitioners No.1 to 3 respectively whereas Mst. Fakhra Jabeen
(respondent No.1 in the instant petition), Maheen Ali (respondent No.2
in the instant petition) and Muhammad Kashif Nawaz (respondent No.3
in W.P.No.2716 of 2019) would be treated as respondents No.1 to 3
respectively.

Facts of W.P.No.2111 of 2013.

3. Mst. Fakhra Jabeen/respondent No.1 was married to Wasif

Ali/petitioner on 5th June, 2005 and to this effect a Nikahnama was
executed in terms of West Pakistan Rules under the Muslim Family
Laws Ordinance, 1961. The spouses were blessed with a daughter
namely Maheen Ali/respondent No.2, who born on 22 nd August, 2006.
On account of some differences, a suit for recovery of dower, plot
measuring 10-Marlas, gold ornaments, household articles and
maintenance allowance was instituted by respondents No.1 and 2
against petitioners No.1 and 2. Suit was resisted by petitioners No.1 and
2, who submitted their written statement wherein they controverted the
factual assertions. From the divergent pleadings of the parties, necessary
issues were framed and finally suit was decreed partly vide judgment
dated 31st January, 2011. Feeling aggrieved, both the sides preferred
their respective appeals before the learned Additional District Judge,
Taxila, however, appeal filed by petitioners No.1 and 2 was dismissed
whereas appeal preferred by respondents No.1 and 2 was partly
accepted vide judgment and decree dated 4th June, 2013.

Facts of W.P.No.2716 of 2019.

4. Mst. Fahmeena Bashir/petitioner No.3 instituted a suit for

recovery of dower, maintenance and house as per column No.16 of
Nikahnama averring therein that she was married to Muhammad
Kashif/respondent No.3 on 2nd March, 2017 in accordance with Shariat-
e-Muhammadi in lieu of dower amounting to Rs.1,00,000/- which is
W.P.No.2111 of 2013 -4-

still outstanding. As per averments contained in the plaint, behavior of

the respondent No.3 towards petitioner No.3 was cruel since beginning
of the marriage and finally in the month of May, 2017, he ousted her
from his house in three wearing apparels and since then she is living
with her parents. As per column No.20 of Nikahnama, Rs.10,000/- was
fixed as monthly maintenance and in column No.16 of Nikahnama, a
house was also mentioned but respondent No.3 has not given the same
to petitioner No.3 and is reluctant to do so. The respondent No.3
contested the suit by filing written statement wherein he controverted
the assertions contained in the plaint. A separate suit for restitution of
conjugal rights was also filed by respondent No.3 against petitioner
No.3. Learned Trial Court, after consolidating both the suits, from the
divergent pleadings of the parties, framed necessary issues and recorded
evidence of both the sides. On culmination of trial, the learned Judge
Family Court partly decreed the suit of petitioner No.3 and also decreed
the suit of respondent No.3 by way of consolidated judgment dated 26th
April, 2019. Feeling dissatisfied, the respondent No.3 preferred an
appeal under Section 14 of the Family Courts Act, 1964, which was
partly allowed by the learned Additional District Judge by way of
judgment and decree dated 26th June, 2019.

5. Khawaja Shahid Rasool Siddiqui, Advocate representing

the petitioners No.1 and 2 submitted that marriage was solemnized on
5th June, 2005 and in terms of columns No.13, dower was fixed as
Rs.5,00,000/-. He added that in lieu of dower, plot measuring 10-Marlas
was mentioned in column No.16. Learned counsel contended that
entries in columns No.13 and 16 cannot be read in isolation. It is argued
that respondent No.1 could only claim Rs.5,00,000/- as dower. He
maintained that dower in shape of Rs.5,00,000/- was even otherwise
paid to respondent No.1 but she has wrongly been held entitled for the
same by the Courts below. While referring the entries in column No.16
of Nikahnama, learned counsel submitted that plot in question was
owned in equal share by petitioners No.1 and 2. Learned counsel
W.P.No.2111 of 2013 -5-

submitted that petitioner No.2 was since not privy to the marriage, so he
cannot be deprived of his property being father of bridegroom. In
support of his contentions, learned counsel has placed reliance on
FAWAD ISHAQ and others v. Mst. MEHREEN MANSOOR and
others(PLD 2020 Supreme Court 269).

6. Conversely, Mr. Ghufran Khurshid Imtiazi, Advocate

representing the respondents No.1 and 2 submitted that dower was
never paid by petitioners No.1 and 2. He added that entries in columns
No.13 and 16 are independent and suit was rightly decreed by the
learned Appellate Court to this effect. Learned counsel contended that
petitioner No.2 was signatory to the Nikahnama and he was well aware
of the fact of incorporation of his property in the Nikahnama. Learned
counsel emphasized that in view of well settled principles of law, no
illegality has been committed by the learned Additional District Judge
while passing the impugned judgment and decree. Reliance is placed on
MUHAMMAD IMRAN v. ADDITIONAL DISTRICT JUDGE, MULTAN
and 3 others (PLD 2018 Lahore 429), Mst. IRAM SHAHZADI v.
MUHAMMAD IMRAN-UL-HAQ and others (2019 MLD 112), Mst.
MITHAN v. ADDITIONAL DISTRICT JUDGE, JATOI AND 7 others”
(2017 MLD 1101) and Sheikh MUHAMMAD MUNEER v. Mst.
FEEZAN (PLD 2021 Supreme Court 538).

7. On the other hand, Mr. Muhammad Suleman Iqbal,

Advocate representing the petitioner No.3 submitted that initially
learned Judge Family Court has rightly held the petitioner No.3 entitled
for the house mentioned in Column No.16 of Nikahnama but findings to
this effect were modified by the learned Additional District Judge
without assigning any lawful reasoning in appeal filed by respondent
No.3. It is contended that impugned judgment and decree is not tenable
under the law.

8. Heard. Record perused.

W.P.No.2111 of 2013 -6-

9. Though through their respective suits, respondents No.1

and 2 and petitioner No.3 claimed multiple reliefs e.g. maintenance,
gold ornaments, dower and property mentioned in column No.16 of
Nikahnamas but before us, the controversy is only relatable to dower
mentioned in column No.13 and property find mentioned in column
No.16 of Nikahnamas. The questions before us are thus as under: -

A. Whether columns No.13 and 16 of Nikahnama are to be

read separately or in conjunction with each other?

B. Whether entries in Nikahnama can operate against a

person not privy to the document/Nikahnama.

10. Before adverting to the question-A, it would be

advantageous to first have a cursory glance of the circumstances leading
to the promulgation of Muslim Family Laws Ordinance (VIII of 1961)
(hereinafter referred as “Ordinance, 1961”). The “Ordinance, 1961” is
an enactment which, according to its preamble, was enacted to give
effect to certain recommendations of the Commission on Marriage and
Family Laws. Historical background of the aforementioned legislation
is that in the early 50’s a sizeable segment of the society comprising
females had expressed reservations as regard the treatment meted out to
women by the male dominant society. The All Pakistan Women
Association (APWA), a body which claimed to represent women’s
point of view was in the forefront in demanding legislation to protect
their rights and had in fact started agitation. The Government
constituted a Commission to consider various aspects of the demands
and make recommendations in relation to the family system. The
reference to Commission, inter alia, was to make a report on the proper
registration of marriage and divorces, the right exercisable by either
partner through a Court or by other judicial means and the establishment
of special courts to deal expeditiously with cases affecting women
rights. After due deliberation, the Commission issued its report vide
notification dated 11.06.1956, which was published in the gazette of
Pakistan. Various recommendations of the Commission were
incorporated in the “Ordinance, 1961”. We would like to observe that
W.P.No.2111 of 2013 -7-

with the promulgation of “Ordinance, 1961”, every marriage

solemnized under Muslim Law was made registerable in accordance
with provisions of the “Ordinance 1961”. Section 5 of the “Ordinance
1961” deals with the registration of marriages, which reads as under: -

5. Registration of marriages.(1) Every marriage

solemnized under Muslim Law shall be registered in
accordance with the provisions of this Ordinance.

(2) For the purpose of registration of marriage under

this Ordinance, the Union Council shall grant licence to
one or more persons, to be called Nikah Registrars, but in
no case shall more than one Nikah Registrar be licensed
for any one Ward.
Province of Punjab.
(2) For the purpose of registration of marriages under this
Ordinance the Union Council shall grant licenses to one or more
persons, to be called Nikah Registrars.
Province of Punjab.
(2-A). The Nikah Registrar or the person who solemnizes a Nikah
shall accurately fill all the columns of the Nikahnama form with
specific answers of the bride or the bridegroom.

(3) Every marriage not solemnized by the Nikah

Registrar shall, for the purpose of registration under this
Ordinance, be reported to him by the person who has
solemnized such marriage.

(4) Whoever contravenes the provisions of sub-section

(3) shall be punishable with simple imprisonment for a
term which may extend to three months or with fine which
may extend to one thousand rupees, or with both.
Province of Punjab:
(4) If a person contravenes the provision of:
(i) subsection (2A), he shall be punished to simple
imprisonment for a term which may extend to one
month and fine of twenty five thousand rupees; and
(ii) subsection (3), he shall be punished to simple
imprisonment for a term which may extend to three
months and fine of one hundred thousand rupees.

(5) The form of nikahnama, the registers to be

maintained by Nikah Registrars, the records to be
preserved by Union Council, the manner in which
marriage shall be registered and copies of Nikahnama shall
be supplied to the parties, and the fees to be charged
therefor, shall be such as may be prescribed.

(Underlining supplied for emphasis)

W.P.No.2111 of 2013 -8-

11. In order to carry out the object of the “Ordinance, 1961”,

West Pakistan Rules under the Muslim Family Laws Ordinance, 1961
(hereinafter referred as “Rules, 1961”) were framed on 20th July, 1961.
Rules 7 to 13 provide the manner of registration of marriages. Rule 8 is
directly related to the prescribed form of Nikahnama, which is to be
printed in Form II appended with the Rules. The question as to whether
clauses 13 and 16 of the Nikahnama are to be read separately or in
conjunction with each other is not a ticklish one though it has been
made so on account of incompetency of Nikah Registrars. In order to
understand the meanings and links interse columns No.13 to 16 of
Nikahnama, the same are reproduced below:-

13. Amount of dower ___________________________________

14. How much of the dower is

Mu’wajjal (prompt) and how much
mu’ajjal (deferred) ___________________________________

15. Whether any portion of dower ___________________________________

was paid at the time of marriage. If
so, how much

16. Whether any property was

given in lieu of the whole or any
portion of the dower with
specification of the same and
valuation agreed to between the
parties.

While going through columns No.13 to 16, we can easily observe that
column No.13 exclusively deals with the amount of dower whereas
columns No.14, 15 and 16 are in addition to column No.13 in order to
explain nature of dower, part of dower if paid at the time of marriage or
the property in lieu of dower.

12. We cannot lose sight of the fact that in construing a

document, one has to read the same as a whole and not by picking and
W.P.No.2111 of 2013 -9-

choosing a particular paragraph or portion thereof. It is trite law that

deed of contract has to be construed strictly and literally without
deviating or implying anything which was not supported by the
intention of the parties and the language of the document. Nothing can
be implied in a contract, which was inconsistent with its expressed
terms. Needless to observe that intent and purpose of a document should
be inferred from the language employed and its ordinary meanings
should be adhered to and given preference rather than the far-fetched
meanings. The primary object of interpretation of any contract is to find
out intention of the parties to the agreement. By looking to the words
used one has to construe the intention which persuaded the parties to
enter into the agreement. The cardinal presumption is that the parties
have intended what they have in fact said, so that their words must
construed as they stand. That is to say, the meaning of the document or
of a particular part of it is to be sought in the document itself. One must
consider the meaning of the words used, not what one may guess to be
the intention of the parties. However, no contract is made in a vacuum.
In construing the documents, the Court may resolve an ambiguity by
looking at its commercial/social purpose and the factual background
against which it was made. The dower specified in any Nikahnama,
being consideration of the marriage, is an essential condition of the
contract that has to be construed keeping in view the aforementioned
principle. Reliance in this respect can be placed on ANWARUL HAQ v.
FEDERATION OF PAKISTAN through Secretary, Establishment
Division Islamabad and 13 others (1995 SCMR 1505) and HOUSE
BUILDING FINANCE CORPORATION v. SHAHINSHAH HUMAYUN
COOPERATIVE HOUSE BUILDING SOCIETY and others (1992
SCMR 19).

13. There is no cavil that marriage is a civil contract, which

has for its object, the procreation and the legalizing of children and
dower or “Mehr” is the sum of money or other property which the wife
is entitled from the husband in consideration of the marriage. It is an
W.P.No.2111 of 2013 -10-

obligation imposed upon a husband as a mark of respect to the wife and

where a claim is made under a contract of dower, the Court should,
unless it is provided by any legislative enactment, award the entire sum
provided in the contract. The dower may be prompt or deferred. Prompt
dower is payable immediately on demand. Where part of dower is
described as Mu’wajjal i.e. deferred but no time limit is fixed for its
payment, the time of such payment is either death or divorce. Dower
may be in any form of property, tangible or intangible. Parties to the
marriage contract i.e. bride and the bridegroom have freedom of
contract to negotiate and settle the terms of marriage including dower.
Dower is thus the only corollary for a valid marriage. Guidance in this
respect can be sought from the following verses of Holy Qur’an: -

4‫سورۃالنساء آیت مبارکہ‬

‫ص ُد ٰقت ِِهن ن ِۡحلَة ؕ َفا ِۡن طِ ۡب َن لَـ ُكمۡ َع ۡن َش ۡىء م ِّۡن ُه َن ۡفسا َف ُكلُ ۡوهُ َهن ۡ ِٓیــا‬
َ ‫َو ٰا ُت ۡوا ال ِّن َسآ َء‬
(4:4)﴾۴﴿ ‫م ِر ۡ ٓیـــﺎ‬
‫اور عورتوں کو ان کے مہر خوشی سے دے دیا کرو۔ ہاں اگر وه اپنی خوشی سے اس‬
﴾۴﴿ ‫میں سے کچه تم کو چهوڑ دیں تو اسے ذوق شوق سے کهالو‬
)‫ فتح محمد جالندهری‬:‫(ترجمہ‬
And give unto the women (whom ye marry) free gift of their marriage
portions. But if they of their own accord remit unto you a part
thereof, then ye are welcome to absorb it (in your wealth).

19‫سورۃاالنساء آیت مبارکہ‬

ُ ‫ٰٰۤیا َ ُّی َها الذ ِۡی َن ٰا َم ُن ۡوا ََل َی ِح ُّل لَـ ُكمۡ اَ ۡن َت ِر ُث ۡوا ال ِّن َسآ َء َك ۡرها َو ََل َت ۡع‬
‫ضلُ ۡوهُن لِ َت ۡذ َهب ُۡوا‬
‫ض َم ٰۤا ٰا َت ۡی ُتم ُۡوهُن ا َِٰۤل اَ ۡن ی ۡات ِۡی َن ِب َفا ِح َشة ُّم َب ِّی َنة َو َعاشِ ر ُۡوهُن ِب ۡال َم ۡعر ُۡوفِ َفا ِۡن‬ِ ‫ِب َب ۡع‬
﴾۱۹﴿ ‫ّللاُ ف ِۡی ِه َخ ۡیرا َكث ِۡیرا‬ ٰ
ٰ ‫َك ِر ۡه ُتم ُۡوهُن َف َع ٰس ٰۤى اَ ۡن َت ۡك َره ُۡوا َش ۡیــا و َی ۡج َع َل‬

‫مومنو! تم کو جائز نہیں کہ زبردستی عورتوں کے وارث بن جاؤ۔ اور (دیکهنا) اس‬
‫نیت سے کہ جو کچه تم نے ان کو دیا ہے اس میں سے کچه لے لو انہیں (گهروں‬
‫میں) میں مت روک رکهنا ہاں اگر وه کهلے طور پر بدکاری کی مرتکب ہوں (تو‬
‫روکنا مناسب نہیں) اور ان کے ساته اچهی طرح رہو سہو اگر وه تم کو ناپسند ہوں تو‬
‫عجب نہیں کہ تم کسی چیز کو ناپسند کرو اور خدا اس میں بہت سی بهالئی پیدا‬
﴾۱۹﴿ ‫کردے‬
)‫ فتح محمد جالندهری‬:‫(ترجمہ‬
‫‪W.P.No.2111 of 2013‬‬ ‫‪-11-‬‬

‫‪O ye who believe! It is not lawful for you forcibly to inherit the‬‬
‫‪women (of your deceased kinsmen), nor (that) ye should put‬‬
‫‪constraint upon them that ye may take away a part of that which ye‬‬
‫‪have given them, unless they be guilty of flagrant lewdness. But‬‬
‫‪consort with them in kindness, for if ye hate them it may happen that‬‬
‫﴿‪ye hate a thing wherein Allah hath placed much good. ﴾19‬‬

‫سورۃالنساء آیت مبارکہ‪24‬‬

‫ت مِن ال ِّنسآء اَِل ما ملَ َك ۡت اَ ۡیما ُن ُكمۡ ؕ ك ِٰت ٰ‬
‫ّللا َعلَ ۡی ُكمۡ ؕ َواُحِل لَـ ُكمۡ ما َو َرآ َء‬ ‫ب ِٰ‬ ‫َ‬ ‫َ‬ ‫َ َ‬ ‫ص ٰن ُ َ َ ِ‬ ‫و ۡالم ُۡح َ‬
‫ٰذلِ ُكمۡ اَ ۡن َت ۡب َت ُغ ۡوا ِبا َ ۡم َوالِ ُكمۡ م ُّۡحصِ ن ِۡی َن َغ ۡی َر ُم َسافِح ِۡی َنؕ َف َما ۡ‬
‫اس َت ۡم َت ۡع ُتمۡ ِبه م ِۡنهُن َف ٰا ُت ۡوهُن‬
‫ٰ‬
‫ض ِةؕ اِن ٰ َ‬
‫ّللا‬ ‫ض ۡی ُتمۡ ِبه م ِۡن َب ۡع ِد ۡالـ َف ِر ۡی َ‬
‫ضة ؕ َو ََل ُج َنا َح َعلَ ۡی ُكمۡ ف ِۡی َما َت ٰر َ‬ ‫اُج ُۡو َرهُن َف ِر ۡی َ‬
‫ان َعل ِۡیما َحك ِۡیما ﴿‪﴾۲۴‬‬ ‫َك َ‬
‫اور شوہر والی عورتیں بهی (تم پر حرام ہیں) مگر وه جو (اسیر ہو کر لونڈیوں کے‬
‫طور پر) تمہارے قبضے میں آجائیں (یہ حکم) خدا نے تم کو لکه دیا ہے اور ان‬
‫(محرمات) کے سوا اور عورتیں تم کو حالل ہیں اس طرح سے کہ مال خرچ کر کے‬
‫ان سے نکاح کرلو بشرطیکہ (نکاح سے) مقصود عفت قائم رکهنا ہو نہ شہوت رانی تو‬
‫جن عورتوں سے تم فائده حاصل کرو ان کا مہر جو مقرر کیا ہو ادا کردو اور اگر‬
‫مقرر کرنے کے بعد آپس کی رضامندی سے مہر میں کمی بیشی کرلو تو تم پر کچه‬
‫گناه نہیں بےشک خدا سب کچه جاننے واَل (اور) حکمت واَل ہے ﴿‪﴾۲۴‬‬
‫(ترجمہ‪ :‬فتح محمد جالندهری)‬
‫‪And all married women (are forbidden unto you) save those‬‬
‫‪(captives) whom your right hands possess. It is a Decree of Allah for‬‬
‫‪you. And lawful unto you are all beyond those mentioned, so that ye‬‬
‫‪seek them with your wealth in honest wedlock, not debauchery. And‬‬
‫‪those of whom ye seek content (by marrying them ), give unto them‬‬
‫‪their dowries as a duty. And there is no sin for you in what ye do by‬‬
‫‪mutual agreement after the duty (hath been done). Lo! Allah is ever‬‬
‫‪Knower, Wise.‬‬

‫سورۃاالحزاب آیت مبارکہ‪50‬‬

‫ك مِم ٰۤا‬‫ت اُج ُۡو َرهُن َو َما َملَـ َك ۡت َیم ِۡی ُن َ‬ ‫ك ا ٰلٰت ِٰۤۡى ٰا َت ۡی َ‬ ‫ك اَ ۡز َو َ‬
‫اج َ‬ ‫ٰۤؕ ٰیااَ ُّی َها الن ِبىُّ اِن ٰۤا اَ ۡحلَ ۡل َنا لَـ َ‬
‫ك ا ٰلٰت ِۡى َه َ‬
‫اج ۡر َن‬ ‫ت ٰخ ٰل ِت َ‬
‫ك َو َب ٰن ِ‬ ‫ت َخالِ َ‬ ‫ِك َو َب ٰن ِ‬ ‫ت َع ٰ ٰمت َ‬ ‫ك َو َب ٰن ِ‬‫ت َع ِّم َ‬ ‫ك َو َب ٰن ِ‬ ‫اَ َفآ َء ٰ ٰ‬
‫ّللاُ َعلَ ۡی َ‬
‫صة ً‬ ‫َم َع َك َوا ۡم َراَة م ُّۡؤ ِم َنة ا ِۡن و َه َب ۡت َن ۡف َس َها لِلن ِبىِّ ا ِۡن اَ َرا َد الن ِبىُّ اَ ۡن ی ۡس َت ۡـنك َِح َها خَالِ َ‬
‫اج ِهمۡ َو َما َملَـ َك ۡت‬ ‫ضنَا َعلَ ۡي ِهمۡ فِ ۡۤۡى اَ ۡز َو ِ‬‫ك ِم ۡن ُد ۡو ِن ۡال ُم ۡؤ ِم ِن ۡينَ ؕ قَ ۡد َعلِمۡ نَا َما فَ َر ۡ‬ ‫لَّـ َ‬
‫ّللاُ َغ ُف ۡورا رح ِۡیما ﴿‪﴾۵۰‬‬ ‫ان ٰ ٰ‬ ‫اَ ۡي َمانُهُمۡ ِل َك ۡي ََل َيکو َن َعلَ ۡی َك َح َرج ؕ َو َك َ‬
W.P.No.2111 of 2013 -12-

‫اے پیغمبر ہم نے تمہارے لئے تمہاری بیویاں جن کو تم نے ان کے مہر دے دیئے ہیں‬

)‫حالل کردی ہیں اور تمہاری لونڈیاں جو خدا نے تم کو (کفار سے بطور مال غنیمت‬
‫دلوائی ہیں اور تمہارے چچا کی بیٹیاں اور تمہاری پهوپهیوں کی بیٹیاں اور تمہارے‬
‫ماموؤں کی بیٹیاں اور تمہاری خاَلؤں کی بیٹیاں جو تمہارے ساته وطن چهوڑ کر آئی‬
‫ہیں (سب حالل ہیں) اور کوئی مومن عورت اگر اپنے تئیں پیغمبر کو بخش دے (یعنی‬
‫مہر لینے کے بغیر نکاح میں آنا چاہے) بشرطیکہ پیغمبر بهی ان سے نکاح کرنا چاہیں‬
‫(وه بهی حالل ہے لیکن) یہ اجازت (اے محمدﷺ) خاص تم ہی کو ہے سب‬
‫مسلمانوں کو نہیں۔ ہم نے ان کی بیویوں اور لونڈیوں کے بارے میں جو (مہر واجب‬
‫اَلدا) مقرر کردیا ہے ہم کو معلوم ہے (یہ) اس لئے (کیا گیا ہے) کہ تم پر کسی طرح‬
﴾۵۰﴿ ‫کی تنگی نہ رہے۔ اور خدا بخشنے واَل مہربان ہے‬

)‫ فتح محمد جالندهری‬:‫(ترجمہ‬

O Prophet! Lo! We have made lawful unto thee thy wives unto whom
thou hast paid their dowries, and those whom thy right hand
possesseth of those whom Allah hath given thee as spoils of war, and
the daughters of thine uncle on the father's side and the daughters of
thine aunts on the father's side, and the daughters of thine uncle on
the mother's side and the daughters of thine aunts on the mother's
side who emigrated with thee, and a believing woman if she give
herself unto the Prophet and the Prophet desire to ask her in
marriage - a privilege for thee only, not for the (rest of) believers -
We are Aware of that which We enjoined upon them concerning their
wives and those whom their right hands possess - that thou mayst be
free from blame. And Allah is ever Forgiving, Merciful.

14. We are mindful of the fact that by virtue of entries in the

Nikahnama, it is always bridegroom, who is on the receiving end and he
has to be burdened with the liabilities under the entries in the
Nikahnama. In view of well settled principles of law, such interpretation
to the entries of Nikahnama would be given, which favour the
bridegroom. Even otherwise, while interpreting the document, one has
to infer plenary meaning therefrom and nothing can be imported beyond
the contents of the document. We thus are inclined to concur with the
view taken by the learned Single Judge in the case of Syed NADEEM
W.P.No.2111 of 2013 -13-

RAZA through Attorney General v. Mst. AMNA-TUZ-ZAHRA and 2

others (2011 CLC 726 Lahore) instead of Mst. IRAM SHAHZADI v.
MUHAMMAD IMRAN-UL-HAQ and others(2019 MLD 112 Lahore).
The relevant extract from the case of “Syed NADEEM RAZA through
Attorney General” supra is reproduced below: -

“6. Even otherwise by carefully examining the pleadings of

the parties, it is clear that petitioner/defendant had specifically
mentioned in para No.2 of his written statement that the agreed
upon dower had been paid to the plaintiff through her father on 3-
5-1993. The words “agreed upon dower” (‫ )طے شدہ حق مہر‬do
indicate that he specifically referred to a specific amount and
dower which was agreed at the time of marriage i.e. one
mentioned in Column No.13 of the Nikahnama, Exh.P2.

7. The para No.2 of the plaint filed by the respondent itself is

quite ambiguous wherein she mentioned that the Nikah and
marriage was ceremonized on following conditions: ---

(a) Rs.5 lac dower amount payable on demand;

(b) Built up house upon an area of 20 Marlas at

Multan;

(c) One square agricultural land situated at Chak

Shah Muhammad, Bahawalnagar Farm, District Okara;

(d) Respondent will allow the plaintiff to carry on her

education according to her own will.

8. From the above contents of para No.2 of the plaint except

for amount mentioned at serial (a), the rest of the covenants
mentioned at serial Nos. (b), (c) and (d) have been mentioned as
the conditions of the marriage and it is not mentioned that the
items (b) and (c) are the part of dower amount. The conditions of
“marriage” and the “dower” are by no means to stand on equal
pedestal as the former is not the condition precedent of Nikah,
whereas without fixation of dower, the concept of Nikah is
inconceivable.

9. Apart from pleadings of the parties, the format of

Nikahnama Exh.P2 and the contents thereof are to negate the
arguments advanced by the learned counsel for the
respondent/plaintiff to the effect that the entries made in Column
No.16 of the said Nikahnama are to be read along with the entries
of Column No.13 of the same, constituting a single bigger whole
dower payable to the bride by the bridegroom. The court finds no
nexus between the entries of Column No.13 and the Column
No.16 of the Nikahnama except in circumstances, when all or part
of any dower amount has been paid in shape of kind and in case
nothing has been paid in shape of kind in lieu of fixed dower, then
any entry made therein would be superfluous, needless and
dispensable. In Column No.13, the total of the dower amount is to
W.P.No.2111 of 2013 -14-

be mentioned as it is worded, “amount of dower” (‫)مہر کی رقم‬. In

the present case, this column bears the entry, “Rs. 5 lac, payable
on demand” (‫)پانچ الکه روپے عندالطلب‬. Column No.16 is worded, “if
dower or portion of the same has been paid by virtue of some
property and if so what is the nature of the property and what
value of the same has been determined between the parties”.

‫آيا پورے مہر يا اس کے کسی حصے کے عوض ميں کوئی جائيداد ديگئی ہے اگر‬
‫دی گئی ہے تو اس جائيداد کی صراحت اور اس کی قيمت جو فريقين کے مابين‬
‫طے پائی ہے۔‬

10. The wording of the said column is crystal clear to indicate

that it refers to past transaction. It never covenants between the
parties for some future liability, rather the same is considered as
an explanation for an act done in compliance and in furtherance
to agreed amount of payable dower.

11. It is pertinent to note that the learned Judge Family Court,

while deciding the issue with regard to determination of payable
dower only decided the fact that the dower was not proved as
having been paid as pleaded by the defendant, whereas no
specific determination of the fact has been made that what was the
fixed dower between the parties. The learned Additional District
Judge dismissed the appeal without touching the merits of the
case and held that the appeal was incompetent because, the
specifically ordered about the bond of Rs.5 lac by the lower court,
to be deposited by the defendant, was never complied with. Both
of the judgments are even not to stand with the requirements of
the C.P.C. vis-à-vis, term, “judgement”. Such generalization is
not acceptable nor so are expected from the judicial officers qua
required deliberation upon each and every fact in the light of
relevant law with due application of mind. While setting-aside the
judgments, the suit is decreed only to the amount of Rs.5 lac
payable as dower. Writ petition is accepted.”

15. Next comes question-B. It is reiterated that marriage is a

civil contract. It establishes a firm bond of love, confidence, affection
and mutual trust interse spouses. Allah Almighty, in Holy Qur’an
describes the relationship between the spouses as raiment worn to cover
the body and says that “women were your garments and men are their
apparel”. The Nikahnama in the Form annexed with the “Rules 1961”
contributes to the confusion leading to recording of terms of the
marriage contract in the wrong columns. Manifestly, column No.13 for
example seeks information in terms of the amount of dower whereas it
is settled law that dower can be in the form of an amount, tangible or
intangible property. This Court has been approached by the parties with
claim to the effect that movable and immovable properties specified in
W.P.No.2111 of 2013 -15-

column No.13 are not enforceable for the said column only visualizes
dower in terms of an amount. Column No.16 of the Nikahnama Form
on the other hand postulates a question regarding property while
treating that to be only in lieu of whole or any portion of the property
and value thereof agreed between the parties so that it is clearly stated
that the property in column No.16 is for how much part of the dower
specified in column No.13 of the Nikahnama Form. Why is there no
specific column in the Nikahnama Form regarding movable and/or
immovable property in addition to the amount of dower in column
No.13? If no value of the property is agreed between the parties and
specified in the entry in column No.16 of a Nikahnama, can such
property be treated to be in lieu of dower or any part thereof? If so, in
lieu of how much part of the dower? How would intentions of the
parties in specifying a property in column No.16 of the Nikahnama be
construed where the amount of dower specified in column No.13 was
promptly paid in entirety at the time of marriage? These are a few,
amongst many, questions arising from the confusion caused by the
manner in which Nikahnama Form has been prescribed and/or filled in.
We are mindful of the fact that while making entries in the Nikahnama,
oftenly in column No.16, some immovable property is incorporated,
which sometimes owned by the mother or father of the bridegroom. It is
oft repeated principle that no one can be deprived of his property
without due course of law. If the property mentioned in Nikahnama is
not owned by the bridegroom, rather it is ownership of his father,
mother or brother, who is neither signatory to the Nikahnama nor had
agreed to transfer the same in favour of bride, entries in Nikahnama
cannot be enforced against him/her and he/she cannot be deprived of
his/her property. Guidance in this respect can be sought from FAWAD
ISHAQ and others v. Mst. MEHREEN MANSOOR and others (PLD
2020 Supreme Court 269).

16. The situation, however, would become different when on

behalf of bridegroom, his father, mother or any other person being
W.P.No.2111 of 2013 -16-

owner of such property find mentioned in the Nikahnama becomes

signatory of the Nikahanam, he/she binds himself/herself to the terms
and conditions and as such, he/she parts with the ownership rights of the
property in favour of bride. Reference in this respect can be made to
“Mst. RAZIA BEGUM v. JANG BAZ and 3 others” (2012 CLC 105
Lahore), “MUHAMMAD ANWAR KHAN v. SABIA KHANAM and
another” (PLD 2010 Lahore 119), Mst. SHUMAILA BIBI v. ZAHIR
KHAN and 3 others (PLD 2015 Peshawar 182) and GUL AKBAR and
another v. JAMEELA AFRIDI and 4 others (PLD 2016 Peshawar 109).

17. Now coming to the merits of cases at hand, we have

noticed that in W.P.No.2111 of 2013, petitioner No.1 is owner of 5-
Marlas whereas rest 5-Marlas belong to his father/petitioner No.2, who
was also signatory to the Nikahnama. In this situation, in view of
discussion made hereinabove, both petitioners No.1 and 2 will become
liable equally. We since have already observed that entry in column
No.13 is rider to entries in columns No.14, 15 and 16, so respondent
No.1 in the first instance can lay her claim with regard to Rs.5,00,000/-
as dower mentioned in column No.13 and if due to any reason, dower is
not paid to her then she would become entitled to the property
mentioned in column No.16 in lieu thereof.

18. It is though contention of learned counsel for petitioners

No.1 and 2 that dower in shape of Rs.5,00,000/- has already been paid
to respondent No.1 and to this effect he has mainly relied upon
statement of Major (Retd.) Sohail Anjum Khan (DW-3) but after having
apprised the statement of said witness, we are in agreement that
petitioners No.1 and 2 have failed to prove that they have paid the
dower amounting to Rs.5,00,000/-. We thus hold that impugned
judgment and decree dated 4th June, 2013 passed by the learned
Additional District Judge, Taxila holding the respondent No.1 entitled
for Rs.5,00,000/- as well as plot measuring 10-Marlas as dower is not
tenable to the extent of plot. As such it is accordingly modified. As a
W.P.No.2111 of 2013 -17-

sequel, suit of respondents No.1 and 2 to the extent of Rs.5,00,000/- as

dower stands decreed.

19. Coming to the second petition i.e. W.P.No.2716 of 2019,

we have noticed that initially suit instituted by petitioner No.3 was
decreed vide judgment dated 26th April, 2019 in the following manner: -

“26. Keeping in view of my findings on above said issue, the

suit of the plaintiffs is hereby partially decreed to the effect that: -

(i) The plaintiff is entitled to receive dower amount of Rs.100000/-

from the defendant.

(ii) ….

(iii) The plaintiff is entitled to receive possession of house as

per share of defendant, as per column No.16 of
nikahnama, situated in Village Mousa Tehsil Hazro
District Attock from defendant or its alternate market
value which would be determined at the time of execution
proceedings, if possession of house could not be given to
plaintiff due to any reason…..”

Respondent No.3 feeling aggrieved preferred an appeal before the

learned Additional District Judge, Attock, who while allowing the
appeal set aside the judgment of the learned Judge Family Court to the
extent of house mentioned in column No.16 of Nikahnama.

20. Since it is an admitted fact that house in question was

owned by father of the bridegroom and he was neither signatory to the
Nikahnama nor he has given any consent for the transfer of the same in
favour of his daughter-in-law, so petitioner No.3 was precluded to claim
said house. We thus see no legal infirmity in the judgment dated 26 th
June, 2019 passed by the learned Additional District Judge, Attock in
this regard.

21. For the foregoing reasons, we partly allow W.P.No.2111

of 2013 on the terms mentioned in para-18. No order as to costs.

22. Before parting, we must observe that the above noted

anomalies oftenly occur due to incompetency or willful fault on the part
of Nikah Registrars, who ordinarily avoids the adherence to the “Rules,
W.P.No.2111 of 2013 -18-

1961”. In order to avoid such problems in future, we would like to issue

direction to all the Nikah Registrars to ensure compliance of Rules 7 to
13 of the “Rules, 1961” while recording entries in the Nikahnama. They
shall also avoid from incorporating any entry other than allowed in
Nikahnama and take special care while making entries in columns
No.13 to 16. The Nikah Registrars shall only record the entry of dower
in column No.13 whatever is fixed by the parties as dower. We also
issue following directions:-

A. The Federal Government and Provincial

Government of Punjab are directed to amend column
No.13 of the Nikahnama as follows:-

13. Dower:

(i) Amount in cash__________

(ii) Moveable property________

(iv) Immovable property with specification ___

____________________________________

B. The Federal as well as Provincial Government are

directed to prescribe minimum educational qualification
for the grant of licence to the Nikah Registrar in pursuance
of Rule 5 (2) of the “Rules, 1961” and make arrangement
for their proper training.

C. Till such time the Nikahnama Form prescribed

under Rule 8 of the Rules is suitably amended, each case
shall be decided on its own facts and circumstances
keeping in view intention of the parties as expressed in the
Nikahnama.

23. Needless to observe that if the parties are desirous to fix

some other beneficial condition in addition to dower, they should
W.P.No.2111 of 2013 -19-

execute an independent instrument to that effect instead of

intermingling the same with the dower. If there is some negligence on
the part of Nikah Registrars in adhering the above directions, he shall be
made liable to be proceeded in accordance with law. Office to circulate
this judgment to all concerned.

(RAHEEL KAMRAN) (MIRZA VIQAS RAUF)

JUDGE JUDGE

Announced in open Court on 13.12.2021.

Approved for reporting.

JUDGE JUDGE.
Zeeshan*