Stereo. H C J D A 38.

JUDGMENT SHEET
IN THE LAHORE HIGH COURT
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT

Civil Revision No. 379-D of 2011.

Mannan Feroz.
Versus
Shomaila.

JUDGMENT

Date of hearing. 27.05.2014.

Petitioner by: Javaid Ahmad Khan Advocate
Respondent by: Syed Muhammad Ali Gillani Advocate

SHEZADA MAZHAR, J: Through the present civil

revision, petitioner has challenged the judgment and decree dated
20.01.2011 passed by the learned Additional District Judge, Sahiwal
whereby he accepted the appeal filed by the respondent and set-aside
the order of learned Civil Judge, Sahiwal.

2. Facts necessary for the disposal of the present civil revision are
that marriage of petitioner and respondent was contracted on
12.04.1992, however, it was got registered under the Family Law
Ordinance, 1961 on 09.12.1992. Spouses concieved a son namely
Nauman Feroz. After Nikah some dispute arose between the parties, so,
the respondent filed writ petition No.2871/1992 before this Court
whereby parties came into a compromise, in consequence whereof
dower of respondent was fixed at Rs.100,000/-. According to the
Civil Revision No. 379-D of 2011. 2

condition contained in column No.17 of the Nikahnama, petitioner

agreed to pay Rs.2,00,000/- in case of pronouncing divorce to the
respondent. Again dispute arose between the parties and therefore,
respondent filed a suit for recovery of dower amount of Rs.300,000/-
which was decreed to the extent of Rs.1,00,000/- and to the extent of
remaining Rs.2,00,000/-, the respondent was asked to approach Civil
Court, if she so desired. Respondent filed a suit for recovery of
Rs.2,00,000/- on 30.05.2002 in the Court of learned Senior Civil Judge,
Sahiwal, which was contested by the petitioner by raising legal and
factual grounds. Out of the divergent pleadings of the parties, issues
were framed. Parties led their oral as well as documentary evidence.
Learned Civil Judge, Sahiwal after hearing the arguments, dismissed
the suit vide judgment and decree dated 21.05.2010. Feeling aggrieved
of the said judgment and decree, respondent filed an appeal before
learned District Judge, Sahiwal which was allowed vide impugned
judgment and decree dated 20.01.2011. In the present civil revision,
petitioner has assailed the judgment and decree dated 20.01.2011 of
learned lower Appellate Court.

3. Learned counsel for the petitioner submits that the learned first
appellate Court has wrongly construed the condition imposed in
column No.17 of the Nikahnama as compensation. Further submits that
the impugned judgment is in violation of the law laid down by the
Hon’ble Supreme Court in “Muhammad Bashir Ali Siddiqui Vs. Mst.
Sarwar Jahan Begum and other” (2008 SCMR 186) wherein it has been
held that any condition embodied in the Nikahnama by way of safety
and prolongation of marriage contact, is in violation of the Shariah
Laws.

4. On the other hand, learned counsel appearing on behalf of the

respondent submits that the judgment referred to by the learned counsel
for the petitioner has no application to the case in hand as the same was
arises from the family suit whereas the present case arises from the
civil suit; that any condition in case of unjustified divorce by the
husband would be termed as actionable claim and becomes operative
on divorce as held by this Hon’ble Court in case “Muhammad Arshad
Civil Revision No. 379-D of 2011. 3

Latif Vs. Civil Judge and three others” reported as (PLD 2004 Lahore
588). Learned counsel further submits that any condition imposed on
the husband’s right of divorce, is not contrary to the Sharia laws. In
support of his contention, leaned counsel for the respondent relied upon
the case “Mst. Shaista Shahzad and another Vs. Additional District
Judge, and others” (PLD 2012 Lahore 245) and “Syed Mukhtar
Hussain Shah Vs. Mst. Saba Imtiaz and others” (PLD 2011 SC 260).

5. Arguments heard, record perused.

6. The moot point in this civil revision is whether the law laid down
by the Hon’ble Supreme Court in “Muhammad Bashir Ali Siddiqui Vs.
Mst. Sarwar Jahan Begum and other” (2008 SCMR 186), is applicable
to the case in hand or not?

7. Perusal of the said judgment reveals that a suit for obtaining

dissolution of marriage on the ground of Khula was filed before the
Family Court which was decreed by the Family Court. Against the said
decree, husband filed a constitutional petition which was dismissed by
the High Court of Sindh. It was stated in the said judgment that when
confronted with the question as to whether parties could place
restriction on their respective rights given to them by Shariat Law, the
learned counsel for the petitioner was unable to advance any plausible
ground.

8. In the present case, respondent earlier approached the Family

Court, for her claim of dower as well as the inference of condition
mentioned in clause 17 of the Nikahnama. In the said family suit,
respondent was granted Rs.1,00,000/- on account of prompt dower,
however, for the remaining claim of Rs.2,00,000/-, she was directed to
approach the Civil Court. Respondent approached civil Court through a
suit for recovery of Rs.2,00,000/- on the basis of condition mentioned
in column 17 of the Nikahnama. The said claim was an actionable
claim under the contract. The said claim can be pressed into service
through civil Court. In this regard reference is made to “Syed Mukhtar
Hussain Shah Vs. Mst. Saba Imtiaz and others” (PLD 2011 SC 260)
has held as under:-
Civil Revision No. 379-D of 2011. 4

“The definition of “actionable claim” in the TPA is

strictly an exclusively relatable to the operative provisions
of Chapter VIII of that 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
two others (supra) 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.”

In the case in hand, admittedly, family suit was filed wherein

respondent was directed to approach civil Court. The civil Court,
Civil Revision No. 379-D of 2011. 5

dismissed the suit and in appeal, learned Additional District Judge,

decreed the suit which was challenged before this Court on the sole
ground of the judgment of the Supreme Court in “Muhammad Bashir
Ali Siddiqui Vs. Mst. Sarwar Jahan Begum and other” (2008 SCMR
186), and stated that the condition is illegal.

9. I am afraid, interpretation placed by the learned counsel for the

petitioner has no force. A Muhammadan wife can lawfully stipulates
for her divorce under Contract then she can also raise any claim based
on the said contract apart from the dower fixed at the time of contract
of Nikah. Any such stipulation cannot be termed as against public
policy or against Muhammadan Law. Any claim raised on the basis of
such stipulation arisen out of the contract/Nikah can be safely termed as
actionable claim and can be enforced through Court of competent
jurisdiction. The same view was taken by this Court in case “Mst.
Shaista Shahzad and another Vs. Additional District Judge and others”
reported as (PLD 2012 Lahore 245) wherein it was held as under:-

“It is understandable that if a Muhammadan 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 Mohammadan Law. Any claim on the basis of
such stipulation arising out of the civil liability can be
safely termed as “actionable claim”.

The case of the petitioner is not that the condition is a result of

interpolation or some fraud played upon the petitioner. The only ground
taken by the petitioner is of the dictum of the Hon’ble Supreme Court’s
judgment which I am afraid not applicable to the present case. Even
otherwise, in “Syed Mukhtar Hussain Shah Vs. Mst. Saba Imtiaz and
others” (PLD 2011 SC 260) also held that condition imposed upon a
right of Talaq cannot be enforced through suit before any Family Court
and for that purpose, Civil Court has exclusive jurisdiction. In the said
Civil Revision No. 379-D of 2011. 6

judgment, Hon’ble Supreme Court, has not held the condition imposed
on divorce as against Muhammadan Law or against public policy.

10. In view of the above, this civil revision has no force which fails
and the same is hereby dismissed.

(Shezada Mazhar)
Judge

APPROVED FOR REPORTING.

JUDGE

!mran*