' SHEZADA MAZHAR, J.---Through the present civil revision, petitioner has challenged the judgment and decree dated 20-1-2011 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 12-4-1992, however, it was got registered under the Muslim Family Law Ordinance, 1961 on 9-12-1992. Spouses conceived 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 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 30-5-2002 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 21-5-2010. 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 20-1-2011. In the present civil revision, petitioner has assailed the judgment and decree dated 201-2011 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 v. Mst. Sarwar Jahan Begum and others" (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 Latif v. Civil Judge and 3 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, learned counsel for the respondent relied upon the case "Mst. Shaista Shahzad and another v. Additional District Judge, and others" (PLD 2012 Lahore 245) and "Syed Mukhtar Hussain Shah v. 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 v. Mst. Sarwar Jahan Begum and others" (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:-- "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 2 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, 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 v. Mst. Sarwar Jahan Begum and others" (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 stipulate 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 v. 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 v. Mst. Saba Imtiaz and others" (PLD 2011 SC 260) also I 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 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.