Arbab Muhammad Tahir, J.- Through this common judgment, this Court shall decide the listed petition alongwith the following connected petitions as they involve common questions of law.- (i). W.P. No.322/2022, Zeshan Ali v. Yasmeen Bibi and others (ii). W.P. No.672/2023, Muhammad Ismail v. Additional District Judge-V, Islamabad and others (iii). W.P. No.1906/2023, Syeda Bint-e-Zehra v. Muhammad Ismail and another
2. The facts relevant for adjudication the petitions are as follows.- W.P. No.4233/2021 & W.P. No.322/2022 Zeeshan Ali and Yasmin Bibi entered into marriage contract on 16.11.2019. The amount of dower as per column No.13 was fixed as 2.5 tolas gold ornaments valuing Rs.228,000/- and Rs.5,000/- prompt dower; whereas, it was mentioned in column No.17 that in case of divorce the groom shall be bound to pay an amount of Rs.500,000/- to the bride. The maintenance allowance, as per column No.20 was fixed as Rs.5,000/- per month. Later due to matrimonial differences between the spouses, the marriage ended into divorce on 24.01.2020. On 12.02.2020, Yasmin Bibi instituted a family suit for recovery of maintenance allowance and Rs.500,000/- mentioned in column No.17 of the Nikahnama. The family suit was contested by Zeshan Ali. Both the parties adduced their respective evidence. Nikahnama containing the referred conditions is admitted between the parties. On conclusion of the proceedings, the learned Family Court vide judgment and decree, dated 12.07.2021, dismissed the suit of Yasmin Bibi to the extent of Rs.500,000/- mentioned in column No.17 whereas it was decreed to the extent of Rs.10,000/- per month as maintenance allowance for the period of Iddat. The reason advanced by the learned Family Court for dismissing the claim of Rs.500,000/-, is as follows.- "Thus while taking wisdom from above judgment of Hon'ble Lahore High Court, I am of the opinion that no restriction on the right of divorce of defendant could be imposed and any restriction so imposed cannot be termed as legal. The imposition of any such restriction would prevent the husband to pronounce divorce upon his wife despite the fact that he is of the opinion that their relations as spouses cannot be maintained within the limits prescribed by Allah Almighty.
Resultantly, the plaintiff is held disentitled for recovery of Rs.500,000/-. This issue is decided in negative."
The judgment and decree of the learned Family Court was assailed by the parties before the appellate court, however, the appeals were dismissed vide judgment and decree, dated 02.10.2021.
The referred order has been assailing through the W.P. No.4233/2021 & W.P. No.322/2022 filed by Zeshan Ali and Yasmin Bibi, respectively.
W.P. No.672/2023 & W.P. no.1906/2023 Muhammad Ismail and Syeda Bint-e-Zehra entered into marriage contract on 26.05.2020. The amount of dower as per column No.13 was fixed as Rs.500,000/- prompt dower, out of which Rs.100,000/- was cash and gold ornaments valuing Rs.400,000/-; whereas, it was mentioned in columns No.16, 17 and 20 that as per terms of the agreement, dated 21.05.2020 executed between parties relating to a Plot in B-17, description whereof has been given in the said agreement (i.e. Plot No.2464, Block E, B-17, Islamabad measuring 30'x60'). The Agreement, dated 21.05.2020 provides for multiple conditions, including that the house constructed on the plot will be the joint ownership of the parties. Later due to matrimonial differences between the spouses, they started living separately and as per written statement filed by Muhammad Ismail, the marriage ended in divorce on 11.12.2020. On 11.12.2020, Syeda Bint-e-Zehra instituted a family suit for recovery of maintenance allowance @ Rs.50,000/- per month; Rs.500,000/- as dower and the Plot mentioned in columns No.16, 17 and 20 of the Nikahnama. The family suit was contested by Muhammad Ismail. Both the parties adduced their respective evidence. Nikahnama containing the referred conditions is admitted between the parties. On conclusion of the proceedings, the learned Family Court vide judgment and decree, dated 14.05.2022 partially decreed the suit in the terms that she was held entitled to recover maintenance allowance at the rate of Rs.20,000/- per month, total Rs.60,000/-. Furthermore, she was also held joint owner of the property in B-17. Both the parties filed appeal, which were dismissed vide judgment and decree, dated 26.11.2022. The referred order has been assailed through the W.P.
No.672/2023 & W.P. No.1906/2023 filed by Muhammad Ismail and Syeda Bint-e-Zehra, respectively.
3. Learned counsel, representing Zeshan Ali and Muhammad Ismail (hereinafter "petitioners") have argued that; Islam bestows the right of divorce upon the husband whenever he feels that it has become impossible for the spouses to live within the divine limits; that such right of divorce cannot be made conditional to any financial liability; that the amount or property mentioned in column No.17 of the nikahnama is violative of the basic Islamic principles; that any condition against the injunctions of Islam is void and unenforceable; that even otherwise description mentioned in column No.17 of Nikahnama is in lieu of the dower mentioned in column No.13; that when it is proved by the groom that the bride has received the dower in full, then she is not entitled to claim anything mentioned in column No.17; that enforcement of conditions mentioned in column No.17 is conditional to non-payment of the dower mentioned in column No.13; that the learned Family Courts as well as the Appellate Courts have misread the evidence available on record; that the impugned judgments are a result of erroneous interpretations and application of law; that the impugned judgments are unreasonable and liable to be set-aside.
4. On the other hand, the learned counsel representing Yasmeen Bibi and Syeda Bint-e-Zehra (hereinafter "respondents") have argued that; marriage is a civil contract; that the terms and conditions of the nikahnama were agreed by the parties with free will and consent; that the nikahnamas are admitted between the respective parties; that it has time and again been held by the superior courts that while interpreting the columns of nikahnama intention of the parties has to be kept in mind; that it is a misconception that colum No.17 is distinct from any other entry made in nikahnama; that the entries made in columns No.13 to 17 are undertakings, to be read as part of dower; that nikahnama is a public document and presumption of truth is attached to it; that learned courts below have erroneously concluded that Syeda Bint-e-Zehra is the joint owner of the property, rather she should have been adjudged as the sole owner; that the suits instituted by the respondents ought to have been decreed as prayed for.
5. Heard. Record perused.
6. It was mainly argued on behalf of the petitioners (the grooms) that the respondents (the brides) that entries made in column No.17 cannot be termed as dower as it is a civil contract, determination whereof is outside the jurisdiction of the learned Family Court. It was further argued that imposition of conditions on the right of husband to pronounce divorce is against the Islamic principles, therefore, such a condition is void and not enforceable.
7. To begin with, this Court will first deal with the question of entries in nikahnama relating to dower.
Section 5(1) of the Muslim Family Laws Ordinance, 1961 (hereinafter the "Ordinance, 1961") provides that every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of the referred Ordinance. The West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 (hereinafter the "Rules"), have been framed under section 11 of the Ordinance, 1961.
Rule 8 of the Rules provides that the Union council shall, on payment of such cost as may be determined by the Provincial Government, supply to every Nikah Registrar a bound register of Nikahnamas in Form II, and a seal being inscription "The seal of the Nikah Registrar..." Columns No.13 to 17 of the Form II, to Rule 8 of the Rules are as follow.- "(13) Amount of dower
(14) How much of the dower is mu'wajjal; (prompt) and how much ghair mu'wajjal (deferred) ..................
(15) Whether any portion of the 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 its valuation agreed to between the parties ..................
(17) Special conditions, if any ............... "
8. The question, whether the entries of columns No.13 to 16 of the nikahnama are to be read conjunctively or disjunctively, was considered by the learned Lahore High Court in two cases. In the case Mst. Iram Shahzadi v. Muhammad Imran-ul-Haq and others (2019 MLD 112 Lahore), it was concluded that the entries are to be read disjunctively, whereas, in the case of Syed Nadeem Raza through Attorney General v. Mst. Amna-Tuz-Zahra (2011 CLC 726 Lahore) it was held that the same shall be read conjunctively. This anomaly was ultimately addressed by a Larger Bench of the learned Lahore High Court in the case of Wasif Ali and another v. Mrs Fakhra Jabeen and others (2023 CLC 1021 Lahore) in the following manner.- "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 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:-
9. In Attorney General's case, supra, the learned Lahore High Court had held that the format of Nikahnama and the contents thereof are sufficient to negate the arguments advanced by the learned counsel for the respondent/plaintiff to the effect that entries made in Column No.16 of the 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 wife by the husband. It was further held that there is 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.
10. The judgment passed by the Larger Bench of the learned Lahore High Court in Wasif Ali's case was examined in appeal by the Hon'ble Supreme Court in the recent reported judgment, dated 28.11.2024 passed in Civil Petition Nos.768 and 827 of 2022 titled Mst. Fakhra Jabeen v. Wasif Ali and another and was set-aside. Hon'ble Supreme Court in Mst. Fakhra Jabeen's case, inter alia, discussed in detail the background of the Ordinance, 1961 and the concept of dower. It was held that "It appears that the aforementioned principles laid down by this Court regarding the interpretation relating to an executed Nikah nama were not brought to the attention of the High Court, resulting in misconstruing the portion relating to dower and erroneously declaring the headings to be sacrosanct and conclusive. The entry in column no. 13 is definitely not a rider to entries in columns no. 14, 15 and 16 as was held by the High Court." The Supreme Court in the referred judgment relied upon its earlier judgment titled Haseen Ullah v. Mst. Naheed Begum and others (PLD 2022 SC 686) wherein it has been held that the Nikahnama is a deed of marriage contract entered into between the parties, its clauses/columns/context are to be construed and interpreted in the light of the intention of the parties and that headings are not sufficient to determine the intention of the two parties to the Nikahnama i.e. the husband and wife. It was held in Mst. Fakhra Jabeen's case that "The headings of the prescribed form of the Nikahnama are, therefore, guidance of the parties and they do not enjoy the status of conclusively determining the intention of the parties. The possibility that the entries made in the columns may not be correct or that some essential information may have been left out cannot be ruled out. The correctness of the entries also depends on the competence, knowledge and experience of the licensed Nikah Registrar."
11. Insofar as jurisdiction of the learned Family Court relating to entries made in the columns of Nikahnama is concerned, the Hon'ble Supreme Court in the case titled Yasmeen Bibi v.
Muhammad Ghazanfar Khan and others (PLD 2016 SC 613) has held that undertaking given in the "Nikah Nama", that certain landed property is to be transferred to the wife is conclusive in nature and may be construed as a part of dower or a gift in consideration of marriage therefore, falling within the exclusive domain of the Family Court. The argument of the learned counsel for the petitioners that the learned Family Court lacks jurisdiction relating to entries made in the nikahnama other than column No.13 is, therefore, misconceived.
12. The learned counsel for petitioners have yet raised another question that pronouncing divorce is the right of the husband and no conditions can be imposed upon such right of the husband. In this regard it is highlighted that Nikahnama is a civil contract between a man and a woman, setting out the terms and conditions of their marriage. It is governed by principles of contract law, requiring essential elements such as offer and acceptance by parties competent to marry. Competency includes legal capacity and free consent. The marriage contract must be concluded in the presence of required witnesses and include a specified mahr (dower). As a legally binding agreement, the Nikahnama secures the rights and obligations of both spouses enforceable in family courts. In the absence of any allegation relating to absence of free will and consent, fraud and misrepresentation, the parties to the Nikahnama are bound to adhere to the terms and conditions mentioned therein. The husband while agreeing to the terms and conditions of the nikahnama acts with his free will and consent and agrees to the condition that in case he pronounces divorce, the wife shall be entitled to a particular financial benefit or ownership of certain property. The said property becomes the personal property of the wife at the time of pronouncement of divorce by husband. Section 5 of the Family Courts Act, 1964 provides that subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule. Item No.9 of the Schedule to section 5 Family Courts Act, 1964 vests jurisdiction in the Family Court to adjudicate claims relating to personal property and belongings of a wife. The divorce may culminate the relationship of the spouses, but it is a matter arising out of the matrimonial bond. The Family Court is thus vested with jurisdiction to adjudicate claims relating to entries made in column No.17 of the nikahnama as well. The objection raised by the learned counsel is thus not tenable in law.
13. In view of the above, it is therefore concluded that the columns in the Nikahnama are meant for guidance of the parties, which do not enjoy the status of conclusively determining the intention of the parties. The Courts while determining rights and obligations of the parties in light of the entries made in the columns of Nikahnama shall give due consideration to the intention of the parties, rather than being carried away by the headings thereof.
14. Reverting to merits of the cases, W.Ps No. 322/2022 and 4233/2021 have been filed by Zeeshan Ali and Yasmeen Bibi, respectively. They have assailed the concurrent findings of the learned Family Court as well as the Appellate Court dated 12.07.2021 and 02.10.2021. Yasmin Bibi instituted a family suit for recovery of maintenance allowance and Rs.500,000/- mentioned in column No.17 of the Nikahnama. The learned Family Court after recording of evidence decreed the suit to the extent of maintenance allowance at the rate of Rs.10,000/- per month, whereas, to the extent of Rs.500,000/- mentioned in column No.17 of nikahanam, the same was found unenforceable being in the nature of imposing restriction on the Islamic right of divorce of the husband. The judgment and decree was upheld by the Appellate Court as well. The Nikahnama (Exh.P2) is admitted between the parties. The determination to the extent of maintenance allowance is based on the evidence of the parties, which cannot be disturbed in writ jurisdiction. However, in light of the above discussion, the declaration of entry made in column No.17 of nikahnama (Exh.P2) to be un-Islamic and the consequent dismissal of the claim in the family suit to that extent is based on erroneous interpretation of the law, liable to be set-aside.
15. W.Ps. No.672/2023 and 1906/2023 have been filed by Muhammad Ismail and Syeda Bint-e- Zehra, respectively, assailing concurrent findings of the learned Family Court as well as the Appellate Court. Syeda Bint-e-Zehra had instituted the suit for recovery of maintenance allowance at the rate of Rs.50,000/- per month; Rs.500,000/- as dower and the Plot mentioned in columns No.16, 17 and 20 of the Nikahnama. The family suit was decreed to the extent of maintenance allowance at the rate of Rs.20,000/- per month (total Rs.60,000/-), whereas, it was dismissed to the extent of amount of dower i.e. Rs.500,000/-. Furthermore, Syeda Bint-e-Zehra was held as joint owner of the House/plot No.2464, Block E, Sector B-17, Islamabad measuring 30x60 sq. ft. The determination to the extent of plot/house was made on the basis of entries made in column No.16, 17 and 20 of nikahnama (Exh.P2), wherein reference to "Iqrarnama" No.655, dated 21.05.2020 (Exh.P3) executed between the parties has been made. One of the terms and conditions of the Iqrarnama (Exh.p3) was that the house to be constructed on the plot will be the joint ownership of the parties. As held above, nikahnama is a civil contract and both the husband and the wife are equally bound to adhere to the terms and conditions of the same. Insofar as, the dismissal of claim to the extent of dower of Rs.500,000/- is concerned, the same is based on evidence available on record, particularly FIR No.1105/2020, P.S. Saddar Rawalpindi registered on complainant of brother of the claimant wherein snatching of the gold ornaments and other articles was alleged. The determination to the extent of maintenance allowance is based on the evidence of the parties, which cannot be disturbed in writ jurisdiction. The concurrent findings of the learned Family Court as well as the Appellate Court are well reasoned and do not warrant any interference.
16. The power of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to interfere with the orders of the learned courts below is, therefore, limited to the inquiry whether the learned courts below have acted or undertaken the proceedings in accordance with law. It is, therefore, settled law that a writ of certiorari cannot be used as a substitute of appeal or revision as its scope is limited. The august Supreme Court in the case titled Rahim Shah v. The Chief Election Commissioner of Pakistan and another (PLD 1973 Supreme Court 24) has outlined the scope of writ of "certiorari" in the following words :- "It may be further observed that although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this constitutional jurisdiction cannot be enlarged to an appeal on facts, or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribunal of exclusive jurisdiction is final. The scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted."
17. The august Supreme Court in the case titled Muhammad Azim Khan Afridi v. The President of Pakistan through Principal Secretary and others (2023 SCMR 68) has observed and held as follows.- "It is also a settled principle of law that when exercising constitutional jurisdiction, the High Court does not sit as a court of appeal. In the United Kingdom, the England and Wales Court of Appeal in Rex v. Northumberland Compensation Appellate Tribunal (1952 1 KB 338) held that: It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an Order or decision for re-hearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an Order or decision or irregularity, or absence of, or excess of jurisdiction where shown. The control is exercised by removing an Order or decision, and then by quashing it."
In the light of the above it would be in the interest of justice to remand the matter in W.Ps No. 4233/2021 and 322/2022 to the learned court of appeal to rectify the errors in the impugned judgments and decrees as highlighted above.
18. For what has been discussed above, W.Ps. No.672/2023 and 1906/2023 titled "Muhammad Ismail v. Additional District Judge & others" and "Syeda Bint-e-Zehra v. Muhammad Ismail & others" are without merit and are accordingly dismissed. Whereas, W.P. No. 4233/2021 titled "Zeeshan Ali v. Yasmeen Bibi & others" and W.P. No. 322/2022 titled "Yasmeen Bibi v. Zeeshan Ali & others" are allowed in the terms that the matter is remanded to the learned court of appeal by setting aside the judgments-in-appeals dated 02.10.2021. The respective appeals of the parties shall be deemed to be pending. The learned Appellate Court is expected to afford an opportunity of hearing to the parties and decide the matter in accordance with law expeditiously, preferably within a period of one month from the date of receiving a certified copy of this judgment.