WAJIHUDDIN AHMED, J.-Through this Constitutional Petition is questioned the direction of the learned Family Court, concurred in appeal, requiring the petitioner to make good the appropriated dower money to the respondent No. 1 in consideration of the decree of "Khula". The principal question urged in support of the Petition Is that the learned two Courts, in their Family Jurisdiction, inter alia, overlooked the provisions of Articles 102 and 103 of the Oanun-e-Shahadat, 1984, in holding that dower was actually paid to the petitioner-wife and was liable to be refunded as a consequence of "Khula".
2. It is an admitted position to which both the Courts have subscribed that the evidence on the point of payment of dower was contradictory in some respects. It is also an admitted position that the Nikahnama, which was exhibited as 4-A, and was not disputed as regards any of its contents, was either not considered or was not adverted to as regards its manifest particulars.
3. As to the oral evidence, the case of the petitioner-wife was that no dower was paid at all. From the side of the respondent No. 1-husband the oral testimony tended to suggest that either seven tolas of Gold or five such tolas (or equivalent in money) were given by way of dower money and this transpired before the Nikah, the gold or the money equivalent, it remaining unclear which, being passed on the mother of the petitioner-wife and, admittedly, not to the latter herself. In the first place, it may not have been in accordance with law to rely upon such contradictory, inconsistent and even ambiguous oral evidence. In the next place, dower is essentially the right of the wife and not of her parents, a question on which there can be no two opinions at law. In a country where, occasionally, women are sold as chattel by their parents or elders payment, if any, to such persons, as distinguished from the bride, can hardly qualify as dower under the pristine concepts of Muslim Personal Law. In that such evidence, being equivocal and inconsistent, remaining inconclusive in itself, was treated, as sufficient to prove payment of dower money should constitute an illegality, amenable to correction in the Constitutional jurisdiction of this Court.
4. The conclusion is strengthened when it is seen that the aforementioned oral evidence runs contrary to the stipulations in the Nikahnama. In order to ascertain as to what precisely figured in such Nikah-nama, R P of Family Suit No. 372/88 was called. In such suit the Nikah-nama was exhibited, without any objection from either side, as exhibit 4-A. The material clauses and the relevant entries in the Nikahnama are reproduced hereunder:- {{Urdu text missed}} (These terms, some of which were illegible or blurred in Exhibit 4-A, have been ascertained from the several copies of the Nikahnama, none of which were disputed and which had been placed on the records of the trial Court, the appellate Court and this Court. It may be mentioned that while entry against item 14 seems to be blank in the Nikahnama, the writing against items 15 and I6 therein appears to be over lapping)
5. On the evidence, taken as a whole, it became manifest that nothing was paid to the petitioner- wife at the time of or before the Nikah towards dower money and such dower was (deferred). It further followed that such were the actual terms of the marriage, duly reflected in a document, prescribed by law, which is the primary evidence in ail cognate matters, as implicit in Section 5 of the Muslim Family Laws Ordinance, 1961. The contents of this document could not have been routinely by passed on the basis of any oral testimony, more so, when the last was of a contradictory and shifting character.
6. This is not the end of the matter. The Qunun-e-Shahadat, 1984, pursuant to Article 1 (2) thereof, has been made applicable to all judicial proceedings in or before any Court, including a court martial, a tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction except those in arbitrations. "Court", under the Qanun, per Article 2 (1) (a), includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence. It is, however, manifest that the W.P. Family Courts Act, 1964, in Section 11 thereof, lays down its own procedure for recording of evidence and in its Section 17, except when expressly provided in such Act, categorically excludes the applicability of the Evidence Act, iW2 and the Code of Civil Procedure, 1908. Still, the Qanun-e-Shahadat, 1984, be^ fe a subsequent legislation could not be anticipated in the 1964 promulgation and the postulates of that statute, being later in time than the Family Courts Act, 1964, and of an overriding character, should reflect on the bar in the enactment last mentioned. It may be irrelevant in the context that the Qanun-e-Shahadat, 1984, largely and, often enough, even verbatim re-enacts the Evidence Act, 1872, which it repeals and which is expressly excluded from the proceedings in Family Courts, as already noted. This is so as, in law, the Qanun and the Evidence Act are independent and distinct statutes and exclusion or ouster of one cannot be equated with that of the other: The Qanun-e- Shahdat, remaining unaffected by the bar in Section 17 of the Family Courts Act, 1964, any provision in the Act of 1964, which directly comes in conflict with anything enjoined in the Qanun-e-Shahadat would make way, at least to the extent of inconsistency. Because the 1964 Act is a provincial enactment, I had occasion also to examine the VIRES of the Qanun, as regards the constitutional mandate for the Federal Legislature on the topic and find that the subjects occur in the Concurrent Legislative List of the Fourth Schedule to the Constitution at items Nos. 4 and 5 as "Evidence and Oath' recognition of laws, Public Acts and judicial proceedings", and "Marriage and divorce; infants and minors; adoption", respectively, implying that the Federal as well as the Provincial legislatures can suitably legislate on the subjects. The legislative competence, as well, is thus out of the way. The Qanun-e-Shahadat, 1984, resultantly, supersedes all or any postulates in the Family Courts Act, 1964, as be found running contrary to its mandates. Such mandates, accordingly, applied before the learned two Courts, exercising Family Jurisdiction. Relevantly, applicable parts of Articles 102 and 103 in the Qanun-e- Shahadat, 1984, equivalent to similar provisions in Sections 91 and 92 of the Evidence Act, 1872, are reproduced for ready reference:- "102. When the terms of a contract, or of a grant, or ol any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.
103. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last Article, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (l)-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.
Proviso (2)-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3)-The existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4)--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant, or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5)-Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6)-Any fact may be proved which shows in what manner the language of a document is related to existing facts.
7. It is now well settled that where the terms of a contract, and under Muslim Personal Law marriage is not a sacrament but a contract, are reduced to writing no oral evidence contravening the written terms of such contract is admissible except in circumstances clearly contemplated in the quoted Articles. It can hardly be argued that the present case is covered by any exception contemplated in Articles 102 and 103, as read together.
8. In the result, the only evidence on which the matter could be decided before the learned Courts, in the exercise of their matrimonial jurisdiction, was the Nikahnama, the basic document of the marriage itself. In that such Courts while pursuing their jurisdiction ignored or did not fully give effect to the terms in that document they acted illegally and otherwise than in accordance with law.
9. Confronted with this situation the learned counsel for the respondent No. 1-husband attempted to show that the column in the Nikahnama, specifically pertaining to the question whether the dower was prompt or deferred was left blank and urged that such circumstance indicated that dower had been paid in full by the respondent No. 1 before the Nikah, as was purportedly confirmed by the witnesses produced from his side. The argument is far-fetched and hardly of any substance.
In interpreting the stipulations in a document, even if of an equivocal, ambiguous or contradictory character, the whole such document is to be examined and more so, as to the inter connected terms occurring therein. Such terms, taken together in the Nikahnama, would indicate that the dower was in the nature of seven tolas in Gold and its money value, at the time, was assessed at Rs. 24,500 and further that the dower was deferred. That nothing was paid at the time of marriage or to the petitioner-wife personally is clear from the oral evidence on the record as well. To make assurance doubly sure, I also called the Nikah Khawan of the marriage, who stated in Court that the dower was deferred.
10. Learned counsel for the respondent-husband, however, referring to condition 15, lastly urged, that the value of Gold mentioned against that clause would vindicate that such value was passed on at the time of marriage. Several things militate against- this contention: In the first place payment, if any, may have been made to the mother of the petitioner though that too before marriage and not to the petitioner-wife. It is another matter that even this, on evidence, remains uncertain. Besides, as opined in Manzoor Ahmad Vs. Muhammad Nawaz PLD 1975 Lah. 739. Dower
(Mahr) cannot be equated with presents offered on the occasion of marriage, which may emanate from the side of the husband, bride's parents and even relatives, friends acquaintances etc. Secondly, if anything was, in fact, paid by way of dower there was nothing to preclude specific expression of that payment alongside the purported value ( ) of Gold. That this was not done is obvious and the reason may not be far to seek. Thirdly, any conclusion, as drawn by the learned counsel, would negate the express avowal in the Nikahnama that the dower was deferred and, upon the rules of evidence, this is not permissible, except in specific circumstances none of which subsist here. Lastly, in the manner in which the document has been filled, the location or sequence in which a particular detail is set out loses all relevance, the express written words alone suggesting the terms.
11. In this situation, it becomes clear that the Nikahnama is to be given effect to as it is and it contemplates deferred dower. The petitioner-wife has already given up her dower debt together with the maintenance allowance in consideration of obtaining "Khula" and, therefore, nothing remains due in law from the petitioner to the respondent No. 1. Finally, leamed counsel for the petitioner referred me to Mohammad Sanaullah Vs. Mohammad Ilyas. PLD 1987 Lah. 420. Which, in turn, draws upon Akhlaq Ahmed Vs. Kishwar Sulhari PLD 1983 S.C.
169. Opining that the conditions for grant of "Khula" do not come in the way of dissolution of marriage itself and, at best, give rise to a civil liability. The argument is beside the point because we are not concerned here with the effective date of "Khula" but with the enforcibility of the conditions thereof and such conditions if, imposed and if attaining finality, can be enforced in the very suit of dissolution of marriage without necessitating any further or independent action, which eventuality has not been enjoined in the Lahore Judgment to be in any manner precluded. It is another matter that nothing was enforcible here.
12. In the result, this petition was allowed through a short order passed in Court today, subject to reasons which were to follow. The above are the reason for the order.