02/10/2022
Related Nikkhanama:
نکاح نامہ :
PLD 2022 Supreme Court 686
Columns No.13 and 16 of the Nikkahnama to be interpreted on the basis of the intention between the parties rather than the headings of the columns, in particular when there is a dispute between the value of the dower and items.
Needless to say that Nikahnama is a deed of marriage-contract entered into between the parties, husband and wife, and the contents of its clauses/columns, like clauses of other contracts, are to be construed and interpreted in the light of intention of parties. The High Court has rightly ascertained the intent of the parties for mentioning four Kanal agriculture land in column No.16 of the Nikahnama, irrespective of its placement in a particular column. It is a matter of common knowledge that the persons who solemnize Nikah or the Nikah Registrars are mostly laymen, not well-versed of legal complications that may arise from mentioning certain terms agreed to between the parties in any particular column of the Nikahnama. Therefore, it becomes the foremost duty of courts dealing with disputes arising out of the terms entered in the Nikahnama, to ascertain the true intent of the parties and give effect thereto accordingly, and not be limited and restricted by the form of the heading of the particular columns wherein those terms are mentioned.
We, on our own independent appraisal of the facts and circumstances of the case, agree with the finding of the High Court,
which is not only supported by the contents of the compromise deed dated 18.12.2012 executed by both the petitioner and the respondent, but also by the contents of the entries of columns No. 13 and 16 of the Nikahnama. The figures (1) and (2) mentioned in columns No.13 and 16 respectively leave little room to guess what the true intention of the parties was; they clearly show that both (1) seven tola gold ornaments mentioned as dower in column No.13 and (2) four Kanal agriculture land mentioned in column No.16 were the dower. The figures (1) and (2) need not be mentioned if only one of them was to be payable as dower. Further, seven tola gold ornaments and four Kanal agriculture land have no parity of value to be agreed as an alternate of each other. Therefore, the finding of the High Court on the issue of dower is perfectly correct and is in consonance with the principles of law enunciated by this Court in the cases of Asma Ali and Yasmeen Bibi. As for the claim of the respondent for her maintenance, the Family Court and the District Court held that since the respondent is not residing with the petitioner she is not entitled to maintenance. The High Court has overturned these findings and held the respondent entitled to receive maintenance from the petitioner, while observing that the respondent showed her willingness to go with the petitioner during hearing the petition, but the petitioner, who had contracted second marriage, flatly refused to take her to his house. We find nothing wrong in the decision of the High Court. A wife who is willing to, but cannot, discharge her marital obligations for no fault of her own, rather is prevented to do so by any act or omission of her husband is legally entitled to receive her due maintenance from her husband, and the latter cannot benefit from his own wrong.
As per Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act 1962, the questions regarding dower are to be decided, subject to the provisions of any enactment for the time being in force, in accordance with Muslim Personal Law (Shariat) in cases where the parties are Muslims. It hardly needs reiterating that the Holy Quran and the Sunnah of the Prophet of Islam (pbuh) are the primary sources of Muslim Personal Law (Shariat) in Islam. The payment of dower (mahr) at the time of marriage was a customary practice in Arabia before the advent of Islam, but it was paid to the guardians of the bride, such as, her father or other male relative, as bride-price and the bride herself did not receive a penny of it. This practice of paying dower as bride-price to the male guardians of the bride was reformed by the Islam through the Quranic commands6 of paying dower as the bride-wealth to the bride herself, who becomes the sole owner of it. The Holy Quran also forbids the Believers to take back anything from their wives out of the paid dower even it be a great sum. In Islam, the payment of dower to bride at marriage is an obligation that is imposed by the God Almighty, and is thus an intrinsic and integral part of a Muslim marriage. It is considered an obligatory bridal gift offered by the bridegroom to the bride graciously as a manifestation of his love and respect for her. Some Muslim men compliment the obligatory bridal gift, dower, with other gifts and presents as per their financial capacity. Under the Islamic law a wife’s right to be maintained by her husband is absolute so long as she remains faithful to him and discharges, or is willing to discharge, her own matrimonial obligations. A Muslim husband is bound to maintain his wife even if no term in this regard is agreed to between them at the time of marriage or she can maintain herself out of her own resources. The Holy Quran enunciates that men are the protectors and maintainers of women because the God Almighty has given the one more strength than the other and because they support them from their money. And the Holy Prophet of Islam (pbuh) has instructed Muslim men to provide their wives with maintenance in a fitting manner and declared it to be the right of the women.
