2019 CLC 1635
Guardianship to mother was dismissed.
Guardianship to mother was dismissed.
2021 MLD 817 ISLAMABAD
Side Appellant : Ms. SHAZIA AKBAR GHALZAI
Side Opponent : ADDITIONAL DISTRICT JUDGE, ISLAMABAD (EAST)
لاہور ہائی کورٹ، لاہور کی خلع، طلاق اور تنسیخ نکاح پہ ایک خوبصورت ججمنٹ۔۔
2021 PLD Lahore 757
Grant of Khula and ground of dissolution of marriage due to taking additional wife in contravention of the provisions of The Dissolution of Muslim Marriages Act, 1939.
The terms of a contract of marriage between a man and a woman are contained in the Nikah Nama. The terms and conditions are meant to secure the rights and intentions of both the wife and the husband. The Nikah is a social contract between parties who are competent to enter into a valid marriage contract. It is settled law that a presumption of truth is attached to the Nikah Nama and it enjoys the status of a public document. A strong presumption of truth exists regarding entries recorded in the Nikah Nama. The titles of columns 13 to 16 relate to 'dower'. Column 17 of the prescribed form is titled as 'special conditions if any'. The prescribed form nor the headings of the entries are conclusive for the purpose of ascertaining the intentions of the two parties to the marriage contract. This Court has held in the Haseen Ullah’s case that the Nikah Nama is the deed of marriage contract entered into between the parties and its clauses/columns/contents are to be construed and interpreted in the light of the intention of the parties. The headings are not sufficient to determine the intention of the parties. It is also a settled principle of interpreting a contract that a court cannot imply something that is inconsistent with the express terms and a stipulation not expressed in the written contract can also not be applied merely because it appears to be reasonable to the court. We will now examine what the parties had intended regarding the dower which was settled between them and duly recorded in the relevant entries of the Nikah Nama. It is noted that 'dower' is obligatory because it is an essential requirement of a valid marriage contract. The validity of marriage remains effective even if the dower has not been expressly mentioned in the marriage contract because, in such a case, a reasonable dower, 'Mehr-ul-Misal' is presumed. Dower may be prompt or deferred. In case the parties have not specified the nature of the payment of dower then in such an eventuality it is presumed to be prompt as has been provided under section 10 of the Ordinance of 1961. It can be in the form of cash or property or both. In the case before us, the parties had settled an amount of Rs.500,000/- to be paid as cash 'on demand' and this was recorded in column 13 of the Nikah Nama. In column 14 the nature of dower i.e whether prompt or deferred was not specified Haseen Ullah’s case1 that the Nikah Nama is the deed of marriage contract entered into between the parties and its clauses/columns/contents are to be construed and interpreted in the light of the intention of the parties. The headings are not sufficient to determine the intention of the parties. It is also a settled principle of interpreting a contract that a court cannot imply something that is inconsistent with the express terms and a stipulation not expressed in the written contract can also not be applied merely because it appears to be reasonable to the court.2 We will now examine what the parties had intended regarding the dower which was settled between them and duly recorded in the relevant entries of the Nikah Nama. It is noted that 'dower' is obligatory because it is an essential requirement of a valid marriage contract. The validity of marriage remains effective even if the dower has not been expressly mentioned in the marriage contract because, in such a case, a reasonable dower, 'Mehr-ul-Misal' is presumed. Dower may be prompt or deferred. In case the parties have not specified the nature of the payment of dower then in such an eventuality it is presumed to be prompt as has been provided under section 10 of the Ordinance of 1961. It can be in the form of cash or property or both. In the case before us, the parties had settled an amount of Rs.500,000/- to be paid as cash 'on demand' and this was recorded in column 13 of the Nikah Nama. In column 14 the nature of dower i.e whether prompt or deferred was not specified There are various modes for lawfully dissolving the contract of marriage between a husband and wife. The primary mode is pronouncement of divorce by the husband or in case the right has been delegated to the wife then exercise of such right by her. The Act of 1939 was enacted to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women who are married under the Muslim law. Section 2 sets out the grounds for a decree for the dissolution of a marriage. The statute was amended and a new ground was inserted i.e. clause (iia) in the Act of 1939 through Muslim Family Laws Ordinance of 1961 (‘Ordinance VIII’). These amendments were made to give effect to the recommendations of the Commission on Marriages and Family Laws. Later section 13 of the Ordinance VIII was omitted through section 3 read with item no.18 of the second schedule of the Federal Laws (Revision and Declaration) Ordinance, 1981 (‘Ordinance of 1981’). It is noted that the insertion of clause (iia) in section 2 of the Act of 1939 had taken effect and was enforced. It is an admitted position that the Act of 1939 was not amended nor was clause (iia) of section 2 omitted or repealed there from. The effect of omission of section 13 of Ordinance VIII through the Ordinance of 1981 did not affect the insertion of clause (iia) in section 2 of the Act of 1939. Moreover, it is obvious from the language of section 13 of Ordinance VIII that the insertion made in the Act of 1939 was not intended to be of transitory nature nor that it shall take effect for a limited period. There is nothing in the language to construe that it was intended that the insertion would lapse on a specific date or on the happening of some contingency. The ground of dissolution of marriage inserted in section 2 of the Act of 1939 as clause (iia), i.e taking an additional wife in contravention of the provisions of the Ordinance of 1961, hence continued to be validly enforced and subsisting. This Court in the case of Abdul Majid has observed that the purpose of such omission or repeal was to strike out unnecessary enactments and cannot be construed as having brought any change in the relevant statute which was amended or in which provisions were inserted. The aim of the repeal or omission of those sections through which some other statute was amended was termed by this Court as 'legislative spring cleaning'. Section 7 of the Ordinance of 1981 expressly saved the effect of the repealed laws. It expressly provides that the repeal shall not affect the continuance of any such amendment unless a different intent was expressly stated in the law by which the amendment was made. Section 6-A of the General Clauses Act 1897 (‘Act of 1897’) provides that where any Central Act or Regulation repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal. As already noted, it is obvious from the clear language used in section 13 of Ordinance VIII that a different intention cannot be construed. The learned counsel for the defendant has drawn our attention to the judgment of the Peshawar High Court in the case of Rashid Ali4 in support of his contention that clause (iia) inserted in section 2 of the Act of 1939 stood repealed. With great respect, the view taken by the High Court appears to have been formed without taking into consideration the above factors, particularly section 7 of the Ordinance of 1981. The opinion of the High Court is per incuriam.
C.P.L.A.308-P/2019
Dr. Faryal Maqsood & another v. Khuram Shehzad Durani & others
Mr. Justice Athar Minallah
23-10-2024
فیملی کورٹ کسی بھی کیس کو منطقی انجام تک پہنچانے کے لیے کوی بھی طریقہ کار اختیار کرسکتی ہے۔۔جب تک وہ طریقہ کار خصوصی طور پر منع نہ ہوں۔۔۔ اجراء کے دوران Executing Court اجراء سے متعلق کوی بھی Issue Resolve کرنے کے لیے Issue frame کرکے شہادت ریکارڈ کراسکتی ہے۔۔
فیملی کورٹ کے چند منفرد فیصلے جو روٹین سے ہٹ کر ہیں اور امید ہے آپ کی نظر سے نہیں گزرے ہوں گے
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