2018 C L C 1844
Family Courts Act (XXXV of 1964)---
----S.5 & Sched.---Suit for recovery of amount on account of divorce---Pronouncement of divorce by husband---Conditions---Scope---Entry in Nikahnama---Effect---Petitioner/ex-husband contended that both the Courts below had wrongly granted dower to respondent/ex-wife as no condition could be attached to the right of husband to divorce his wife---Respondent/ex-wife contended that she was entitled for recovery of Rs. 100,000/- as incorporated in Column No. 19 of Nikahnama---Validity---Islam provided right to the husband to divorce his wife free from any encumbrance and such right could not be abridged with conditions, as the relationship between husband and wife could continue only with their free consent and tie of marriage was beyond any restrictions---In the present case, marriage was dissolved, by a divorce deed by the husband without intervention of the Court---Claim of the wife solely rested upon the entry in Nikahnama, which in no way could override the Injunctions of Islam---Both the Courts below had erred in law while holding wife entitled to claim Rs.100,000/- on account of divorce---High Court set aside impugned judgments passed by two Courts below---Constitutional petition was allowed accordingly.
Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another 2008 SCMR 186 ref.
Mst. Shaista Shahzad and another v. Additional District Judge and others PLD 2012 Lah. 245 and Mannan Feroz v. Shomaila 2015 YLR 1235 distinguished.
Iftikhar Hussain Butt for Petitioner.
Zahid Ahmed Raja for Respondent No.1.
Date of hearing: 10th October, 2017.
MUHAMMAD ASIF VS Mst. NAZIA RIASAT
2018 C L C 1844
[Lahore (Rawalpindi Bench)]
Before Mirza Viqas Rauf, J
MUHAMMAD ASIF----Petitioner
Versus
Mst. NAZIA RIASAT and 2 others----Respondents
Writ Petition No.817 of 2017, heard on 10/10/2017.
JUDGMENT
MIRZA VIQAS RAUF, J.----The petitioner namely Muhammad Asif married to respondent No.1 (hereinafter referred as "respondent") on 22nd October, 2011 and accordingly Nikahnama was registered under The Muslim Family Laws Ordinance, 1961. This matrimonial tie could not last long and finally it ended in divorce through a divorce deed No.2931 dated 3rd July, 2015. The "respondent" then instituted a suit for recovery of dower in the shape of four Tolas gold ornaments and Rs.100,000/- stipulated in column No.19 of Nikahnama. The suit was contested by the petitioner, who submitted his written statement, controverting the assertions contained in the plaint. From the divergent pleadings of the parties, learned Judge Family Court framed necessary issues whereafter evidence of both the sides was recorded. On completion of evidence, suit was partly decreed by way of judgment dated 29th June, 2016. Both the sides, feeling dissatisfied from the said judgment and decree, preferred their respective appeals before the learned Additional District Judge, Rawalpindi, which were consolidated. The appeals were, however, dismissed vide judgment and decree dated 16th February, 2017, hence this petition.
2.This petition is though at pre-admission stage, but in view of issue involved in the instant petition, both the sides have agreed to treat the same as Pacca case.
3.Learned counsel for the petitioner contended that suit instituted by the "respondent" was though dismissed to the extent of dower but she was held entitled to recover Rs.1,00,000/- in terms of entry in column No.19 of Nikahnama. It is emphasized that matrimonial tie ended in divorce, which right cannot be abridged by any condition. Learned counsel argued that though there was an entry in column No.19 of Nikahnama that in case of divorce, the petitioner shall pay Rs.1,00,000/- to the "respondent" but such a condition was invalid.
4.Conversely, learned counsel for the "respondent" submitted that in view of specific entry in the Nikahnama, the "respondent" was rightly held entitled to the amount of Rs.1,00,000/- on account of divorce. It is argued that concurrent findings of both the learned Courts below rest upon the reasoning. Learned counsel contended that law does not provide any clog on putting such restriction in the Nikahnama. In support of his contentions, learned counsel places reliance on "Mannan Feroz v. Shomaila" (2015 YLR 1235) and "Mst. Shaista Shahzad and another v. Additional District Judge and others" (PLD 2012 Lahore 245).
5.I have heard learned counsel for both the sides at considerable length and also perused the record in order to appreciate their respective contentions in a proper and beneficent manner.
6.The moot point involved in the instant petition is as to whether pronouncing of divorce by the husband can be made conditional or such right can be made dependant of any condition. In order to properly comprehend the matter in issue, it would be advantageous to first have a glance on the relevant facts, which form basis of the instant controversy. It is an admitted fact that parties were married on 22nd October, 2011 and terms of matrimonial tie were incorporated in Nikahnama Exh.P2/2 wherein an entry in column No.19 was incorporated wherein the petitioner (husband) was made liable to pay Rs.1,00,000/- to the "respondent" in case of divorce. In order to resolve the controversy in hand, it would be expedient to have a recourse to the Divine Law (Quran). In Surah "At-Talaq" Allah Almighty commands as under: -
It is manifestly clear from the above that exercise of power of divorce is free from any encumbrance and such right cannot be abridged with conditions, as the relationship between husband and wife can only run with their free consent and such tie is beyond any restrictions, curtailing their right to live together or to part.
7.Para 307 of Muhammadan Law by D.F. Mulla defines different kinds of divorce which reads as under: -
307. Different forms of divorce.----The contract of marriage under the Muhammedan Law may be dissolved in any one of the following ways: (1) by the husband at his will, without the intervention of a Court; (2) by mutual consent of the husband and wife, without the intervention of a Court; (3) by a judicial decree at the suit of the husband or wife. The wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after marriage, but she may, in some cases, obtain a divorce by judicial decree.
When the divorce proceeds from the husband, it is called talak; when it is effected by mutual consent, it is called khula or mu-bara'at according to the terms of the contract between the parties."
8.In the instant case, the marriage was dissolved through a divorce deed Mark-B by the petitioner (husband) at his will without intervention of the Court. The whole claim of the "respondent" rests upon the entry in paragraph 19 of Nikahnama, which to my mind, in no way can override the Injunctions of Islam. While going through the judgments cited by learned counsel for the "respondent" in the case of "Mst. Shaista Shahzad and another" supra; and "Mannan Feroz" supra; it is observed that in the first case, the proposition was a bit different from the case in hand. So, judgment in the case of "Mst. Shaista Shahzad" supra is not applicable. Adverting to the law laid down in "Mannan Feroz" case, it is observed that in the case of "Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another" (2008 SCMR 186), the Hon'ble Supreme Court of Pakistan, while dealing with the proposition in hand, held as under: -
"3. Contention raised on behalf of the petitioner is that learned Family Judge as well as the learned Judge of Sindh High Court failed to take into account paragraph 17 of the Nikahnama, the provisions of which have already been mentioned above. According to him it was incumbent upon the family Court to award Rs.2,50,000/- while granting decree by way of Khula in favour of petitioner. When confronted with the question as to whether parties could place restriction on their respective rights given to them by Shariat Law, Mr. Akhlaq Ahmed Siddiqui was unable to advance any plausible ground. His only contention was that such condition was embodied in the Nikahnama by way of safety and for prolongation of marriage contract, as it would deter both the parties from bringing an end to the marriage contract. This contention to say the least is absolutely frivolous as it is against the basic principle of law which require the parties to remain in marital ties in a peaceful and tranquil atmosphere and are not required to be bound by stringent conditions to remain in marriage bond."
9.After having an overview of judgment in the case of Muhammad Bashir Ali Siddiqui (Supra) there can be no second opinion that principles laid down by the honourable Apex Court shall prevail in terms of Article 189 of The Constitution of Islamic Republic of Pakistan, 1973. For the foregoing reasons, I am of the considered view that both the learned Courts below, while holding the "respondent" entitled to claim Rs.1,00,000/- on account of divorce, have erred in law and the impugned judgments and decrees are fraught with illegalities. Resultantly, this petition is allowed. As a consequence thereof, judgments and decree of both the learned Courts below dated 16th February, 2017 and 29th June, 2016 are set aside being illegal and unlawful. As a sequel thereof, suit instituted by the "respondent" stands dismissed with no order as to costs.
MQ/M-61/L Petition allowed.
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