PLJ 2021 SC 124
Family Courts Act, 1964 (XXXV of 1964)--
----S. 2(d)--Constitution, 1973, Art. 185(2)--Suit for recovery of dower against father in law and mother in law was decreed--Husband was not party in recovery suit--Suit was filed after sixteen years of marriage--Mother in law was neither a party in nikahnama nor signatory--Mother in law was not authorized her husband to make any commitment on her behalf--Challenge to--Mst. “K” was not a signatory to nikahnama nor had executed any other document agreeing to transfer property, either before or after a house was constructed on it, to her daughter-in-law--Mst. “K” also did not grant a power of attorney or otherwise authorize her husband to make any commitment—‘Declaration’ executed by respondent stated that his father had agreed to construct and deliver possession of property, which is of little consequence because, firstly, it is self-serving document and, secondly, property was owned by Mst. “K” who had not agreed to part with it--Mst. “K” had permitted her husband, expressly or impliedly, to transfer Property in terms of Section 41 of Transfer of Property Act is not borne out by record--Mst. “K” neither held out that her husband was ostensible owner of Property nor that she had authorized him to transfer it--Mehreen also lead no evidence to show that she had attempted to ascertain that Haji had power to transfer Property--Therefore, “M” could not avail benefit of Section 41 of Transfer of Property Act--If spouses of other sons of Mst. “K” were given land it was inconsequential since every marriage and its terms are independent from every other and there is no legal concept of parity--Mst. “K” was not a signatory to nikahnama nor had she, at any stage, agreed to transfer Property--Mst. “K” husband could not have made a commitment on her behalf with regard to Property--“M” also did not array her husband as a party to suit even though he was a necessary party thereto--“M” undoubtedly had a valid claim against her husband with regard to dower promised by him at time of marriage, as mentioned in nikahnama, and could claim value of Property from him however she elected not to do so but instead lay claim to Property--“M” could still claim from her husband any part of her dower which remains unpaid--Appeals allowed. [Pp. 129, 130 &135] A, B, C, D, E & F
Mr. M. Munir Piracha, ASC and Mr. Mehmood A. Sheikh, AOR for Petitioners (In C.P. No. 154 of 2019).
Sardar Muhammad Aslam, ASC and Ch. Akhtar Ali, AOR (In C.P. No. 155 of 2019).
Mr. Imtiaz Ali, Advocate Supreme Court and Haji M. Zahir Shah, AOR (absent) for Respondent No. 1 (In both petitions).
Mr. Amir Javed, ASC and Mr. H.M. Zahir Shah, AOR (absent) for Mansoor Ishaq: (R.No. 3 in C.P.No. 154/19 and R.No. 5 in C.P. No. 155/2019)
Nemo for other Respondents.
Date of hearing: 7.2.2020.
PLJ 2021 SC 124
[Appellate Jurisdiction]
Present: Qazi Faez Isa and Sardar Tariq Masood, JJ.
versus
Mst. MEHREEN MANSOOR and others--Respondents
C.Ps. Nos. 154 and 155 of 2019, decided on 7.2.2020.
(On appeal against the judgment dated 17-12-2018 passed by Peshawar High Court, Peshawar in W.P. No. 2037-P of 2017).
Order
Qazi Faez Isa, J.--Mehreen and Mansoor married on 15th May 1995 and the Nikahnama mentioned the terms of their marriage. Form II of the Muslim Family Laws Ordinance, 1961 prescribes the official form of nikahnama and lists 25 questions.[1] In this case question numbers 13 to 16 and the answers thereto in the Nikahnama are relevant, therefore, the said pre-typed questions and their handwritten answers are reproduced hereunder:
13۔ مہر کی رقم | حق مہر مبلغ 500000/- (پانچ لاکھ روپیہ) ضرب پاکستانی سکہ رائج الوقت۔ |
14۔ مہر کی کتنی رقم معجل ہے اور کتنی موجل۔ |
|
15۔ آیا مہر کا کچھ حصہ شادی کے موقع پر ادا کیا گیا اگر کیا گیا ہے تو کس قدر | 75 تولے سونا بصورت طلائی زیورات سب حاضر ہیں۔ |
16۔ آیا پورے مہر یا اس کے کسی حصہ کے عوض میں کوئی جائیداد دیگئی ہے اگر دیگئی ہے تو اس جائیداد کی صراعت اور اس کی قیمت فریقین کے مابین طے پائی ہے۔ | ایک عدد مکان رقبہ ایک کنال پر واقع 28 آبدرہ روڈ یونیورسٹی ٹاون پشاور میں بنا کر دیا جائے گا۔ |
2. Sixteen years after the marriage, on 30th June 2011, Mehreen filed a suit claiming a house, measuring 1 kanal situated on plot No. 28 Abdara Road, University Town, Peshawar ("the Property"), or its prevailing market value of thirty-three million rupees, which she said constituted part of her dower (mehr) and as mentioned in clause 16 of the Nikahnama. The suit was filed in Family Court-II, Peshawar. Mehreen arrayed Haji Muhammad Ishaq Jan and Mst. Khurshida Ishaq, respectively her father-in-law and mother-in-law, as the only defendants in the suit. The suit was decreed by the learned Family Judge on 3rd May 2014. Both the father-in-law and mother-in-law filed separate appeals but both were dismissed, vide consolidated judgment dated 15th February 2017 of the learned Additional District Judge-X, Peshawar. Thereafter, they filed two separate writ petitions before the Peshawar High Court, Peshawar
but these too were dismissed, vide impugned judgment dated
17th December 2018. It is against these three judgments that the
two petitions under consideration have been filed; Mst. Khurshida Ishaq has filed Civil Petition for Leave to Appeal No. 155 of 2018 and Civil Petition for Leave to Appeal No. 154 of 2018 is filed by the two sons and one daughter of Haji Muhammad Ishaq Jan who had passed away.
3. The learned Sardar Muhammad Aslam represents Mst. Khurshida Ishaq ("Mst. Khurshida") and the learned Mr. Muhammad Munir Piracha represents the two sons and daughter of the late Haji Muhammad Ishaq Jan; they have joined cause before us. The learned counsel state that admittedly Mst. Khurshida owned the Property which was conveyed to her through a registered document (Exhibit DW-2/1) dated 1st June 1964, however, Mst. Khurshida was not a party to the Nikahnama and neither gave nor agreed to give the Property to Mehreen. And, Mst. Khursida's husband (Haji Muhammad Ishaq Jan) was not given a power of attorney or any other authority to make a commitment on her behalf or in respect of the Property; reliance was placed on the case of Muhammad Siddiq v Shahab-ud-Din[2] where a father was held not liable under Muslim law for the dower of his son. They next submitted that the family suit was filed in a family court but the plaintiff (Mehreen) did not array her husband (Mansoor) as a party therein nor demanded her dower from him which defect in the suit was fatal to it. The learned counsel state that in terms of Section 2(d) of the Family Courts Act, 1964[3] ("Act") the husband was a necessary party because he was primarily liable to pay the dower but he was not arrayed nor did the learned Judge of the Family Court order his joinder as a party. Section 2(d) of the Act stipulates, that, "'party' shall include any persons whose presence as such is considered necessary for a proper decision of the dispute." By not arraying her husband (Mansoor) it can be assumed, submit learned counsel, that Mehreen and Mansoor had collusively filed the suit to try to get the Property without making Mansoor liable. The suit was filed sixteen years after the marriage and execution of the Nikahnama, and the spouses (Mehreen and Mansoor) are still happily married, it is submitted. Concluding their submission the learned counsel state, that Mst. Khurshida and her husband, respectively Mehreen's mother and father in law, took care of their own interests, they filed their separate written statements, they engaged their own counsel who represented them and independently contested the case.
4. Mr. Imtiaz Ali, the learned counsel representing Mehreen, states that the matter has been concurrently decided and the learned Judge of the High Court upheld the decisions of the two Subordinate Courts and there is no legal reason for this Court to substitute its findings with three well-reasoned judgments. The learned counsel refers to a document (Exhibit PW-4/1) executed by Mehreen's father-in-law which confirms what the Nikahnama records, that Mehreen's dower comprised of five hundred thousand rupees, seventy-five tolas of gold jewelry and the Property, however, the dispute is only about the Property. The learned counsel refers to Section 41 of the Transfer of Property Act, 1882[4] and the case of Kanwal Nain v Fateh Khan[5] to contend that Mst. Khurshida had permitted her husband, who was the ostensible owner of the Property, to transfer the Property to their daughter-in-law therefore Mst. Khurshida is estopped from preventing the completion of the transaction. The learned counsel cites the case of Muhammad Anwar Khan v. Sabia Khanam[6] in which the father of the bridegroom had committed to transfer his house to the bride and it was held that the father had to fulfil his commitment, which principle the learned counsel states is equally applicable herein. Referring to the case of Parveen Umar v. Sardar Hussain[7] it is submitted that the different properties (money, gold and the land with house) mentioned in the Nikahnama were collectively given as dower and were not alternatives. The learned counsel concludes by referring to the case of Muhammad Arif v. District and Session Judge, Sialkot[8] as precedent for the proposition that the father and mother of a plaintiff's husband can be arrayed as parties in a family suit.
4. Mr. Amir Javed, the learned counsel representing Mansoor submits that Mansoor got married when he was at University and then settled abroad with his wife Mehreen. He refers to Section 2 (d) of the Act and states that Mansoor was not a necessary party because the relief sought in the suit was in respect of the Property and against Mst. Khurshida and her husband; the decree was also passed against them, and not against Mansoor, therefore, it was not necessary to array Mansoor as a defendant, and if the learned Family Judge felt that he was a necessary party the learned Judge could have impleaded him but did not do so. Mansoor's parents should abide by the commitment made with regard to the Property at the time of the marriage, the learned counsel concludes.
5. Reference has been made to a document titled 'Declaration' (Exhibit DW-1/1) made before the Consul General of Pakistan Toronto, Canada by Mansoor wherein he states on oath that, "According to the local traditions my father, promised my wife Ms. Mehreen Mansoor a dower of 1 kanal land with a fully constructed house on 28 Abdara Road, University Town Peshawar, Pakistan … and [I have] advised her to claim the same from my father…". Reference was also made to the inscription written by Haji Muhammad Ishaq Jan, on page 2 of the Nikahnama, stating that a house would be constructed on the said plot and given to Mehreen (Exhibit Pw-4/3-A). In response to our query we were informed by the learned counsel representing Mansoor and Mehreen that when the suit was filed they were happily living together as husband and wife in Canada and continue to do so.
6. We have heard the learned counsel for the parties and with their able assistance examined the documents on record, the judgments of the Subordinate Courts, the impugned judgment of the High Court, provisions of the laws that have been referred to and the cited precedents.
10. We however find that the old European and American concepts at times permeate into the thinking even of judges in Pakistan. The doctrine of 'coverture' subsumed a married woman's identity. Sir William Blackstone[11] described the doctrine of coverture: "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a femecovert …".[12] In her comprehensively researched book[13] Amy Louise Erickson writes, "Under common law a woman's legal identity during marriage was eclipsed - literally covered - by her husband. As a 'feme covert', she could not contract, neither could she sue nor be sued independently of her husband. … The property a woman brought to marriage - her dowry or portion - all came under the immediate control of her husband".[14] It was only on the passing of the Married Women's Property Act, 1882 that in England a married woman became, "capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee".[15]
11. The situation in the United States of America of married women was no better, they had no legal existence apart from their husbands. The reason for a married woman's servile status was sought to be explained by the Supreme Court of Illinois,[16] "It is simply impossible that a married woman should be able to control and enjoy her property as if she were sole, without practically leaving her at liberty to annul the marriage".[17] The unjustness of the laws was severely criticized. Elizabeth Cady Stanton listed in the Declaration of Sentiments[18] "the injuries and usurpations on the part of man toward woman"[19] - "He has made her, if married, in the eye of the law, civilly dead. He has taken from her all right in property, even to the wages she earns… the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands".[20] Harriet Beecher Stowe was another campaigner for women's rights, observing that, "[T]he position of a married woman… is, in many respects, precisely similar to that of the negro slave. She can make no contract and hold no property; whatever she inherits or earns becomes at that moment the property of her husband. … [I]n English common law a married woman is nothing at all. She passes out of legal existence."[21]
12. Discrimination against women pervaded in other areas too. It was only in 1960 that women in America could open bank accounts without their husband's permission[22] and this right was acquired by women in the United Kingdom as late as 1975.[23] The professions were also barred to women. Mrs. Myra Colby Bradwell had passed the bar examinations but was not allowed to practice law; she asserted her right to practice but in 1873 the United States Supreme Court[24] held, that denying Mrs. Bradwell the right to practice law violated no provision of the federal Constitution and added, "That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth".[25]
13. The position of women in Islam is different. "Men shall have the benefit of what they earn and women shall have the benefit of what they earn".[26] The Holy Qur'an also prohibits taking another's property - "Do not eat up (or consume) one another's property".[27] Women's share in inheritance are also precisely ordained.[28] What a woman inherits is hers and hers alone; neither her husband, father, brother or son has any entitlement to it; a woman also does not need permission to dispose of her property or to acquire property. The bridal gifts given at the time of marriage are also the wife's property, these can be added to but not subtracted by the husband.[29] It is also recommended that husbands make wills to provide for their wives.[30]
14. A husband and wife, who were both Government servants, had challenged an office memorandum of the Government which did not treat husband and wife alike. The Federal Shariat Court[31] comprehensively attended to the question of discrimination and the status of a married woman in Islam and after referring to a number of verses of the Holy Qur'an[32] held:
"These Verses clearly confirm the right of earning, owning and possessing by male and female - all in the like manner - and emphasizes again and again that no one can be deprived of his/her due share for any reason. Both are equally entitled to their own individual shares on the basis of their services, duties and functions performed by each one. Each one is at par with the other in this respect, without any discrimination. The rights of each one accrued thus in no manner could be infringed, curtailed or diminished."[33]
The Federal Shariat Court held that, "one of the principles which is the hallmark of Islamic injunctions is the principle of equality before law and equal protection of law for all people, irrespective of their gender, colour or creed".[34] Elaborating further the Court observed, that:
"This fraternity and equality is all pervading and is not only a matter of form but is indeed a matter of substance. It emphasizes equality before law and equal protection of law. In this respect, Sharia does not make any distinction between the citizens of an Islamic State. Here we find no concept of discrimination in the administration of justice between one person and another on any basis. In social and legal perspectives, no human being can be denied or deprived of any fundamental right, nor any juridical right can be reserved for any particular group on the external consideration of his wealth, status caste or colour or any other ground. It clearly shows that equality before law and equal protection of law is the cardinal principle which runs like a golden chord in all Injunctions of Islam."[35]
15. A chasm existed between a woman's position in Islam to that which prevailed till a century ago in Europe and America where upon marriage a wife stood deprived of her property, which became that of her husband to do with it as he pleased. However, in the Muslim world the situation was altogether different and this has been the position since over fourteen hundred years. Muhammad Mustafa (peace be upon him) was employed by lady Khadijah bint Khuwaylid (may Allah be pleased with her), the first convert to Islam, who spent abundantly from her personal wealth in the cause of Islam; she retained her properties and wealth after her marriage to the Prophet (peace be upon him). In Islamic societies Muslim ladies not only retained their properties but also their identities after marriage. The noble lady Ayesha (may Allah be pleased with her) on becoming a widow on the death of the Prophet (peace be upon him) was not cloistered but became one the greatest narrators of hadith and between three to four thousand recorded in the six main hadith collections[36] cite her as their source; she was also a teacher, a great scholar and made her presence felt on the battlefield.
16. British rule and Colonization of the subcontinent disrupted Muslim society's links with the past but without completely severing ties with shariah.[37] To restore the privileges and status of women in Islam a number of laws were enacted, including the Dissolution of Muslim Marriages Act, 1939.[38] The importance of a Muslim married woman's right to property can be gauged from the fact that, if her husband, "disposes of her property or prevents her from exercising her legal rights over it", she could obtain dissolution of her marriage because it constituted "cruelty"[39] The proposition which has been put forward that Mst. Khurshida's husband could deprive her of the Property is both against shariah and the Dissolution of Muslim Marriages Act. Shariah, including the rights it grants women, was made unassailable by the Constitution of the Islamic Republic of Pakistan,[40] which specifically stipulates that all existing laws are to conform to the injunctions of Islam as laid down in the Holy Qur'an and sunnah. The Fundamental Rights in the Constitution include the "right to acquire, hold and dispose of property"[41] and "no person shall be compulsorily deprived of his[42] property save in accordance with law";[43] these provisions do not distinguish between men and women. Therefore, unless a married woman elects to gift, sell or otherwise dispose of her property neither her husband nor any male relative has any right over it.
18. Therefore, for the reasons mentioned above, these petitions are converted into appeals and allowed by setting aside the judgments of the Courts below and by dismissing the suit filed by Mehreen against Haji Muhammad Ishaq Jan and Mst. Khurshid Ishaq. There shall however be no order as to costs.
(Y.A.) Appeals allowed
[1]. Form II of nikahnama as prescribed by Rules 8 and 10 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 (VIII of 1961).
[2]. AIR 1927 Allahabad 364.
[3]. Family Courts Act, 1964 (Act No. XXXV of 1964).
[4]. Transfer of Property Act, 1882 (Act No. IV of 1882).
[5]. PLD 1983 Supreme Court 53.
[6]. PLD 2010 Lahore 119.
[7]. 2003 YLR 3097.
[8]. 2011 SCMR 1591.
[9]. PLD 2010 Lahore 119.
[10]. Transfer of Property Act, 1882 (Act No. IV of 1882).
[11]. William Blackstone, Commentaries on the Laws of England (Volume 1, Oxford University Press, 1765).
[12]. William Blackstone, Commentaries on the Laws of England (Volume 1, Oxford University Press, 1765), pg. 442.
[13]. Army Loise Erickson, Women and Property in Early Modern England (London and New Yor: Routledge, 1993).
[14]. Army Loise Erickson, Women and Property in Early Modern England (London and New York: Routledge, 1993) pg. 24.
[15]. Section 1(1) of the Married Women's Property Act, 1882.
[16]. Cole v Van Riper, 44 III 58 (1867).
[17]. Cole v Van Riper, 44 III 58 (1867), pg. 63.
[18]. Elizabeth Cady Stanton, A History of Woman Suffrage (Vol. I, Rochester, New York: Fowler and Wells, 1889).
[19]. Elizabeth Cady Stanton, A History of Woman Suffrage (Vol. I, Rochester, New York: Fowler and Wells, 1889), pg. 70.
[20]. Elizabeth Cady Stanton, A History of Woman Suffrage (Vol. I, Rochester, New York: Fowler and Wells, 1889), pg. 70-71.
[21]. Melissa Homestead, American Women Authors and Literary Property, 1822–1869 (1st edn, New York: Cambridge University Press, 2005), pg. 29.
[22]. Stephanie Coontz, The Way We Never Were: American Families and the Nostalgia Trap (New York: Basic, 1992).
[23]. Equal Credit Opportunity Act, 1974 and Sex Discrimination Act, 1975.
[24]. Bradwell v. The State, 83 U.S. 130 (1873).
[25]. Bradwell v. The State, 83 U.S. 130 (1873), pg.132.
[26]. Al-Qur’an, Surah An-Nisa (4) verse 32.
[27]. Al-Qur’an, Surah An-Nisa (4) verse 29.
[28]. Al-Qur’an, Surah An-Nisa (4) verses 7, 11 and 12.
[29]. Al-Qur’an, Surah An-Nisa (4) verses 24 and 25; Surah Maidah (5) verse 5; Surah Mum’tahanah (60) verse 10.
[30]. Al-Qur’an, Surah Al-Baqarah (2), verse 240.
[31]. Kazim Hussain v Government of Pakistan, PLD 2013 Federal Shariat Court 18.
[32]. Al-Qur’an, Surah Al-Baqarah (2) verse 143, Surah Al-Imran (3) verse 171, Surah An-Nisa (4) verse 32, Surah Al-Kahf (18) verse 30 and Surah Az-Zumar (39) verse 70.
[33]. Kazim Hussain v Government of Pakistan, PLD 2013 Federal Shariat Court 18, pg. 39.
[34]. Kazim Hussain v Government of Pakistan, PLD 2013 Federal Shariat Court 18, pg. 36.
[35]. Kazim Hussain v Government of Pakistan, PLD 2013 Federal Shariat Court 18, pg. 39.
[36]. Sahih al-Bukhari, Sahih Muslim, Sunan Abu Dawud, Sunan al-Tirmidhi, Sunan al-Nasa’i, and Sunan Ibn Majah.
[37]. The words of Almighty Allah in the Holy Qur’an and sunnah - the teachings of Prophet Muhammad (peace be upon him).
[38]. The Dissolution of Muslim Marriages Act, 1939 (Act VII of 1939).
[39]. Section 2(viii)(d) of the Dissolution of Muslim Marriages Act, 1939.
[40]. Article 227 of the Constitution of the Islamic Republic of Pakistan.
[41]. Article 23 of the Constitution of the Islamic Republic of Pakistan.
[42]. Article 263(a) of the Constitution of the Islamic Republic of Pakistan states, “words importing the masculine gender shall be taken to include females”.
[43]. Article 24 of the Constitution of the Islamic Republic of Pakistan.
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