A. Whether columns No. 13 and 16 of Nikahnama are to be read separately or in conjunction with each other?
Ans. There is no cavil that marriage is a civil contract, which has for its object, the procreation and the legalizing of children and dower or “Mehr” is the sum of money or other property which the wife is entitled from the husband in consideration of the marriage. It is anobligation imposed upon a husband as a mark of respect to the wife and where a claim is made under a contract of dower, the Court should, unless it is provided by any legislative enactment, award the entire sum provided in the contract. The dower may be prompt or deferred. Prompt dower is payable immediately on demand. Where part of dower is described as Mu’wajjal i.e. deferred but no time limit is fixed for its payment, the time of such payment is either death or divorce. Dower may be in any form of property, tangible or intangible. Parties to the marriage contract i.e. bride and the bridegroom have freedom of contract to negotiate and settle the terms of marriage including dower. Dower is thus the only corollary for a valid marriage.
We are mindful of the fact that by virtue of entries in the Nikahnama, it is always bridegroom, who is on the receiving end and he has to be burdened with the liabilities under the entries in the Nikahnama. In view of well settled principles of law, such interpretation to the entries of Nikahnama would be given, which favour the bridegroom. Even otherwise, while interpreting the document, one has to infer plenary meaning therefrom and nothing can be imported beyond the contents of the document.
B. Whether entries in Nikahnama can operate against a person not privy to the document/Nikahnama۔?
Ans.It is reiterated that marriage is a civil contract. It establishes a firm bond of love, confidence, affection and mutual trust interse spouses. Allah Almighty, in Holy describes the re Qur’an lationship between the spouses as raiment worn to cover the body and says that “women were your garments and men are their apparel”. The Nikahnama in the Form annexed with the “Rules 1961” contributes to the confusion leading to reco marriage contract in the wrong columns . r ding of terms of the Manifestly, column No.13 for example seeks information in terms of the amount of dower whereas it is settle d law that dower can be in the form of an amount, tangible or intangible property. This Court has been approached by the parties with claim to the effect that movable and immovable properties specified in column No.13 are not enforceable for the said colum n only visualizes dower in terms of an amount. Column No.16 of the Nikahnama Form on the other hand postulates a question regarding property while treating that to be only in lieu of whole or any portion of the property and value thereof agreed between the parties so that it is clearly stated that the property in column No.16 is for how much part of the dower specified in column No.13 of the Nikahnama Form. Why is there no specific column in the Nikahnama Form regarding movable and/or immovable property in addition to the amount of dower in column No.13? If no value of the property is agreed between the parties and specified in the entry in column No.16 of a Nikahnama, can such property be treated to be in lieu of dower or any part thereof? If so, in lieu of how much part of the dower? How would intentions of the parties in specifying a property in column No.16 of the Nikahnama be construed where the amount of dower specified in column No.13 was promptly paid in entirety at the time of marriage? These are a f amongst many, ew, questions arising from the confusion caused by the manner in which Nikahnama Form has been prescribed and/or filled in. We are mindful of the fact that while making entries in the Nikahnama, oftenly in column No.16, some immovable propert y is incorporated, which sometimes owned by the mother or father of the bridegroom. It is oft repeated principle that no one can be deprived of his property without due course of law. If the property mentioned in Nikahnama is not owned by the bridegroom, r ather it is ownership of his father, mother or brother, who is neither signatory to the Nikahnama nor had agreed to transfer the same in favour of bride, entries in Nikahnama cannot be enforced against him/her and he/she cannot be deprived of his/her prope rty.
The situation, however, would become different when on behalf of bridegroom, his father, mother or any other person being owner of such property find mentioned in the Nikahnama becomes signatory of the Nikahanam, he/she binds himself/herself to the terms and conditions and as such, he/she parts with the ownership rights of the property in favour of bride.
Writ Petition-Family-Maintenance
2111-13
WASIF ALI ETC VS MRS. FAKHRA JABEEN ETC
Mr. Justice Mirza Viqas Rauf
13-12-2021
2021 LHC 7858
0 comments:
Post a Comment