2022 C L C 24[Lahore]Before Safdar Saleem Shahid, JMUJAHID KAMRAN----PetitionerVersusMst. SAIRA AZIZ and 2 others----RespondentsWrit Petition No.32191 of 2021, heard on 30th June, 2021.
(a) Muslim Family Laws Ordinance (VIII of 1961)---
----Ss.5 & 9---Nikahnama, contents of---Suit for recovery of maintenance/dower amount---Column No. 20 of Nikahnama---Entry of Rs.25,000/- as monthly maintenance allowance---Allegation of cruelty by husband---Petitioner/defendant claimed for restitution of conjugal rights and also filed a suit for cancellation of conditions/entries of Columns Nos. 14, 16, 17, 19 and 20 of Nikahnama on the ground that the same were illegal and incorporated without his consent in deceitful manner---Family Court partially decreed the respondent's suit to the extent of entitlement of the recovery of maintenance at rate of Rs.25,000/- per month with 10% annual increase from date of marriage till the date of judgment---Petitioner's suit was dismissed---Appeals filed by both parties were also dismissed---Validity---Wife could be justified in living separately if the husband treated her with cruelty or did not pay prompt dower---No disagreement or point of cruelty was quoted/proved by respondent other than the demand of dower---No particular point cited/proved by petitioner as to alleged disobedience except the allegation that respondent remained only one day in his house---Petitioner did not prove his version that columns of Nikahnama were afterwards filled in and were the result of forgery---All witnesses of Nikahnama admitted their signatures over the same---Petitioner had not proved that the copy of Nikahnama was not given to him at that time---Petitioner was bound to pay maintenance allowance according to column No.20---Case of respondent was based on column No.20, which could not be dealt with under the conditions of S.17A of the Family Courts Act, 1964---Neither the Court had to see the financial status of husband nor to fix the maintenance on the conditions mentioned in S.17A---Order as to 10% annual increase was not according to the spirit of Column No. 20 of Nikahnama---Date and Majlis of Nikah and signatures on Nikahnama by respective person were admitted---Execution of Nikahnama was proved by the respondent---Nikahkhwan, appearing as witness, had certified that all the columns were filled at that time with consent of parties---Presumption would be that the Nikah Pert (paper) was handed over to the petitioner on that very day which was requirement of law after the registration of the same in Union Council---Petitioner did not prove that the entries in the columns were not in his knowledge---Entries of column No. 19 limiting the absolute right of Talaq of the petitioner were against the spirit of the instructions of Almighty Allah, hence, declared void ab initio and not binding to the parties---High Court declared entries of Column No.19 as null and void---Constitutional petition was partly allowed.
(b) Muslim Family Laws Ordinance (VIII of 1961)---
----S.5---Nikahnama, contents of---Scope---Nikahnama is a very important document and it's all columns are legally binding on both the parties---Any right given through Nikahnama to woman is her right strictly protected by law---Woman may sue her husband regarding the past maintenance allowance on the basis of agreement in Nikahnama---All she has to do is to prove the execution of document/Nikahnama where such condition has been agreed between the parties.
Mohammedan Law by D.F. Mulla (S. 278) ref.
(c) West Pakistan Rules under the Muslim Family Laws Ordinance, 1961---
----R.8(1)---Nikah---Proof---Witness, requirement of---Wakeel as witness---Apart from the spouses and their wakeel, if any, at least two witnesses are required to certify the proceedings of "Ijab o Qabool" and that should be conducted in one Majlis---Person who has been appointed as wakeel for the bride, cannot be the witness of Nikah---Wakeel has his specific identity as to accept the proposal on behalf of the bride---Nikahkhawan can also be the witness of the Nikah if he has also heard the "Ijab o Qabool" by himself.
(d) Muslim Family Laws Ordinance (VIII of 1961)---
----S. 5---Qanun-e-Shahadat (10 of 1984), Art. 79---Nikahnama, proof of---Execution of document---Anything which has been brought in writing, if it is witnessed by two persons and signed over the same, under S.79 of Qanun-e-Shahadat, 1984, that document is proved one and in case of denial from that, the person denying the same has to produce the cogent reasons and solid grounds.
(e) Muslim Family Laws Ordinance (VIII of 1961)---
----S.5---Nikahnama, contents of---Proof---Entries in columns---If Nikahnama was written at the time and it was signed in the same Majlis, then it will be presumed that the same was stated to the lady and the proposal and acceptance were there regarding dower which has been mentioned in the Columns Nos. 13 & 14 of Nikahnama.
(f) Muslim Family Laws Ordinance (VIII of 1961)---
----S.7---Talaq, absolute right of---Islamic Law---Husband has an absolute right to divorce his wife---No condition is described in Shariah as well as in the codified law.
Muhammad Bashir Ali Siddiqui v. Muhammad Sarwar Jahan Begum 2008 SCMR 186 ref.
(g) Muslim Family Laws Ordinance (VIII of 1961)---
----S.5---Nikahnama, contents of---Injunctions of Islam---Anything contained in Nikahnama which is against the spirit of Islam or the orders of Allah and Prophet (peace be upon him) cannot bind the parties even if has been made with the consent of the parties.
Iftikhar Ahmad Mian for Petitioner.
Ghulam Rasool Sial for Respondent No.1.
Date of hearing: 30th June, 2021.
JUDGMENT
SAFDAR SALEEM SHAHID, J.----The instant petition is directed against the consolidated judgments and decrees dated 14.12.2020 and 31.03.2021, passed by the learned Judge Family Court and the learned Additional District Judge, Ahmadpur Sial, District Jhang.
2. Brief facts necessary for disposal of the instant petition are that the petitioner was married with respondent No.1 on 17.12.2017. Respondent No.1 on 23.02.2019, filed a suit for recovery of maintenance allowance and dower amount of Rs.15,00,000/- along with gold ornaments weighing 4-tolas, alleging that at the time of Nikah, Rs.15,05,000/- along with 4-tolas gold ornaments was fixed as dower, out of which only an amount of Rs.5000/-, being prompt, was paid at the time of Rukhsati. Further alleged that as per columns No.20 of the Nikah Nama the petitioner was also bound down to pay Rs.25,000/- per month to respondent No.1 as maintenance allowance. According to respondent No.1, the petitioner being owner of landed property, cattle etc. earns approximately 80/90 thousand rupees and could easily pay the maintenance allowance as claimed in the plaint. Respondent No.1 also alleged that behavior of the petitioner was cruel from the very first day and lastly he ousted her from his house after 14-days of marriage.
3. The petitioner resisted the suit by filing written statement on 20.04.2019, wherein he raised certain preliminary objections, denied the conditions having been fixed in the Nikah Nama and claimed that dower amount was fixed only Rs.5000/-, which was paid at the time of marriage, which fact could be clearly seen in the video recorded at the time of Nikah. The petitioner claimed that respondent No.1 left his house on the very next day of marriage and did not come back in spite of his best efforts, therefore, she is not entitled to any maintenance allowance. In addition to the prayer for dismissal of the suit of respondent No.1, the petitioner also prayed that his written statement be also considered as a suit for restitution of conjugal rights. Thereafter, on 09.11.2019, petitioner also filed a suit for cancellation of conditions mentioned in columns Nos.14, 16, 17, 19 and 20 of the Nikah Nama, on the ground that the same were illegally incorporated without his consent and in deceitful manner. Respondent No.1 resisted the suit filed by the petitioner on the grounds taken in her own suit.
4. After the pretrial reconciliation having failed, the learned Judge Family Court framed the following issues:-
1. Whether the plaintiff is entitled to recover maintenance allowance, if so, at what rate and for which period? OPP
2. Whether plaintiff is entitled to recover Rs.15,00,000/- and gold ornaments weighing 04-tolas in lieu of dower from the defendant as prayed for? OPP
3. Whether the defendant is entitled to obtain a decree for restitution of conjugal rights as per prayer made by him in his written statement? OPD
3-A.Whether defendant Mujahid Kamran obtains a decree for cancellation of conditions mentioned in column No.14, 16, 17, 19 and 20 of Nikahnama dated 17.12.2017 over foil (پرت ) No.1 to 4 between the parties as prayed for? OPD
4. Relief.
The learned Judge Family Court recorded evidence of the parties and having gone through the same, vide consolidated judgment and decree dated 14.12.2020, partially decreed the suit of respondent No.1 in the terms that she was held entitled to recover maintenance allowance at the rate of Rs.25,000/- per month with 10% annual increase from the date of marriage till her legal entitlement, whereas her claim for recovery of dower amount of Rs.15,00,000/- along with gold ornaments weighing 4-tolas was dismissed. The claim of the petitioner for restitution of conjugal rights was, however, decreed but subject to payment of monthly maintenance allowance decreed in favour of respondent No.1, whereas suit of the petitioner for cancellation of conditions mentioned in the Nikah Nama was dismissed. Feeling aggrieved both the parties assailed the said judgment and decree, but the learned Additional District Judge through a consolidated judgment and decree dated 31.03.2021 dismissed both the appeals. The petitioner has assailed both the consolidated judgments and decrees through the instant petition.
5. The learned counsel for the petitioner argued that both the Courts below have erred in law, as on the one hand both of them decreed the suit of the petitioner for restitution of conjugal rights, but on the other hand, decreed the claim of respondent No.1 for recovery of maintenance allowance at the rate of Rs.25,000/- per month with 10% annual increase, as under the law a wife who refuses to perform her marital obligations, is not entitled to receive any maintenance. In this regard referred to Section 277 of the Mohammedan Law. Further submitted that the maintenance allowance has not been fixed by the Courts below on the basis of means of the petitioner, but the amount has been taken from the columns of Nikah Nama and that too with 10% annual increase, which is not justified. Even otherwise, the petitioner challenged the entries of the Nikah Nama, but the Courts below failed to appreciate this aspect.
6. The learned counsel for respondent No.1, on the other hand, resisted the arguments and submitted that the Courts below have passed the impugned judgments and decrees on the basis of the columns of the Nikah Nama, which was duly signed by the petitioner as well as the witnesses, after all the conditions mentioned in its columns were settled between the parties. According to the learned counsel, even from the very first day behavior of the petitioner towards respondent No.1 was cruel and after few days of marriage he himself ousted her from his house; and that, even if a husband and wife are residing separately, the husband is bound to provide maintenance to his wife.
7. Arguments heard. Record perused.
8. Section 17A of the Family Courts Act, 1964 explains:-
(1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteen day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case.
(2) In a decree for maintenance, the Family Court may:
(a) fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances; and
(b) prescribe the annual increase in the maintenance.
(3) If the Family Court does not prescribe the annual increase in the maintenance, the maintenance fixed by the Court shall automatically stand increased at the rate of ten per cent each year.
(4) For purposes of fixing the maintenance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant.
Section 277 of the Mohammedan Law defines that "the husband is bound to maintain his wife (unless she is too young for matrimonial intercourse), so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain his wife who refuses herself to him or is otherwise disobedient, unless the refusal and disobedience is justified by non-payment of prompt dower or she leaves the husband's house on account of his cruelty."
9. In order to understand the proposition in hand Section 278 of the Mohammedan Law is also very relevant which says that "if the husband neglects or refuses to maintain his wife without any lawful cause wife may sue him for maintenance allowance but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement."
10. The moot point in the proposition is whether the lady is entitled for maintenance allowance in view of the definition of Section 278 of the Mohammedan Law. Section 277 defines the rights and obligations of the husband and wife and binds the husband to maintain the wife. Some conditions also have been imposed and some grounds also have been mentioned on the basis of which husband may refuse to maintain the wife. Section 277 also explains that there is a justification for the lady to live separately if the husband treats her with cruelty or does not pay prompt dower. The suit for maintenance by the wife and children is filed under Section 17A of the Family Courts Act, 1964, where the Court determines the financial status of the husband and in view of the evidence of the parties fixes the maintenance allowance but if the maintenance allowance is agreed between the parties through an agreement then it will be payable in view of the said agreement. Nikah Nama is very important document, as its all columns are legally binding on both the parties. Any right given through Nikah Nama to lady is her right strictly protected by law. The wisdom of Section 278 of the Mohammedan Law, already mentioned in the earlier paragraph is that the lady may sue the husband regarding the past maintenance allowance on the basis of agreement. The lady has to prove the execution of the said document or if it is mentioned in the conditions of Nikah Nama, then certainly she has to prove the Nikah Nama where such entry has been agreed in between the parties. In the present proposition all the above mentioned points are questioned by the petitioner. The petitioner has challenged the contents of Nikah Nama, its columns Nos.14, 16, 17, 19 and 20, with specific allegation of fraud and forgery. It was asserted by the petitioner that the above mentioned columns of Nikah Nama were filled in after the completion of Nikah and without knowledge and consent of the petitioner. The version of the respondent was that the Nikah Nama was validly executed in between the parties; all the witnesses were present at the time of Nikah; all the entries were read over to all the persons present in the Majlis and thereafter Nikah Nama Exh.P.1 was signed by all the relevant witnesses. The allegation of the respondent was that she was expelled from his house by the petitioner. The point of cruelty was also raised by the respondent through the suit whereas the version of the petitioner was that the lady was disobedient and she herself left the house of the petitioner without any reason, rather with a planning only after one day of the Rukhsati on the ground of marriage of one of her relatives in the company of her relatives and while leaving the house of the petitioner she also took away 4-tolas gold ornaments. The learned Judge Family Court has not fixed any liability of separation in between the spouses on anybody. Actually no evidence was led on this particular point. It has been noted that there could be no such circumstances which could be quoted by any of the parties because period of settlement of the spouses is one day or maximum fourteen days. During this period no particular stance was referred by any of the parties either on the point of cruelty by the petitioner towards the respondent or matter of disobedience on the part of the respondent towards the petitioner. The respondent has produced PW.4 and PW.5, her maternal uncle and paternal uncle, but their evidence is hearsay and is not based on any logic. The lady in her statement has defined the torture as, when she demanded her dower, she was put under torture. She also has admitted in the evidence that she did not pass on this torture to any of her relatives. The cruelty is defined in Section 281(2) of the Mohammedan Law as, when it is of such a character as to render it unsafe for the wife to return to her husband's dominion, is a valid defence to such a suit. It may be, too, that gross failure by the husband of the performance of the obligation, which the marriage contract imposes on him. So, the point of cruelty to this extent that the lady demanded the dower and it was not paid can be considered. Otherwise, no other disagreement was quoted as proof of the behavior of the husband or cruelty towards the respondent. On the other hand, allegation of disobedience as alleged by the petitioner is not proved. No event or particular point is cited to prove that the respondent was disobedient. Specially keeping in view the version of the petitioner that the lady remained only one day in his house, it cannot be presumed that there was any disobedience on part of the respondent, unless proved and established by the petitioner. From the evidence the petitioner was, however, unable to prove the allegation regarding disobedience of the respondent. Furthermore, there is no other corroboration to the statement of the petitioner in this regard. So, in this case the lady becomes entitled to claim maintenance allowance in view of Section 278 of the Mohammedan Law, as it was the obligation of the husband to pay maintenance allowance as agreed in column No.20 of Exh.P.1, which says:-
So, the version of the petitioner that this column was afterwards filled in and is the result of forgery, was not proved by the petitioner. The lady was under obligation to prove the execution of the document Exh.P.1. The execution of Exh.P.1 has been proved, as all the witnesses admitted that they signed over the Nikah Pert and none of them stated that they had not signed the Nikah Pert. Another important factor is that the petitioner has not proved that the copy of Nikah Nama was not given to him at that time. Neither it is the claim of the petitioner nor has he stated regarding this factor at any stage. He did not assail the entries of Nikah Nama for a long time and when the lady filed suit for maintenance allowance and dower, then the petitioner challenged the entries of Exh.P.1. Hence, it is proved to the extent that the petitioner is bound to pay maintenance allowance of Rs.25,000/- in view of column No.20. So far as 10% annual increase is concerned, it is not according to the spirit of column No.20 of Exh.P.1 because the case of respondent for maintenance allowance will not be dealt with under the conditions of Section 17A of the Family Courts Act, 1964, but in fact it would be seen in view of column No.20 of Exh.P.1, where the parties agreed for payment of Rs.25,000/- per month as maintenance allowance. Neither the Court had to see the financial status of the husband under the situation nor the maintenance allowance has to be fixed on the conditions maintained in Section 17A of the Family Courts Act, 1964. Therefore, 10% annual increase as ordered by the learned Family Judge is not according to the spirit of column No.20 of Exh.P.1 and that is not justified. Hence, the order to the extent of 10% annual increase in the maintenance allowance is set aside and findings on issue No.1 is modified to the extent that the lady is entitled for maintenance allowance of Rs.25,000/- per month as agreed between the parties through Exh.P.1, from the date of marriage till her entitlement.
11. The other moot point is the Majlis of Nikah, ingredients of Nikah and valid conditions of Nikah. The petitioner's grievance was that the conditions mentioned in columns Nos.14, 16, 17, 19 and 20 of Nikah Nama were not read over to him at the time of proposal and acceptance by the Nikah Khawan with a further objection that nobody in the Majlis heard the same. So, in view of the principles of Sharia, these conditions are not part of Nikah and as such are not binding upon the petitioner, but no relevant evidence was produced by the petitioner. All the witnesses including Nikah Khawan stated that Nikah Pert Exh.P.1 was signed at the time of Nikah.
12. Another legal aspect of the proposition is that the petitioner filed an independent suit on 09.11.2019 after the filing of the suit by the respondent on 23.02.2019 with the subject for cancellation of the entries in Nikah Nama Exh.P.1 dated 17.12.2017 regarding the columns 14, 16, 17, 19 and 20. It was the stance of the petitioner that those columns were filled in afterwards and without consent of the petitioner. At the time of the arguments before this court, counsel for the petitioner also brought attention of this court towards the entries of Column No.19 that the entry mentioned against column No.19 is not only fabricated, fictitious and has been filled in without consent and knowledge of the petitioner but also it is against the original text of the Holy Quran/the orders of Allah and the spirit of the instructions of the Almighty Allah and Sunnah. Exh.P.1 is an admitted document where no witness has resiled from his signatures. The date of Nikah is admitted one. The Majlis of Nikah is admitted one. The signatures on the Nikah Nama Exh.P.1 by the respective persons is admitted one. Now the question about the columns mentioned by the petitioner with the allegation that those were filled afterwards, is a very serious allegation and the same were to be proved by the petitioner. Regarding the column No.19 of Exh.P.1, the reservation of the petitioner was that it was not only forged, but also against the principles of Islam. This Court is of the view that Nikah Nama Exh.P.1 and its execution has been proved by the respondent side. All the persons who were present in the Majlis have admitted that this Nikah Nama was executed and was signed by all the persons mentioned in Nikah Nama. Their signatures reflect that all persons were educated and they know the meaning and importance of the paper they were signing and certainly they had gone through the contents of the same. It is noted that all the irrelevant columns were crossed by drawing a line by the Nikah Khawan. The Nikah Khawan PW.2 himself has appeared in the witness box and has certified that all the columns were filled at that time with the consent of the parties.
13. The ingredient for the valid Nikah is that it should be solemnized in one Majlis. There is no definition of Majlis that how many people are required to constitute a Majlis. "Fiqah", says that apart from the spouses, at least two witnesses are required to certify the proceedings of Aijabu Qabool () and that should be conducted in one Majlis. Therefore, this is the requirement that the person, who had been appointed as Wakeel for the lady, cannot be the witness of Nikah. He has his specific identity as to accept the proposal on behalf of the lady. Therefore, he cannot be the witness to the Nikah if some person is appointed as Wakeel of the lady, then there must be two independent witnesses of the Nikah apart from said Wakeel of the lady. The Nikah Khawan, however, can also be the witness of the Nikah if he also hears the Aijabo Qabool by himself, of spouses. The objection of the petitioner was that the condition mentioned in column No.14 was not read by the Nikah Khawan at the time of announcing the Nikah. This column was afterwards filled, also the condition mentioned in column No.19 Ex.PA is against the spirit of Islam. Whereas the Nikah Khawan has clearly stated in his statement before the trial court that he read over all the columns and the parties were agreed to that and thereafter signed over it. In the Holy Quran it has been directed by the Almighty Allah that whenever you enter in some contract or you do some deal (معاملہ ), write it down and the scribe should write what he has been advised to write, correctly, and thereafter two male among you be made witness to that writing or one male and two females may be the witnesses to the such writing. The witnesses must be from the same "Majlis", and they also had heard and understood the spirit of contract, or deal which has been agreed between the parties and has been written in their presence, then they had signed it, as witness. Now the spirit is that anything which has been brought in writing if it is witnessed by two persons and that is proved that witnesses have signed over the same; then under Section 79 of the Qanun-e-Shahadat Order, 1984, that document is proved one and in case of denial from that, the person denying the same has to produce the cogent reasons and solid grounds. In this proposition nobody had resiled from his signatures. The witnesses who had appeared in the witness box including the petitioner had certified the signatures. It was the liability on the part of the petitioner to prove that the Nikah Khawan got Exh.P.1 late registered in the Union Council office and the copy of the Nikah Nama Exh.P.1 was never handed over to him. In the written statement by the petitioner, no such ground has been taken by the petitioner. It cannot be assessed from the written statement that when the petitioner came to know about the entries. Even in the suit filed although this is mentioned by the petitioner that all the Perts (pages) were with the Nikah Khawan but he did not mention and did not produce any evidence regarding the fact that on the day of Nikah the Pert (page) was not handed over to him. The Nikah Khawan appeared as PW.2. No such specific question was put to the witness PW.2, therefore, it will be presumed that the Pert Nikah was handed over to the petitioner on that very day which is requirement of law after the registration of the same in the Union Council. This is also not mentioned through the evidence of the petitioner that when he demanded the Nikah Pert (page) from the Nikah Khawan or he applied to the Union Council for obtaining the Pert of Nikah. Therefore, the version of the petitioner is not proved that the entries in the column were not in the knowledge of the petitioner. The witnesses of Exh.P.1 signed over the same in the same Majlis. So, Exh.P.1 is not a disputed document. Therefore, to the extent of the entries, the petitioner is not succeeded to establish his case.
14. Another point raised by counsel for the petitioner was about the validity of the Nikah that anything not mentioned as Haq Mehr at the time of Nikah, it cannot be added afterwards. It was the contention of the petitioner that at the time of Nikah, no such Haq Mehr was fixed Rs.15,00,000/- (rupees 1.5 million) as has been mentioned in column No.14. Neither this was proposed by the petitioner nor it was put to the lady for having the acceptance of the proposal of Nikah. The entry in Column No.14 was made afterwards. Therefore, the entry of Column No.14 cannot be determined as Haq-ul-Mehr and the same is not binding to the petitioner to pay the same in lieu of Haq Mehr. The lady also cannot claim as Haq Mehr that amount mentioned in Column No.14.
15. This court has given thoughtful consideration to the arguments advanced by counsel for the petitioner. The ingredients of Nikah are proposal and acceptance in one Majlis in presence of the witnesses and with the fixation of Haq-ul-Mehr. مثل Misle Dower may be fixed that is based on custom that in some families the dower is fixed according to the customs of the families and even if it is not fixed in specific words at that time, then at the time of Nikah the word used is that and the proposal and acceptance are made with the same words. Now it was for the petitioner to prove that the proposal of المہر حق mentioned in Column No.14 was neither offered by the petitioner nor it was proposed before the lady for the acceptance of the Nikah. Therefore, this entry was not valid and it cannot be termed as dower. This is custom rather mandatory that dower is always fixed between the parties prior to the solemnization of Nikah and it is to be proposed and accepted in presence of the witnesses in the same Majlis. Oral Nikah is also valid with all these conditions. If the Nikah Nama was written at that time and it was signed in the same Majlis, then it will be presumed that the same was stated to the lady and the proposal and acceptance were there regarding dower, which has been mentioned in Columns Nos.13 and 14 of the نکاح پرت . Since all the witnesses of the Nikah have singed over Exh.P.1 within the same Majlis at the same time immediately after the Nikah and they did not object at any of the entry at that time and even afterwards till the petitioner filed the suit on 9.11.2019 for cancellation of the entries of Exh.P.1, it will be presumed that the said columns were duly filled in at that time in the same Majlis at the time of Nikah and it was a valid المہر حق. The petitioner was unable to prove the allegation that it was neither mentioned at the time of pronouncement of Nikah nor it was written at that time in the same Majlis. No reliable evidence was produced by the petitioner. To this extent, issue No.3-A has been rightly decided by the learned trial court and was rightly upheld by the learned Addl. District Judge, the first Appellate Court.
16. Now, come to column No.19 and its content of Exh.P.1. The right of divorce is given by the Almighty Allah. However, Allah Almighty does not like the act of divorce. I would like to quote the references from the Holy Quran and from some very eminent case laws. In the Holy Quran in Surah Al-Baqra and Surah Talaq the delegation of right of divorce has been described in detail. Similarly, section 7(1) of the Muslim Family Laws Ordinance, 1964 deals with the matter of Talaq. The provision of section 105 of the Code of Muslim Personal Laws also certain this thing that a husband has an absolute right to divorce his wife. In this regard no condition is described in Sharia as well as in the codified law. The same proposition has been discussed in case of "Muhammad Bashir Ali Siddiqui v. Muhammad Sarwar Jahan Begum" (2008 SCMR 186). No condition can be imposed on the husband if he desires to divorce his wife. Because the right of divorce has been given by the Almighty Allah to the husband and this proposition has been discussed in detail. I place reliance on "Mst. Zeenat Bibi v. Muhammad Hayat and 2 others" (2012 CLC 837). Therefore, to this extent, there is no other view that no condition can be imposed on the right of the husband if he desires to divorce his wife. To this extent, the entries of Column No.19 are against the spirit of the instructions of the Almighty Allah. The petitioner has taken a specific plea that the entry against column No.19 is also added afterward without consent of the petitioner; rather it was not in knowledge of the petitioner; furthermore, it is against the injunctions of Islam, hence void, ab initio and liable to be cancelled. The court has decided the issue against the petitioner while observing that regarding those claim for cancellation of entries, no evidence was produced by the petitioner. But to this extent the answer regarding entry No.19 is not correct because to decide the entry of Column No.19, no evidence is required. It pertains to the instructions of the Holy Quran and Sunnah and anything contained in the document which is against the spirit of Islam or the orders of Allah and Muhammad (Peace Be Upon Him) cannot bind the parties even if had been made with the consent of the parties. So to that extent, the judgment on issue No.3-A is modified, there was no need of any evidence but from the bare reading of Column No.19, that is found against the injunctions of Islam, hence, declared void ab initio and not binding to the parties. But since the court had not passed any order regarding the same which could have effect adversely to the petitioner, therefore, this part of the judgment will have no effect on the other parts of the judgment. However, the entries of Column No.19 are declared void ab initio as these are against the injunctions of Islam. So to that extent, the prayer of the petitioner is allowed. Therefore, under the Constitutional Jurisdiction, this court holds that the entries of Column No.19 for imposing any condition on the husband to divorce his wife are null and void.
17. The lady is still the legally wedded wife of the petitioner and she had not been divorced. The lady is entitled for the monthly expenditure of Rs.25,000/- from the date of Rukhsati till the satisfaction of the decision of the Family Court dated 14.12.2020 where the decree of restitution of conjugal rights has been awarded by the court with the condition to pay the monthly maintenance allowance. Since the lady has not filed any appeal against that judgment, therefore, the decree to the extent of restitution of conjugal rights has attained finality and the respondent will not be entitled for any monthly expenditure/pocket money after the satisfying of the decree dated 14.12.2020, if the respondent does not settle down with the petitioner in lieu of the order of the Court for restitution of conjugal rights dated 14.12.2020. The condition of 10 percent per annum increase in the monthly expenditure is against the spirit of the document, which is declared null and void. Therefore, the finding on issue No.1 is modified to the extent that the lady is entitled to receive monthly expenditure @ Rs.25,000/- from the date of her marriage till the satisfaction of the decree passed by the learned Family Court dated 14.12.2020 and there will be no 10 percent increase per annum in the maintenance allowance.
18. The upshot of the above discussion is that the Writ Petition is partly allowed. The findings on issue No.1 are modified to the extent that 10 percent increase is not justified in the order. The lady is entitled for the monthly expenditure till the date of the decision and satisfaction of the judgment and decree, and the entries of Column No.19 are declared against the injunctions of Islam, hence, declared null and void. There is no order as to costs.
ZH/M-172/L Order accordingly.
0 comments:
Post a Comment